On March 16, a diverse group of corporations, represented by federal discovery-process expert Robert D. Owen, filed an amicus curiae brief supporting generic drug makers’ certiorari petition in Actavis Holdco, Inc. v. Connecticut. A WLF Legal Pulse post from March 6 discussed the nature of the petition and argued that the Supreme Court should grant certiorari. We’re honored that the companies’ brief quoted from and cited to this March 6 WLF post (albeit the Forbes.com version of it).
In a nutshell, a federal district court’s discovery order in a multidistrict price-fixing litigation imposed a draconian production regime, which mandated delivery of all requested electronic documents and didn’t allow defendants to conduct relevance and responsiveness review. The MDL judge denied the defendants’ request for a stay of the order, as did the Third Circuit on appeal (with Judge Phipps dissenting). The defendants sought a stay from the Supreme Court pending a decision on their certiorari petition, which the Court denied.
The companies’ brief joins supportive amicus briefs by the Chamber Litigation Center/PhRMA/NAM/ATRA, Lawyers for Civil Justice, and the Defense Research Institute. The company brief’s signatories include pharmaceutical manufacturers GlaxoSmithKline and Genetech, 3M, Microsoft, and several financial services businesses, among others.
In addition to detailing the order’s violation of several Federal Rules of Civil Procedure, the brief explains the impact such broad discovery’ has on third parties not involved in the litigation. The brief stresses, “In the normal course of their businesses, amici curiae companies, like all companies, regularly exchange with other entities highly confidential and valuable information via email.” Once that information, which is likely immaterial to the underlying dispute, is exchanged, third parties have no way of knowing that the information has been exposed. Also, as the brief notes, “parties [directly involved in the dispute] do not have standing to protect proprietary or confidential business information of third parties.”
The brief goes on to discuss how an order like that in Actavis Holdco is at odds with the growth of strict controls over personal electronic data imposed through state and foreign laws. By design, the discovery process is an intrusion on privacy. That is why, as the brief explains, close judicial oversight is essential:
“Discovery is a serious intrusion into the privacy rights of the parties as well as others having nothing to do with the dispute. As a society, we allow it because it is necessary for the truth-seeking needs of the judicial system.”
The companies’ brief adds a compelling voice to those encouraging the justices to grant review in Actavis Holdco. We’ll continue to monitor developments.