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Most litigators agree that certain court documents should stay confidential. But when defendants try to make public information private, plaintiffs lawyers and open-court advocates get upset. Says Karl Olson, a partner with San Francisco-based Levy Ram & Olson who represents media outlets seeking access to court records: “Defense lawyers just routinely try to make everything subject to protective orders, like yesterday’s weather report.” That’s not a joke � Olson intervened in one case in which a defendant filed newspaper stories under seal. Increasingly irritated plaintiffs lawyers say that while discovery fights are old hat, defendants over the past few years � particularly in mass torts � have been trying more than ever to pass off incriminating public documents as confidential trade secrets. Defendants’ growing fears of copycat lawsuits and bad publicity often drive them to stamp “confidential” on virtually all discovery materials in a case. A MATTER OF DEFENSE Defense lawyers don’t dispute that they’re trying to keep more discovery information out of the public eye. They say it’s a matter of defending their clients. Attorneys defending drug-makers and other mass-tort targets say increasingly exhaustive document requests by the plaintiffs bar � often, defense lawyers say, for material irrelevant to the claim at hand � necessitate broader privacy requests. They say such wide-ranging fishing expeditions could attract more lawyers and additional, unrelated suits. So the defense bar tries to seal as much as possible. “It’s now become routine, whereas I would say, in the past it’s been an exception,” says Stephen Blitch, a partner at Reed Smith, who defends companies in defective-product suits. “There’s probably more suspicion that material provided in discovery could and would be used by opposing counsel � and other parties � in ways other than the litigation.” “It seems like plaintiff attorneys are being so invasive into so many things to which they’re not entitled,” says defense attorney Stuart Gordon, a partner with Gordon & Rees. “I think it’s true that pharmaceutical companies are getting more protective of things they think are not relevant.” Defense attorneys say mass-tort lawyers often make discovery requests for huge volumes of material in the hope of finding any kind of liability, even if it’s irrelevant to the suit at hand. BROADER AND BROADER “They’re filing broader and broader document requests,” says Michael Brown, a Los Angeles-based defense lawyer with Reed Smith. “It used to be that they would request files specific to their one plaintiff,” he adds. “They moved from that, saying they want all documents on that injury regarding that product. Then they moved beyond that, saying, ‘We want all documents on all injuries.’ ” With many companies keeping massive electronic databases, defendants have more documents on hand than ever, he says. Brown is skeptical that any protective order can truly keep plaintiffs lawyers from sharing documents, but others say preventing dissemination � especially of documents that could result in new litigation � is a key concern. “Plaintiff lawyers in one case are actively helping plaintiff lawyers in other cases,” says Jeffrey Wohl, a partner at Paul, Hastings, Janofsky & Walker, who defends companies in employment class actions. “After a while you have to just be more aggressive in defending your client, because otherwise it just goes on forever,” he says. “You have to do something to dissuade plaintiff attorneys and let them know they really have to work.” Plaintiffs attorneys agree that these broad requests for protective orders, meant to seal only proprietary business information, make their jobs harder. CONFIDENTIAL PRESS RELEASES “It’s a pain in the ass to us,” says Mark Burton, a partner at the San Francisco plaintiffs firm Hersh & Hersh, who represents plaintiffs against the medical-device maker Guidant Corp. Even press releases and marketing materials have been stamped confidential, he says, which makes every minor pretrial step onerous. “For example, if you’re at a deposition and want to show [a document] to a witness, there’s all sorts of confidentiality agreements,” Burton says. It’s generally not difficult to get a judge to remove the confidentiality stamp on documents that are clearly public, he says, especially because court rules in effect since 2001 put tight restrictions on confidential filings. But, he adds, seeking orders to unseal documents is time-consuming, so plaintiffs lawyers often give in and accept protective orders even though it means they cannot share information with other plaintiffs attorneys or the press. And with judges unable to review the thousands of pages of documents in many suits, plaintiffs lawyers say defense requests for confidentiality often go unquestioned. LEARNING TO SHARE Gordon, whose firm is defending Guidant, says that over the past few years, he has been filing an increasing number of documents under protective order. But he blames it on the plaintiffs bar and his client’s fear of random trolling for other potential suits. Guidant pleaded guilty in 2003 to criminal charges of covering up defects with Ancure, a device used to fix aortic aneurysms. The pleas sparked a series of civil settlements in the first two rounds of litigation. In the case of Guidant, Gordon says, confidential filings are part of an overall strategy to deter plaintiffs lawyers from filing a string of suits in the aftermath of settlements with plaintiffs who made similar claims. Plaintiffs lawyers are unapologetic about the information-sharing that worries the defense bar. “They’re absolutely right, and we should share,” says Jere Beasley, the lead partner at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala. Beasley’s firm is handling the first of thousands of lawsuits against drug-maker Merck over Vioxx, the pain medication pulled from the market last fall over safety concerns. In that case, filed in Alabama federal court, Beasley’s firm is waging a public discovery battle, and went so far as to hold an April 28 press conference asking Merck to unseal a host of documents. Beasley argues that protective orders often keep significant documents out of the public eye. For example, he says, a congressional committee probing the Vioxx recall sent his firm a subpoena for discovery documents that Merck produced under protective seal. Some of those documents, Beasley says, were published by the House Committee on Government Reform in its May 5 report about Vioxx’s dangers. Yet the documents remain under seal as Beasley’s firm continues its effort to unseal them. Lawyers on all sides of the issue say the fight is moving increasingly toward the federal courts, both because of a recent federal law that moves many class actions out of state court and due to the increasing number of mass torts consolidated in single federal courtrooms. Defense lawyers say that as these cases move forward, they will continue to do what’s necessary to keep them within the confines of the courtroom. “We don’t think the cases should be tried in the press,” says Charles Preuss, a partner at Drinker Biddle & Reath, who specializes in products liability defense. “You should use the documents in the prosecution of the case, rather than in the media.” Justin Scheck is a reporter for The Recorder , the ALM newspaper published in San Francisco, where this article first appeared.

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