The court in In re Acetaminophen—ASD-ADHD Products Liability Litigation confronted a problem that should not have existed in the first place–plaintiffs’ co-lead counsel violating confidentiality and coordination orders that he had helped negotiate.

The underlying orders were straightforward. The MDL confidentiality order protected confidential and highly confidential information produced in the litigation and prohibited the use of MDL confidential documents outside the MDL absent either the producing party’s consent or compliance with the coordination order. The coordination order was equally direct. MDL discovery could not be used in related state-court proceedings unless: (1) the state court adopted the coordination order; (2) all parties in the state action executed the MDL confidentiality order; and (3) plaintiffs’ counsel in the state action executed the MDL participation agreement. Id. at *1-2.

Not exactly a maze of ambiguity. What prompted the sanctions motion was plaintiffs’ counsel violating those orders not once, but twice, in two separate state-court proceedings.

The first violation occurred in Florida. Plaintiff’s counsel filed a jurisdictional brief that “described or quoted” four confidential MDL documents and attached those documents to the filing. Opposing sanctions later, the lawyer handling that case from plaintiffs’ counsel’s firm claimed she “anticipated” defendant would consent because it had done so in other cases. That anticipation turned out to be misplaced. Defendant objected, and plaintiffs withdrew the filing. Id. at *3. One would think that experience would have clarified the rules going forward. Apparently not.

In the Texas action, plaintiffs’ counsel sought permission before using confidential MDL materials. Defendant expressly did not consent. Counsel then used the confidential MDL documents anyway—both in an opposition brief and in an attorney affidavit supporting the brief. While portions of the documents were redacted, counsel simultaneously sought permission from the Texas court to file unredacted versions under seal “notwithstanding” the MDL orders. Id. at *3-4. “Notwithstanding” – that’s essentially an admission that he was violating the MDL orders.

At that point, sanctions under Rule 37 became inevitable. Counsel knew consent or compliance with the coordination order was required and proceeded anyway.

Plaintiffs’ counsel first tried a threshold argument—that Rule 37 does not apply to violations of confidentiality orders because such orders are not orders “to provide or permit discovery.” The court rejected that argument based on precedent and common sense. Id. at *5. Confidentiality orders are integral to modern discovery practice, particularly in MDLs involving massive document productions. If parties cannot rely on confidentiality protections being enforced, discovery coordination quickly collapses.

The court then walked through the sanctions factors.

Willfulness strongly favored sanctions. The Texas violation was unquestionably willful. While the court gave plaintiffs some credit for withdrawing the Florida filing after objection, there was no similar corrective effort in Texas. More importantly, the lead lawyer personally targeted by the sanctions motion attempted to minimize his responsibility and shift blame to subordinates. The court would not allow it. Id. at *6-7. Leadership positions come with responsibility, not immunity. Nor could counsel explain why the Texas filings remained on the docket when the Florida filings had been withdrawn.

Whether a lesser sanction would be effective was not really an issue in this case because defendant was seeking recovery of its attorney fees which is mandatory under Rule 37. There really is no lesser sanction. Id. at *7. The duration factor also favored sanctions because the offending Texas filings continued to remain publicly docketed. The “prior warning” factor cut slightly the other way because this was the first sanctions proceeding, but not enough to matter. Id. at *7-8.

Nor could plaintiffs’ counsel demonstrate “substantial justification.” Plaintiffs’ counsel argued that they had not actually “used” confidential information because portions of the filings were redacted. The court rejected that argument emphatically:

The filings made arguments about what the confidential documents show, referred to the substance of the redacted confidential information, and blacked out swaths of quoted material, which served to highlight the extent of the confidential information. [Plaintiff’s counsel] also asked to file unredacted copies under seal “nothwithstanding” the MDL orders. It is difficult to imagine that [plaintiff’s counsel] would agree that there had been no “use” of information if the shoe were on the other foot and its clients’ confidential information . . . had been used in this manner.

Id. at *8. Exactly right.

Redacting confidential material does not somehow erase the fact that it is being used. Nor did the MDL orders contain some unwritten “redaction exception.” To the contrary, the orders stated that MDL documents “shall not be used” outside the MDL absent specified conditions—conditions that indisputably were not satisfied here. As the court observed, “[n]either Order contains an exception for filings under seal or redacted filings.” Id.

Plaintiffs also attempted to argue that there would have been no violation had the Texas court ordered production of the documents. But no such order existed, making the argument largely hypothetical. More importantly, the MDL confidentiality order’s compelled-production provision addressed subpoena compliance. The State of Texas, the plaintiff in the state court action, was not responding to a subpoena, was not resisting production under the protective order, and was not even the entity in legal possession of the documents. Id.

Finally, plaintiffs’ attempt to manufacture ambiguity in the MDL orders went nowhere, particularly because the sanctioned lawyer had played a lead role in negotiating those very orders. It is difficult to argue an order is unclear when you helped draft it. Id. at *9.

The court ultimately awarded attorney fees under Rule 37. But that sanction feels insufficient. This was not an inexperienced lawyer misunderstanding a technical procedural requirement. This was MDL leadership knowingly disregarding coordination and confidentiality orders after already being called out once for substantially similar conduct. Protective orders in MDLs exist because courts expect counsel to honor them. If lead counsel can deliberately ignore those obligations and walk away with what amounts to fee shifting, the deterrent effect seems questionable at best.

There is also a broader lesson here. MDL practice runs on negotiated orders, coordinated discovery, and professional trust among counsel and courts. Once lawyers start treating confidentiality orders as flexible suggestions rather than binding court directives, the entire system becomes harder to manage.

And for anyone practicing in an MDL—particularly leadership—this decision is a reminder worth taking seriously: if an order says documents “shall not be used,” do not convince yourself that redactions, sealing motions, creative interpretations, or wishful thinking somehow mean otherwise.