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Court Documents COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT C .A . N o. 1884-cv-01808 (B L S2) ) COMMONWEALTH OF MASSACHUSETTS, ) ) v. ) ) PURDUE PHARMA L .P ., PURDUE PHARMA IN C ., ) RICHARD SACKLER, THERESA SACKLER, ) JAhj j % o KATHE SACKLER, JONATHAN SACKLER, ) MORTIMER D .A . SACKLER, BEVERLY SACKLER, ) DAVID SACKLER, ILENE SACKLER LEFCOURT, ) PETER BOER, PAULO COSTA, CECIL PICKETT, ) RALPH SNYDERMAN, JUDITH LEWENT, CRAIG ) LANDAU, JOHN STEWART, MARK TIMNEY, ) and RUSSELL J. GASDIA ) _____________________________________________________ ) THE COMMONWEALTH’S PRE-HEARING MEMORANDUM FOR THE HEARING SET FOR JANUARY 25, 2019 T he Commonwealth respectfully subm its this m em orandum in advance of the hearing set for January 25, 2019. A t the last hearing, on D ecem ber 21, 2018, the C ourt considered m otions to im pound by P urdue (P urdue P harm a LP and P urdue P harm a Inc.) and by the C hief E xecutive O fficer defendants (John S tew art, M ark T im ney, and C raig L andau) filed on D ecem ber 20, 2018. A t the conclusion of that hearing, the C ourt: 1) ordered the Commonwealth to file an im pounded, unredacted version of its A m ended C om plaint as w ell as a redacted version for the public file; 2) provisionally granted the CEO defendants ’ m otion to im pound information relating to their compensation; 3) set a January 25, 2019 conference for the parties to update the C ourt on the status of the parties ’ efforts to resolve the issues presented by the redactions, discuss next steps, and i provide the public an opportunity to be heard with respect to the redactions; and 4) invited the parties to file memoranda to assist the Court in navigating remaining issues. In advance of the hearing on January 25, the Commonwealth files this memorandum to update the Court on the status of the redaction dispute and propose next steps for resolving the remaining disputes within this proceeding. I. Status of the Redaction Dispute The parties have a shared interest in avoiding unnecessary conflicts between the federal multi-district litigation and state proceedings and, accordingly, they have worked in good faith to narrow the scope of the redaction dispute. On December 20, 2018, the Commonwealth notified Purdue, pursuant to the relevant provision in the MDL Protective Order, that it challenged Purdue’s confidentiality designations for all allegations in the Amended Complaint. Through the process that followed, Purdue agreed to lift hundreds of redactions. On January 10, in accordance with the MDL procedures, the Commonwealth notified Purdue that it would challenge the remaining redactions before MDL Special Master Cathy Yanni. On January 14, the Commonwealth submitted its challenge to Special Master Yanni for every redaction that remains. The Commonwealth’s letter brief to Special Master Yanni is attached hereto as Exhibit 1. Purdue asked that its letter brief to the Special Master be due January 22, and the Special Master granted that request. The Special Master may provide a ruling that further reduces the number of items in dispute. The Commonwealth is providing the Special Master with a copy of this Pre-hearing Memorandum today. On January 10 and 11, counsel for Defendants Richard Sackler and Russell Gasdia contacted the Commonwealth regarding redactions. In the discussions that followed, they asked the Commonwealth to maintain redactions in paragraph 370 and paragraphs 699-753 to allow 2 further time to confer. A list of the remaining redactions and an updated version of the Amended Complaint showing the remaining redactions are attached as Exhibit 2 and Exhibit 3. II. Proposed Next Steps A. Order Purdue to Produce the Documents Cited in the Amended Complaint in this Proceeding and Set a Schedule for Proper Briefing on Impoundment The Court-permitted, temporary impoundment has enabled the parties to engage in the MDL Court’s procedure for narrowing discovery disputes and that process remains ongoing. Now the Court and the parties should prepare to turn to the question of the propriety, under Massachusetts law, of continuing to withhold from public view something that is ordinarily considered to be a matter of public record, i.e., the remaining, redacted allegations in the Commonwealth’s Amended Complaint. As the Court observed during the December 21 hearing, this Court is not bound by confidentiality designations made to facilitate discovery. Instead, as the Protective Order submitted by the parties and entered by this Court (Kaplan, J.) on Oct. 22, 2018 states, upon a motion to impound materials in the public record, the Court must apply the Uniform Rules of Impoundment Procedure.1 To find good cause for impoundment, Rule 7(b) requires the Court to “consider all relevant factors, including, but not limited to, (i) the nature of the parties and the controversy, (ii) the type of information and the privacy interests involved, (iii) the extent of community interest, (iv) constitutional rights, and (v) the reason(s) for the request.” 1 See Oct. 22, 2018 Protective Order, par. 12 (“[T]he Court is not bound by the designation of any material as “Confidential” or “Highly Confidential” and any such designation shall not create any presumption that documents so designated are entitled to confidential treatment pursuant to Mass. R. Civ. P. 26(c) or impoundment pursuant to the Uniform Rules of Impoundment Procedure. If the Court determines that the Confidential Materials or Highly Confidential Materials are not entitled to confidential treatment and/or does not permit the documents which contain such Confidential Materials or Highly Confidential Materials to be filed under seal, the parties may then file those pleadings or other documents in open court.”) 3 Impoundment is the exception rather than the rule, and denying the public access to judicial records should be “strictly construed in favor of the general principle of publicity.” Republican Co. v. Appeals Court, 442 Mass. 218, 223 (2004), quoting Commonwealth v. Blondin, 324 Mass. 564, 571 (1949), cert. denied, 339 U.S. 984 (1950). In light of Purdue’s contention that documents the Commonwealth obtained pursuant to MDL Protective Order par. 33(l) are not subject to this Court’s jurisdiction — a position in direct conflict with Purdue’s earlier agreement that such documents “shall be governed by this [Court’s Protective] Order”2 — the Commonwealth proposes that the Court order Purdue, by March 1, to produce in this litigation copies of the documents cited in the Amended Complaint; and, by March 15, to serve upon the Commonwealth a fully-supported, specific motion to impound any allegations that Purdue seeks to withhold from the public. With respect to the proposal that Purdue produce the documents cited in the Amended Complaint, the burden on Purdue is low. A list of the documents cited is attached as Exhibit 4. There are fewer than 600 documents at issue, and Purdue has already reviewed them for privilege and produced them in the MDL and, in some instances, in other proceedings. The relevance of the documents to the Commonwealth’s allegations is high: the reason Purdue seeks to redact the Amended Complaint allegations is because they are based on those documents. It would be reasonable for Purdue to produce the documents in this litigation. After Purdue produces the documents in this litigation, there would be no federal-state complications and no obstacle to providing the most complete public access provided by Massachusetts law. Purdue 2 See id. at par. 5 (“To the extent that a Producing Party produces discovery materials in this action that were designated as “Confidential” or “Highly Confidential” in In re National Prescription Opiate Litigation, Case No. 17-MD-2804 (N.D. Oh.) or the Commonwealth obtains such materials pursuant to ¶ 33(l) of Case Management Order No. 2: Protective Order (Docket No. 441) therein, those discovery materials are deemed “Confidential” or “Highly Confidential” under this Order and shall be governed by this Order.”) 4 should produce the documents by March 1. With respect to the proposal that Purdue properly brief its Motion to Impound, the Commonwealth contends that Purdue has not yet filed a motion addressing the specific information to be impounded as the Uniform Rules of Impoundment require. The Commonwealth anticipates strenuously opposing Purdue’s motion. The Attorney General is the Commonwealth’s lawyer, and the people of Massachusetts should be allowed to see the allegations brought on their behalf. The Defendants’ deceptive sales tactics injured people across the Commonwealth, and the people of Massachusetts deserve to know the truth. This Court has the responsibility of presiding over this litigation — likely including ruling on Defendants’ motions to dismiss the Amended Complaint that is still not fully public — and the people should have the fullest opportunity to access this proceeding under Massachusetts law. Purdue’s final Motion to Impound should be due March 15. B. The CEOs’ Motion To Impound At the last hearing, the Court granted a provisional impoundment of information regarding the compensation of the three Defendants who have served as Purdue’s Chief Executive Officer. The Commonwealth opposes the long-term impoundment of that information, because the public should be allowed to assess the key facts about these Defendants’ compensation that are relevant to, among other things, personal jurisdiction, civil penalties and damages under Chapter 93A, and any potential settlement of the Commonwealth’s claims. The public is entitled to know the specific facts of these Defendants’ compensation, not merely that they were highly compensated. Purdue currently seeks redactions in the Amended Complaint in more than 100 paragraphs and footnotes concerning payments to individual Defendants on the basis that the 5 information relates to compensation. The Commonwealth is challenging Purdue’s confidentiality designations regarding all those allegations in the MDL.
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