C.R. Bard Inc. is opposing a request by plaintiffs suing over its transvaginal mesh products to lift the confidentiality of 1,200 documents used in depositions.
The plaintiffs argued that the documents are judicial records subject to the First Amendment’s right of public access, but Bard argues that a court must determine the public’s right to access documents before ruling on their confidentiality. Documents used during depositions do not actually qualify as judicial records, the company added.
Even documents filed in court are not judicial records until they play a role in the adjudicative process, Bard’s counsel, Lori Cohen of Greenberg Traurig, argued in the filing. Discovery motions involve only procedural, not substantive, rights, and there is no public right of access, she added.
While the plaintiffs said they are challenging the confidentiality of the documents in order to cite them in future motions, the company argued that “plaintiffs should not be allowed to manipulate the discovery process and the agreed-upon protective order entered in this case by seeking to de-designate numerous documents they have no intention of ever filing. Plaintiffs’ motion is legally flawed, premature, overly broad and unduly burdensome.”
No MDL cases are near the summary judgment stage, and no expert discovery has started in the 200 cases selected for case-specific discovery, Bard said.
“Discovery in civil litigation does not magically become subject to a public right of access just because it could conceivably be attached to a hypothetical future dispositive motion,” Bard said.
The documents also include confidential trade-secret, commercial and research and development information, including that belonging to other parties, Bard said.
As of Monday, there were a little fewer than 200 cases pending against Bard in a multidistrict litigation in the U.S. District Court for the Southern District of West Virginia.
Amaris Elliott-Engel contributes to law.com.