Photo of Steven Boranian

Are protective orders worth the paper they are written on?  We have heard cynical attorneys pose that question, usually in a rhetorical fashion.  But our view has always been that protective orders—which we define here as court orders entered to protect against the disclosure of confidential information—are important and ought to be followed.  This view will come as no surprise to our loyal readers, who know us to be a defense-side blog; and defendants in drug and device litigation are usually (always?) more interested in protecting confidentiality than the other side.  Even when individual plaintiffs do produce confidential information, such as medical or employment records, they often produce that information without protection or even file it openly in the public record.

So yes, we believe protective orders are worth the paper they are written on, and from time to time courts give these orders substantial teeth.  Take for example a recent order from the Northern District of California, where the plaintiffs’ attorney played fast and loose with the defendant’s confidential documents and paid a price—literally.

The order in Holley v. Gilead Sciences, Inc., No. 18-cv-06972, 2021 WL 940594 (N.D. Cal. Mar. 12, 2021), actually covered two significant transgressions by the plaintiffs’ counsel.  First, counsel’s advertising falsely claimed that the defendant did not warn regarding the subject drugs’ side effects, falsely stated that the FDA approved the drug eight years after it actually did, and misleadingly implied that cash settlements were available.  Id.  Counsel represented that they had taken down the false advertising and hired an experienced lawyer to supervise marketing, but that was not sufficient.  Because they did not change their advertising until after being asked to—“sometimes repeatedly”—by the defendant, the district court ordered counsel to produce copies of all advertisements related to the case.  Id.  Not so bad in our view, given the gravity of the conduct (spreading falsehoods).  The district did punctuate its order with this pointed observation:  “Making false statements in attorney advertising harms the legal profession as a whole and damages the credibility of the lawyers making or authorizing the statements.”  Id.  True that.

The rubber hit the road with more friction when it came to the second transgression—violating the protective order.  Late one Friday night, the plaintiffs filed on the public docket documents that the defendant had designated confidential under the Court’s protective order.  Id.  Counsel had communicated earlier that day with defense counsel about a joint motion to file documents under seal, which implies they knew they were about to file confidential documents.  Id.  But they filed the documents in the public record anyway, without attempting to seal them.

The defendant notified plaintiffs’ counsel the following Saturday morning, which prompted counsel to remove the documents and file a proper motion to seal that day.  But because this all occurred after hours, the documents appeared in the public record for more than two days.

Here is the rub:  During that time, multiple users—including news organizations—accessed the documents using PACER.  In other words, when this tree fell, there was someone in the forest to hear it—indeed, multiple people, including people whose noble profession includes spreading the news.  One wonders how they knew to look in just the right place at just the right moment.

In response to all this, the district court put some bite into its order and granted sanctions under Rule 37(b) for counsel’s violation of the protective order.  Id.  The district court noted that sanctions “may serve either remedial and compensatory purposes or punitive and deterrent purposes” [Id. (quoting Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 783 (9th Cir. 1983))], and opted here to compensate the defendant for reasonable fees spent addressing the protective order violation.  The court ordered the parties to meet and confer over the amount, and plaintiffs’ counsel ultimately agreed to pay $50,000.  Doc. 662 (Mar. 29, 2021).

That is a noteworthy sum for most, and while the district court characterized the sanction as compensatory, orders like this should have a deterrent effect, too.  We could also envision a case where intentional conduct or repeated offensives could call for punitive sanctions, although the district court did not see those circumstances here.  Defense counsel may have a different view, especially in light of the coincidence—and in the age of docket trackers and automatic dingers, it very well may have been a coincidence—that multiple PACER users viewed the documents over the weekend.

The upshot is that protective orders are worth it, and they ought to be followed.  This district judge agreed.