8.3, IN THE DISTRICT COURT OF CLEVELAND COUNTY MAR 0 5 2019 STATE OF OKLAHOMA STATE OF OKLAHOMA, ex rel, MIKE HUNTER, ATTORNEY GENERAL OF OKLAHOMA, Plaintiff, V. PURDUE PHARMA L.P., et al., Defendants. Cour-1L Ci: {hf at th LYN WILLIAMS: Case No. CJ-2017-816 Judge Thad Balkman William C. Hetherington Special Discovery Master CONFIDENTIAL EXHIBITS A FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER DATED APRIL 16, 2018 DEF ENDANTS JANSSEN PHARMACEUTICALS. INC. AND JOHNSON AND OPPOSITION TO THE MOTION FOR DE-DESIGNATION EXHIBITS A SEALED PER COURT ORDER DATED APRIL 16, 2018, THAD BALKMAN DISTRICT JUDGE -CONFIDENTIAL- TO BE FILED ONLY UNDER SEAL IN THE DISTRICT COURT OF CLEVELAND COUNTY STATE OF OKLAHOMA STATE OF OKLAHOMA, ex rel., MIKE HUNTER, ATTORNEY GENERAL OF OKLAHOMA, Plaintiff, VS. (1) PURDUE PHARMA (2) PURDUE PHARMA, (3) THE PURDUE FREDERICK (4) TEVA PHARMACEUTICALS USA, (5) CEPHALON, (6) JOHNSON (7) JANSSEN PHARMACEUTICALS, (8) PHARMACEUTICALS, INC., n/k/a JANSSEN PHARMACEUTICALS, (9) JANSSEN PHARMACEUTICA, INC., n/k/a JANSSEN PHARMACEUTICALS, (10) ALLERGAN, PLC, f/k/a ACTAVIS PLC, f/k/a ACTAVIS, INC., f/k/a WATSON PHARMACEUTICALS, (11) WATSON LABORATORIES, (12) ACTAVIS and (13) ACTAVIS PHARMA, INC., f/k/a WATSON PHARMA, INC., Defendants. Case No. CJ-2017-816 Honorable Thad Balkman William C. Hetherington Special Discovery Master CONFIDENTIAL EXHIBITS FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER DATED APRIL 16, 2018 DEFENDANTS JANSSEN PHARMACEUTICALS. INC. AND JOHNSON AND OPPOSITION TO THE MOTION FOR DE-DESIGNATION The State seems to be under the impression that it is immune from the Court?s orders in this case. At least, that is the only conclusion that can be drawn from the State?s latest motion. Ignoring this Court?s prior rulings and circumventing the Court?s mandatory de-designation procedures, the State has moved to immediately disclose every con?dential document anssen has produced in this litigation. It is not as if the Court has not settled this issue; it has. The State has just chosen to ignore it. The State?s declared reasons for making this request are nakedly pretextual: Although the State purports to carry the banner of the President of the United States and the Oklahoma Legislature, its not-so-concealed goal in bringing this motion is to batter Oklahomans with sensationalistic headlines and to poison potential jurors against Janssen in advance of trial. The State?s eagerness to try this case in the media only underscores why this Court?s prior con?dentiality rulings were correct. Of course, ?[t]he public . .. deserves to know? the truth about this litigation. (Mot. at 4.) But Due Process requires that the public learn that truth through the orderly presentation of evidence and argument at a fair trial?not through calculated media campaigns or dumps of con?dential documents, ripe for misinterpretation. The State will have its day in Court. Its motion to litigate its case in the press should be denied. The State?s motion is meritless even apart from its improper objective to taint the jury pool. For one, the motion violates this Court?s Amended Protective Order. Instead of meeting and conferring with anssen, as the order requires, the State has come directly to the Court. And rather than identify the speci?c materials it feels should not remain con?dential, the State has pointed to four documents and asked to strip protection from everything anssen has produced in discovery. If the State believes there are documents that have been mistakenly designated as con?dential, it should follow the Court?s protective order and meet and confer with Janssen about them. The State?s blatant violation of that protocol warrants denial of its motion. Procedure aside, the State offers no reason to de-designate any materials. The four excerpts it has plucked do contain con?dential commercial information?indeed, the Court has already found similar documents protected for that very reason. The Court has likewise already rejected the State?s argument that anssen forfeited any con?dentiality interest when it sold several opioid businesses in 2016. The only thing that has changed since the Court made that ruling is that the 0 State has identi?ed materials it believes will in?ame public opinion. But that is no reason to depart from that earlier ruling. To the contrary, it con?rms the importance of continuing to prevent the State from strategically disclosing Janssen?s con?dential commercial information. The State?s motion to launch a media campaign to bias the jury pool should be denied in its entirety. ARGUMENT The State?s motion is an undisguised attempt to generate pretrial publicity to in?uence public opinion and taint the jury pool. But even if the motion advanced a legitimate purpose, it would still fail because (1) it violates this Court?s prescribed de-designation procedure, and (2) it offers no reason to de-designate every document Janssen has produced in discovery?indeed, it does not identify a single non-con?dential document. 1. The Motion Should Be Denied Because It Violates The Amended Protective Order It is well~settled in Oklahoma that ?the production of sensitive documents should be allowed in the least intrusive manner.? YWCA of Oklahoma City v. Melson, 1997 OK 81, 944 P.2d 304, 312 n.45. The Amended Protective Order honors this principle by allowing the parties to designate certain categories of documents as con?dential. Amended Protective Order 2, 4. One of those categories is ?con?dential research, development or commercial information,? APO 2, which is separately protected under Oklahoma law. 12 0.8. 3226(C)(1)(g) (authorizing district court to order ?that a trade secret or other con?dential research, development or commercial information not be disclosed or be disclosed only in a designated way?). The Amended Protective Order also speci?es procedures the parties must use to challenge con?dentiality designations. Id. 14. The party challenging a con?dentiality designation ?must begin the process by conferring directly with [designating] counsel? and must not only ?explain the basis for its belief that the con?dentiality designation was not proper? but also ?identify the speci?c information that it believes is not con?dential.? Id. 14(a), The State has done neither, and its motion ?agrantly violates these requirements. The State made no effort to meet and confer before ?ling its motion. And instead of identifying speci?c information that is not con?dential, the State has tabbed portions of four documents and implied that, because they happen to be in?ammatory when taken out of context, neither they nor any other document anssen has produced can possibly be considered con?dential. Like any other litigant, the State must satisfy court orders. If it had qualms with a particular con?dentiality designation, it was obligated to follow the Amended Protective Order by meeting and conferring about the relevant document. It did not, and its motion should be denied for that reason alone. 2. The Only Designations The State Does Identify Are Entitled To Con?dential Treatment Even if the State?s motion were proper, it still fails because it does not identify a single document that was improperly designated. Three of the State?s four documents are excerpts of materials detailing con?dential marketing analyses (Mot., Exs. 2?3) and draft business strategies Ex. 4). See Mot., Exs. 2-4. Oklahoma courts have treated such information as con?dential. See Online Oil, Inc. Production Group, LLC, 2015 WL 13694638, at *2 (Okl. Dist. July 30, 2015) (?nding information concerning the inter-relation of entities along with strategies and business models con?dential). Courts across the country have consistently permitted similar documents to be produced as con?dential even in connection with dispositive court ?lings. See, Conn Credit I, LP v. TF Loan C0. LLC, 2016 WL 8231153, at *1 (ED. Tex. May 9, 2016) (sealing documents that ?contain[ed] a large amount of con?dential business information? ?led in support of summary judgment); SMD Software, Inc. v. EMove, Inc., 2013 WL 1091054, at *3 (E.D.N.C. Mar. 15, 2013) (ordering that documents containing ?marketing strategies? be maintained under seal). The fourth document is an excerpt from a risk-bene?t assessment prepared for anssen for purposes of product development, which contains proprietary research and commercial information. See Ex. A Mot, Ex. 5.1 Courts routinely permit such research to be treated as con?dential. See, e. Cumberland Packing Corp. v. Monsanto C0., 184 F.R.D. 504, 506 (E.D.N.Y. 1999) (?Documents falling into categories commonly sealed are those containing trade secrets, con?dential research and development information, marketing plans, revenue information, pricing information, and the like?). Each document is therefore entitled to protection under the Amended Protective Order and Oklahoma law. See APO 2 (de?ning ?con?dential research, development, and commercial information? as ?Con?dential?); 12 0.8. 3226(C)(1)(g) (extending protection to same). In fact, the Court has already concluded that documents containing similar information are entitled to protection under the Amended Protective Order. See 12/26/18 Order at 4. In its last order addressing de-designation, the Court found that Exhibits 17, 18, and 25 to Janssen?s motion were con?dential because they set forth business strategies, marketing targets and strategies, and con?dential research information. Exhibits 2?5 contain the same type of information, and so they merit the same treatment. Apparently recognizing that the documents do contain con?dential information, the State advances two blanket justi?cations for de-designating all of Janssen?s documents. First, it 1 A full and complete copy of Exhibit 5 to the State?s Motion is attached hereto as Exhibit A. 5 contends that because Janssen divested the bulk of its opioid business in 2016, it can no longer claim a con?dentiality interest in the documents. The State has already made that argument. See 12/18/2018 Opp. at 3-4. And this Court rejected it when it held that pre-2016 documents containing con?dential business information were entitled to con?dential treatment. See 12/26/18 Order at 4. As that ruling recognized, the purchasers of Janssen?s opioids businesses have a continuing interest in what is now their con?dential commercial material. And anssen owes those purchasers a contractual duty to safeguard that interest: The agreement governing the sale of its Nucynta product line, for example, requires anssen to ?keep con?dential and not disclose to any third party? the con?dential information belonging to the businesses it divested. EX. 1.01, 6.26). Again, this Court has already recognized this. See 12/26/18 Order at 4. The State cites no compelling reason to depart from that ruling. Second, the State contends that de-designation is warranted to help the President and state legislature address opioid abuse. Mot. at 16-17. But speculating about the needs of absent third parties is no rationale for the State to de-designate anything. The President and the Oklahoma Legislature have ample authority and resources to investigate, obtain information, and make policy about opioid use. The State, as a party to this lawsuit, is in no position to demand the de- designation of a mountain of con?dential documents just to accommodate an intentionally prejudicial media strategy in the months leading up to trial.2 Policymakers and citizens of Oklahoma will hear a complete story at trial: trial is a search for the truth.? Matter of Estate of Lambe, 1985 OK CIV APP 38, 710 P.2d 772, 776. 2 The cases relied upon by the State, Collier v. Reese, 2009 OK 86, 11 18, 223 P.3d 966, 974 and Wiggins v. Barge, 173 F.R.D. 226, 229 (ND. 111. 1997), did not address con?dential commercial information, nor was con?dentiality governed in those cases by a preexisting, stipulated protective order. 6 Interested parties will then have an opportunity to evaluate evidence and decide what to believe. In the meantime, the Court should not permit the State to corrupt the jury pool by improperly de- designating con?dential documents en masse as part of an effort to try this case before the Court even comes to order. CONCLUSION For the foregoing reasons, the Court should deny the State?s motion to de-designate in its entirety. Respectfully submitted, B: gm -111, Benjamin H. Odom, OBA No. 10917 John H. Sparks, OBA No. 15661 Michael W. Ridgeway, OBA No. 15657 David L. Kinney, OBA No. 10875 ODOM, SPARKS JONES, PLLC Suite 140 HiPoint Of?ce Building 2500 McGee Drive Norman, OK 73072 Telephone: (405) 701-1863 Facsimile: (405) 310-5394 Email: Odomb@odomsparks.com Email: sparksj@odomsparks.com Email: ridgewaym@odomsparks.com Email: kinneyd@odomsparks.com Larry D. Ottaway, OBA No. 6816 Amy Sherry Fischer, OBA No. 16651 Andrew Bowman, OBA No. 22071 Jordyn L. Cartmell, OBA No. 31043 Kaitlyn Dunn, OBA No. 32770 FOLIART, HUFF, OTTAWAY BOTTOM 12th Floor 201 Robert S. Kerr Avenue Oklahoma City, OK 73102 7 Telephone: (405) 232-4633 Facsimile: (405) 232?3462 Email: Email: Email: Email: Email: Of Counsel: Charles C. Li?and Wallace Moore Allan Sabrina H. Strong MYERS, LLP 400 S. Hope Street Los Angeles, CA 90071 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 Email: Email: tallan@omm.com Email: sstrong@omm.com Stephen D. Brody David Roberts MYERS, LLP 1625 Street NW Washington, DC 20006 Telephone: (202) 383-5300 Facsimile: (202) 383-5414 Email: sbrody@omm.c0m Email: droberts2@omm.com ATTORNEYS FOR DEF ENDANTS JANSSEN PHARMACEUTICALS, INC., JOHNSON JOHNSON, JANSSEN PHARMACEUTICA, INC. JANSSEN PHARMACEUTICALS, INC., AND ORTHO-MCNEIL-JANSSEN PHARMACEUTICALS, INC. JANSSEN PHARMACEUTICALS, INC. CERTIFICATE OF MAILING Pursuant to Okla. Stat. tit. 12, and by agreement Of the parties, this is tO certify on March 5, 2019, a true and correct copy of the above and foregoing has been served Via electronic mail, to the following: Mike Hunter ATTORNEY GENERAL FOR THE STATE OF OKLAHOMA Abby Dillsaver Ethan Shaner GENERAL COUNSEL TO THE ATTORNEY GENERAL 313 NE 21St Oklahoma City, OK 73105 Telephone: (405)521-3921 Facsimile: (405) 521-6246 Email: mike.hunter@oag.ok.gov Email: abby.dillsaver@oag.ok. gov Email: ethan.shaner@oag.ok.gov Michael Burrage Reggie Whitten J. Revell Parrish WHITTEN BURRAGE Suite 300 512 North Broadway Avenue Oklahoma City, OK 73102 Telephone: (405) 516-7800 Facsimile: (405) 516-7859 Email: mburrage@whittenburragelaw.com Email: rwhitten@whittenburragelaw.com Email: rparrish@whittenburragelaw.com Bradley Beckworth Jeffrey Angelovich Lloyd Nolan Duck, 111 Andrew Pate Lisa Baldwin Brooke A. Churchman Nathan Hall Suite 200 512 North Broadway Avenue Oklahoma City, OK 73102 Telephone: (405) 516-7800 Facsimile: (405) 516-7859 Email: bbeckworth@nixlaw.com Email: jangelovich@nixlaw.com Email: tduck@nixlaw.com Email: dpate@nixlaw.com Email: lbaldwin@nixlaw.com Email: bchurchman@nixlaw.com Email: nhall@nixlaw.com Robert Winn Cutler Ross Leonoudakis Cody Hill NIX, PATTERSON, LLP Suite B350 3600 North Capital of Texas Highway Austin, TX 78746 Telephone: (512) 328-5333 Facsimile: (512) 328-5335 Email: winncutler@nixlaw.com Email: rossl@nixlaw.com Email: codyhill@nixlaw.com Glenn Coffee GLENN COFFEE ASSOCIATES, PLLC 915 North Robinson Avenue Oklahoma City, OK 73102 Telephone: (405) 601-1616 Email: gcoffee@glenncoffee.com ATTORNEYS FOR PLAINTIFF 10 Sanford C. Coats Joshua D. Burns CROWE DUNLEVY, PC Suite 100 Braniff Building 324 North Robinson Avenue Oklahoma City, OK 73102 Telephone: (405) 235-7700 Facsimile: (405) 272-5269 Email: sandy.coats@crowedunlevy.com Email: joshua.burns@crowedunlevy.com Of Counsel: Sheila Bimbaum Mark S. Cheffo Hayden A. Coleman Paul A. LaFata Lindsay N. Zanello Bert L. Wolff Mara C. Cusker Gonzalez DECHERT, LLP Three Bryant Park 1095 Avenue of Americas New York, NY 10036-6797 Telephone: (212) 698-3500 Facsimile: (212) 698?3599 Email: sheila.birnbaum@dechert.com Email: mark.cheffo@dechert.com Email: hayden.coleman@dechert.com Email: paul.lafata@dechert.com Email: lindsay.zanello@dechert.com Email: bert.wolff@dechert.com Email: Benjamin F. McAnaney Hope S. Freiwald Will W. Sachse Chelsea M. Nichols Cory A. Ward Meghan R. Kelly DECHERT, LLP 2929 Arch Street Philadelphia, PA 19104 Telephone: (215) 994-4000 Facsimile: (215) 655-2043 11 Email: benjamin.mcananey@dechert.com Email: hope.freiwald@dechert.com Email: will.sachse@dechert.com Email: chelsea.nichols@dechert.com Email: cory.ward@dechert.com Email: meghan.kelly@dechert.com Erik W. Snapp DECHERT, LLP Suite 3400 35 West Wacker Drive Chicago, IL 60601 Telephone: (212)849-7000 Facsimile: (212) 849-7100 Email: erik.snapp@dechert.com Jonathan S. Tam Jae Hong Lee DECHERT, LLP 16th Floor One Bush Street San Francisco, CA 94104 Telephone: (415) 262-4500 Facsimile: (415) 262-4555 Email: jonathan.tam@dechert.com Email: jae.lee@dechert.com William W. Oxley DECHERT, LLP Suite 4900 US Bank Tower 633 West 5th Street Los Angeles, CA 90071 Telephone: (213) 808-5760 Facsimile: (213) 808?5760 Email: william.oxley@dechert.com Britta E. Stanton John D. Volney John T. Cox, 111 Eric W. Pinker Jared D. Eisenberg ervonne D. Newsome Elizabeth Yvonne Ryan Andrea MeShonn Evans Brown Ruben A. Garcia 12 Russell G. Herman Samuel B. Hardy, IV LYNN PINKER COX HURST, LLP Suite 2700 2100 Ross Avenue Dallas, TX 75201 Telephone: (214) 981-3800 Facsimile: (214) 981-3839 Email: Email: Email: Email: Email: Email: Email: Email: Email: Email: Email: Robert S. Hoff WIGGIN DANA, LLP 265 Church Street New Haven, CT 06510 Telephone: (203) 498-4400 Facsimile: (203) 363-7676 Email: rhoff@wiggin.com Michael T. Cole NELSON MULLINS RILEY SCARBOROUGH, LLP Suite 600 151 Meeting Street Charleston, SC 29401 Telephone: (843) 853-5200 Facsimile: (843) 722-8700 Email: mike.cole@nelsonmullins.com ATTORNEYS FOR DEFENDANTS PURDUE PHARMA, LP, PURDUE PHARMA, INC., AND THE PURDUE FREDERICK COMPANY, INC. 13 Robert G. McCampbell Travis V. ett Ashley E. Quinn Nicholas V. Merkley Leasa M. Stewart GABLEGOTWALS 15th Floor One Leadership Square 211 North Robinson Oklahoma City, OK 73102-7255 Telephone: (405) 235-5567 Email: rmccampbell@gablelaw.com Email: tjett@gablelaw.com Email: aquinn@gablelaw.com Email: nmerkley@gablelaw.com Email: lstewart@gablelaw.com Of Counsel: Steven A. Reed Rebecca J. Hillyer MORGAN, LEWIS BOCKIUS, LLP 1701 Market Street Philadelphia, PA 19103-2321 Telephone: (215) 963-5000 Email: steven.reed@morganlewis.com Email: Harvey Bartle, IV Mark A. Fiore MORGAN, BOCKIUS, LLP 502 Carnegie Center Princeton, NJ 08540?6241 Telephone: (609) 919?6600 Email: harvey.bartle@morganlewis.com Email: Brian M. Ercole Melissa M. Coates Martha A. Leibell MORGAN, LEWIS BOCKIUS, LLP Suite 5300 200 South Biscayne Boulevard Miami, FL 33131 Email: brian.ercole@morganlewis.com Email: melissa.coates@morganlewis.com 14 Email: martha.leibell@morganlewis.com ATTORNEYS FOR DEFENDANTS CEPHALON, INC., TEVA PHARMACEUTICALS USA, INC., WATSON LABORATORIES, INC., ACTAVIS, LLC, AND ACTAVIS PHARMA, INC. WATSON PHARMA, INC. 5 Benjamin H. Odom, OBA No. 10917 John H. Sparks, OBA No. 15661 Michael W. Ridgeway, OBA No. 15657 David L. Kinney, OBA No. 10875 ODOM, SPARKS JONES, PLLC Suite 140 HiPoint Of?ce Building 2500 McGee Drive Norman, OK 73072 Telephone: (405) 701-1863 Facsimile: (405) 310-5394 Email: odomb@odomsparks.com Email: sparksj @odomsparks.com Email: ridgewaym@odomsparks.com Email: kinneyd@odomsparks.com ATTORNEYS FOR DEFENDANTS JANSSEN PHARMACEUTICALS, INC., JOHNSON JOHNSON, JANSSEN PHARMACEUTICA, INC. JANSSEN PHARMACEUTICALS, INC., AND ORTHO-MCNEIL-JANSSEN PHARMACEUTICALS, INC. JANSSEN PHARMACEUTICALS, INC. 15