We recently saw some helpful news out of New Mexico in a case involving a protective order in a pharmaceutical product liability case.
Eon manufactures generic buproprion. The plaintiffs in Bertetto v. Eon Labs, Inc., 2008 WL 2522571 (D.N.M. May 29, 2008) (here’s a link to the slip opinion), had insisted on a provision in a protective order allowing them to share confidential materials with “[a]ny attorney for claimants in other pending U.S. litigation alleging personal injury from the alleged use of buproprion manufactured by Eon for use in this or such other action, provided that the proposed recipient is (i) [a]lready operating under a protective order analogous to this one, or (ii) [a]grees to be bound by this Order and signs the certification described in Paragraph 8 of this Order.”
The Magistrate Judge had determined that the defendants had failed to show that the provision would harm it and, accordingly, entered the order with that provision.
The defendants objected, and the trial court overturned the Magistrate Judge’s ruling. “Because the provision would result in dissemination of Defendants’ confidential information being removed from any meaningful court oversight and left completely in the hands of the Plaintiffs’ attorneys, and such information would be available to any plaintiff who simply filed a suit against Defendants, regardless of the suit’s merits or the relevance of the materials to the suit, the Court finds that the provision would ‘tangibly prejudice substantial rights’ of Defendants, as prohibited under United Nuclear [v. Cranford, 905 F.2d 1424, 1428 (10th Cir. 1990)].” Slip op. at 5.
Given the relative dearth of helpful protective order rulings, this one is worth sticking in a file folder.
Better yet, link to it from your blog, and then you’ll never lose the thing.