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Another decision against sharing confidential information

By James M. Beck and Mark Herrmann

A friend recently sent us a helpful decision squelching a plaintiff?s proposal to share defendants? confidential information with anyone who asks. Doriand v. Centocor Inc., 2010 WL 325742 (N.D. Fla. Jan 26, 2010). We noted before the relevant dearth of citable authority on this subject, and we?re glad to see another judicial vote for common sense.

The parties in Doriand agreed on all aspects of a protective order except for plaintiff?s request for a ?sharing? provision. Plaintiff proposed this provision:

Notwithstanding anything to the contrary herein, Plaintiffs and/or their counsel may disclose any and all information and documents obtained in this litigation to litigants and their attorneys in other pending or prospective civil cases including these Defendants that relate to Remicade; provided that the litigants and/or their counsel elect to be bound by the terms of this Protective Order and the Confidentiality Agreement form annexed hereto as Exhibit ?A.?

2010 WL 325742, at *1. In other words, defendants? confidential documents would be readily available ? or would be available for sale ? to anyone in the world who contacts plaintiff?s counsel claiming to have a prospective case and wants a copy.

If this provision had been allowed, what we?d expect to see is plaintiff?s counsel advertising the availability of the Centocor confidential documents on his website. Interested parties would only have to click ?yes? to ?do you have a prospective case?? and then click ?yes? to ?do you agree to the terms of the Protective Order?? Customers probably wouldn?t even have to read the order?just like those terms of use for websites or software licenses that everyone clicks ?yes? to and nobody ever reads. Based on these two clicks, plaintiff?s counsel then could give anyone the confidential Centocor documents, for a small (or not so small) fee. An enterprising plaintiff?s lawyer could make a nice chunk of change selling confidential documents with this set-up.

As defense lawyers are in the business of blocking our opponents? schemes to get rich quick from our clients, counsel in Doriand objected to the sharing provision. At the hearing on the protective order, defendants offered to allow the discovery to be used in the one other case being litigated by the same plaintiff?s counsel, which would appear to suit that counsel?s legitimate needs. Plaintiff?s counsel rejected this offer; ?he wished to be able to share the discovery with anyone who contacts him regarding a Remicade case.? 2010 WL 325742, at *1. Plaintiff?s counsel did not give up easily on the dream of making the Remicade documents the next Snuggie or ShamWow.

Fortunately, the court crushed plaintiff?s commercialistic dreams and rejected the sharing provision. The court concluded ?that plaintiff has not shown a need for the sharing of the discovery and that the possible administrative efficiency produced by the sharing is outweighed by the risk of inappropriate release of information provided by Defendants that is sensitive, confidential and proprietary in nature.? Id.

Plaintiffs? counsel presumably calls these proposals to publish a defendant?s confidential documents ?sharing? provisions because sharing sounds so sweet and good ? a bit of plaintiffs?-side Kumbaya in the litigation world. Sharing is probably one of those seven habits highly effective people learned in kindergarten. We never read those books, and since we?re not in kindergarten any longer, we don?t believe in sharing our clients? confidential information, no matter what our Teacher Jane might think of us now. The whole point of protective orders is that our clients? sensitive information can be used only to litigate the case in which the information was produced and only by a limited universe of people working on that case. If that information is shared with people not involved in the case, the risk of disclosure increases exponentially, and any ability we have to police compliance with the protective order vanishes. ?Administrative efficiency? (in reality: making life easy for plaintiff?s counsel) is a bogus reason for putting clients? confidential information at risk. We are glad this court agreed.

Thanks to David Walz of Carlton Fields for sending this along.

Full post as published by Drug and Device Law on March 02, 2010 (boomark / email).