On January 8, 2021, U.S. Magistrate Judge Joel Schneider issued a ruling in multidistrict product liability litigation that analyzes the standards for designating discovery materials as confidential in such cases. This ruling may have widespread significance, as it is one of the few instances where those standards are discussed in detail and applied against a defendant-manufacturer.

The case involves a products liability claim related to the defendant’s manufacture of Valsartan, a generic blood pressure drug. The defendant sought to designate certain business communications as confidential on the basis that they were not publicly available, contained proprietary or sensitive commercial information, and involved discussions with customers that could cause competitive harm. The plaintiffs, on the other hand, argued that the defendant failed to comply with the Court’s procedure for disputes over the confidentiality of those communications as set forth in its Discovery Confidentiality Protective Order. The plaintiffs further argued that the communications were not entitled to a confidential designation pursuant to existing law.

The Court found that the defendant failed to meet its obligations under the Discovery Confidentiality Protective Order, and on that basis, held that the disputed confidentiality designations were waived as per the Order. Then, the Court went on to analyze the defendant’s substantive arguments regarding the disputed designations. The Court explained that under existing law, confidential designations can only be applied to proprietary, trade secret and/or highly sensitive commercial information that has the potential, if disclosed, for causing competitive advantage to others. The Court further noted that a confidential designation is not warranted merely because a document may be harmful, uncomfortable or embarrassing. After analyzing the disputed communications, which included various internal and external discussions regarding a product recall, the Court found that they were simply routine business communications in response to an exigent situation and therefore did not warrant a confidential designation under the applicable legal standard.

This ruling demonstrates that broad confidentiality designations that are only supported by conclusory allegations of harm may be rejected by a reviewing court if disputed. Accordingly, to ensure confidentiality designations are effective, the party seeking it must be able to make specific demonstrations of fact, supported by evidence when possible.

A copy of the Court’s decision can be found HERE