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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. “Defense lawyers just routinely try to make everything subject to protective orders,” said Karl Olson, a partner with Levy Ram & Olson who represents media outlets seeking access to court records. “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 last few years — particularly in mass torts — have been trying to pass off incriminating public documents as confidential trade secrets more than ever. Defendants’ growing fears of copycat lawsuits and bad publicity often drive them to stamp “confidential” on virtually all discovery materials in a case. 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 plaintiff 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,” said 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,” said 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. “They’re filing broader and broader document requests,” said 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 added. “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 said. 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,” said Jeffrey Wohl, a partner at Paul, Hastings, Janofsky & Walker who defends companies in employment class actions. “After awhile you have to just be more aggressive in defending your client, because otherwise it just goes on forever,” he said. “You have to do something to dissuade plaintiff attorneys and let them know they really have to work.” SECRET DIFFICULTIES Plaintiffs attorneys agree that these broad requests for protective orders, meant to seal only proprietary business information, make their jobs harder. “It’s a pain in the ass to us,” said Mark Burton, a partner at the San Francisco plaintiff firm Hersh & Hersh, who represents plaintiffs against medical device-maker Guidant Corp. Even press releases and marketing materials have been stamped confidential, he said, 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 said. It’s generally not difficult to get a judge to remove the confidentiality stamp on documents that are clearly public, he said, especially since court rules in effect since 2001 put tight restrictions on confidential filings. But, he added, 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, said that over the past few years he’s been filing an increasing number of documents under protective order. But he blames it on the plaintiff 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 said, 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,” said Jere Beasley, the lead partner with Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala. Beasley’s firm is handling the first of thousands of lawsuits against drugmaker Merck over Vioxx, the pain medication that was 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, going 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 said, 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 said, 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. DOWN THE LINE In California, the 2001 changes make it harder to keep filed court documents sealed, although they do not apply to discovery. And AB 1700, currently pending in the Legislature, would require that all discovery information “in an action based upon the existence of public danger” be made public. (Reed Smith’s Brown testified against it before the Assembly earlier this year.) There are exceptions for proprietary business information. But 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 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,” said 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.”

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