washington post i will take six minutes to speak my co counsel from west virginia will be taking seven minutes and i reserve two minutes for rebuttal first there are two sets of records at issue in this appeal first is the archives dataset that is the object of the protective order and the second is the dozens of pleadings that have been filed under seal or with redactions in this case like i'm going to address them separately first the protective order and the archives data a protective order as you know don't know needs to be entered with a finding of good cause if you refuse view the protective orders issued in this case which started with record number one sixty seven and was supplemented a couple times i filed an updated one notice for this court record number fourteen fifty four fifteen forty five i'm sorry is the same restrictions on the archives data and nowhere in those protective orders does address good cause at all now the key leading case on this point the seattle times out of the us supreme court and it is clear that the time to seattle times case says that you can't use discovery necessarily in things other than for litigation however there are three important points from that case that the district court in this case failed to address and that means we believe that the protective order should be fake hated or one difference from that there was no public entity party in the case and that the public records act or state statute was not a factor at all either because it was a differentiate between information about a person where you go to church who you support where you donate money whether you're a member of the clan or something like that has been found in this court to have a protection that business records and records compiled such as the archives data does not have that would be records of of the tar content of of cigarettes that would be records of  pertaining to medical records with health care for the blue cross and shane group case that would be records from q motors dealing with the sunroof those are separate kinds of records  the ones that addressed in seattle times let me ask you this question the judge during the course of this made a lot of efforts to get the parties together and there was some agreement on some things and like the without getting overly specific what is that you didn't get that you really are seeking here because you did get a lot of stuff notice or i'm i'm i'm going to disagree with you on that two things we did not get and that we're seeking here number one is our access to the our coast dataset there is a database of information that is underlying this whole case which started it and it is being withheld we believe improperly it is the subject of the protective order we have received none of it it is not accessible to us or to the public as it should be that's number one the second thing we want access to is all the pleadings that have been filed under seal the protective order allows or actually compels the parties to file pleadings under seal if they deal with the arcus data the seal that this compelling interest outweighs the public's interest in knowing and that it's nearly tailored that has not been done in any of these voluminous pleading filed under seal so what we're asking for today is both access to the here have been very much a leader on this front as as i think this court has said many times this court's business is done in public and what's happening in this opiate litigation is it's being done largely in parties stipulated to the order that contains the protective order that would happen i have to tell you that exactly what happened is unclear because so much of it has not happened on the record i think you're generally  accurate on that my understanding of it is that the plaintiffs in this case the public entities had subpoenaed the arco state or the d a objected to providing it filed to become  or a friend of the of the court here and became involved for the purpose of keeping the archives data secret what happened at that time is there was a hearing and it was at the end of february with the plaintiffs with the defendants and with the da where they talked about what their concerns were and that is record one fifty six and it has been available to you and much of it quoted in my brief and so the way it turned out is as a result of that hearing they got together and somehow a protective order was crafted i believe it was done with those parties i'm uncertain exactly how it had argument is that even if there is a sort of you lation the judge has you have a really good cause otherwise it's not a valid dr border and there's no finding a good cause here exactly here if i can just drill down is that this protective order goes far beyond what is necessary to protect the interests of the parties during this litigation in that it essentially pre amps ohio's public records act and the in particular i'm looking at the middle paragraph of page eleven of the order where the judge essentially says that these will never become public records you give them back and there is no way to get this arcos data even ever because it goes to trial it will be about if it goes to trial it could be a public that's going to do and if he decides because if you read the orders you will see that he is reserve the right to think about this and to decide what we believe is that the law requires him to first of all that there be a good cause finding in a protective order which was not done second of all that it be limited to the context of pretrial discovery and not lead did not do that at all what he said it is two things he says that it contains law enforcement sensitive information and he said it contains confidential commercial information but two things that are important here are to know that what this archives data is is it's a data set where the pharmaceutical companies just by way of example m ten thousand opioid pills to the walgreens on main street in cincinnati and june fifteenth that must be reported so it is just raw data it is not law enforcement record and the same because it has no additional argument not good cause but the judge after after the order was issued attempted to justified by reasons that i see you use attributed as good were i would agree with your assessment that he was attempting to attribute it in the order that we're appealing from here today but i think he fails to do that  because it there is not sufficient evidence in the record and maybe there's no evidence at all that this is law enforcement sensitive information or even if it were if that rises to the level of good cause keep in mind that these are documents from two thousand and six with an end date of december thirty first twenty fifth twenty fourteen so so i think we need to understand precisely what the impact  this protective order is and what the impact is is that it has really given the parties wide berth to file numerous documents under seal and with redactions with no compelling interest asserted and i would just like to point out in footnote number seven of the pharmaceutical defendants brief record thirty eight page thirty where they talk about the minute minimalism of the redaction going on they they say for example only twenty six of the eleven hundred thirty seven paragraphs i e two percent in the some accounting complaint contain redactions only eight of the redacted paragraphs concern data you know without respect what are the other eighteen paragraphs being redacted for and i think that it's very clear one cannot do that unless one makes a compelling showing that you have a compelling interest in this retraction and that it outweighs the public's interest in knowing and i also want to point out that that this court is giving pretty short shrift to the importance of the underlying litigation it is a public entity plaintiffs with a public health crisis that really affects more people then then your regular when you're with a regular case and more people than i think  record there in the district court show about the district judges review of materials that were subjected to the protective order before he put on the protective by the district court in terms of the district court's review of specific documents and information that were being hailed from public view point what's your understanding about the district court's review process in that regard my understanding is them that this is a very complex case that there are more than sixteen hundred pleadings filed so far as of yesterday i believe and i don't believe there is any review being done before a request for filing under seal or redactions is made we reviewed this just a few days ago looked at the record its appendix b i believe in my principle brief supplemented with appendix a in my reply brief and we looked at it as of just the other day and what we found appropriately sealed i cannot tell you no to that because i don't know what the compelling interest in ceiling i think that they have to be looked at on a document by document basis on a line by line basis and if there is something that rises to the level i don't think you would have an objection from from my client at all or from us because we understand the need for that that part of the the problem here is that these things that protective order was issued very broadly and with concern to how to narrowly tailor it you know the court said in its decision that this does not restrict the dissemination of information gained by other sources and he's quoting seattle times when he does that because seattle times is one of is the key case this sort of issue but in fact his order does restrict the dissemination of this information on all levels because it requires that the parties give it back and it really pre amps the state public records act in a way that i don't think he has the authority to do and for that reason i think what you need to do is you need to vacate the protective order and send it back to him and ask him to find a good cause in keeping with the seattle times guidelines it needs to be limited to that to the context of pretrial discovery and it needs to not abrogate the parties the public entities and of the plaintiffs obligations under the public records act i think that's important i think what he can do is to merely tailor this to have it confidential as a trial preparation record during the pendency of the proceedings but after the proceedings or perhaps one hundred  twenty days after this court makes its decision the protective orders should expire because the value of openness and transparency needs to be balanced with the d a and pharmaceutical defendants interest in secrecy that has not been done and the value of transparency here is great i guess part of my question to you was wondering whether this has  if you prevail that this will have to go back to the district court it doesn't seem to me if this has to be on a document by document basis that's something we can do every week or an issue an order it seems to me if you get relief some of it is going to be go back with the with a clear pronouncement of what the legal requirements are tess and then the judge will have to take another look at it yes and actually the way that would work as a practical matter is that everyone who sought to file something under seal and there are many parties different parties has a responsibility when they're seeking to file that to demonstrate the compelling interest in sealing it that their interest in sealing up the outweighs the public's interest in access and that there is no more narrowly tailored way to do that and so it wouldn't fall necessarily to the court to review these and i know there are dozens maybe more than one hundred now it would fall to each of the parties and as you might have noted from my principal br and what it said to me and what i hope it says to you is that those things need to have been redacted in the first place and what i'm hoping and expecting and what i believe the law is is that when the parties are compelled to go back and demonstrate their compelling interest in sealing they sit down and they take a look and they say it really doesn't have to be sealed and i think for the most part that will be the answer not that nothing will but that an overwhelming amount won't be this case is not only about the the ceiling of court records without any finding of good cause but also the protective order that did not find good cause but as judge griffin you noted you noted in the court's july twenty six opinion from which we are appealing the court purported find good cause however enforcement activities are entitle to consideration contradictory of the court's previous rule really nice i think rejecting the argument that this would hurt criminal enforcement  was on april eleventh of two thousand and eighteen zero the rulings which are really and i guess of fact usually entitled to some deference but they just contradict each other in the courts have explained that that's one of the arguments d i mean the data here that's requested and two thousand and fourteen five years ago there's a criminal statute of limitation five year statute of limitations so for the great majority of it could be prosecuted anyway because that's exactly that's exactly right moreover i think it's very important your honour's to know exactly what the effect of this protect  order is in light of the fact that in two thousand and fifteen the the da disclosed to or gave to the attorney general of west virginia  its huge part of its or coast database for use in pill mill litigation the same sorts of cases that are beef pending before the district court here by the state of west virginia seeking damages against opioid distributors and it put place no restriction on the use of that that it did not object to the disclosure of that that in fact this case unlike many madell where the only objection the d a made was to the disclosure of confidential business information this case is the first time where the d a has interposed the law mail articles that focused on the the flood of seven hundred eighty million opioid pills in west virginia during that early period two thousand and seven to two thousand over two year period you know how does that how did that information interfere with law enforcement and then if we look at your honour's at the complaint filed in the m d o by a west virginia mi county you can see the effect of the redaction and what the da and the drug company defendants below argue is confidential and should not be released  this would be page levon seven nine six of document five one eight paragraph six seventy six and so on distributors registered with the population of over one only one point eight million people distributors registered with the d a moved approximately redacted number of these opioids into the state of west virginia between two thousand and six and two thousand and fourteen more than re a protective order for an improper purpose and that his real purpose is to encourage settlement because the drug companies don't release to the public that that the judge is trying to pressure the drug companies to settle so this data won't be released i think that's kind of an underlying theme you have any evidence that the judge is not acting on the basis of good but for it improper purpose such as trying to leverage  said that yes ok all right i don't think that's a good cause at least under the normal factors that good causes to encourage just settlements would you have a position on that one i think it's good because i don't think the opinion supports that none of the protective orders were found to be supported by good cause and if you look at the court's opinion there really isn't anything more than conclusory and speculative allegations of indication and and that i can find i still what caused the judge to change is perspective on this issue do you know of anything that changed understanding that his preconceived decision that none of the standard would be really so he was rejecting the same arguments that were made are being made here with regard to law enforcement harm and competitive business harm but he's basically telling and it's on the record telling the parties none of this will get out all right thank you thank you please the court sarah carol on behalf of the united states i would like to use ten minutes and leave five minutes for the m t l defendants as the counsel for the washington post said the washington post and the and each the media have tried to raise two distinct issues here and i want to make clear that they are distinct one is the request for disclosure of this arcos data that was produced in third party discovery pursuant to a protective order the other is this request to unseal court records and as this court has said repeatedly the standards for those things are starkly different like to begin with the ark of state and with the protective order this is an issue that is a really critical importance to the united states and to d n a i first want to clear up a couple of i think confusion that that opposing counsel may have expressed first i want to make clear that this was not just a stipulated protective order the parties were not able to agree to a protective order d e a which owns this information and cared deeply about the scope of a protective order in the existence of a protective order because there was no agreement the court issued its own protective order there and there is an expressed finding of good cause i don't recall for sure whether there is one in the protective order itself the judge griffin right right the government had very serious concerns about producing the state up period even subject to a protective order but the government is also interested of course in helping this very important complex litigation proceed effectively so when the district determined that it would be appropriate and important for purposes of litigation for d n a to produce the data subject to a protective order the government ultimately decided to the rulings of the district court inconsistent  rejecting the bases that you had to produce these records law enforcement reasons and the other reasons minors and he projected those and then those same reasons are brought up  it it won't know if there's a will so when he was ordering da to disclose the information subject to a protective order he said i think this will you know one of the components of his analysis was this will be subject to a protective order that will limit use to litigation and law enforcement purposes and broad public disclosure is very different from that for one thing and another thing that i would note trial that it's all public well if it goes to trial then absent order of the court evidence introduced at trial will become public but da is required to have five days notice if the parties want to use any arcos information so the court clearly is contemplating i think that if the parties want to use you know a very broad arcos like the something that would raise law enforcement interests d n a can come in and ask for a special release the other thing that i would note is that another important thing that the court had before it when it issued the order denying the news organizations requests for public disclosure was a declaration from d a assistant administrator martin who said quote in paragraph sixteen of his declaration which is document seven seventeen dash one the disclosure of this data would quote create a very real risk of undermining open investigations this data in two thousand addresses that da explained in the declaration that investigations often span a number of years and you know for one thing proceedings could have been started within the statute of limitations but still be ongoing i mean could have been of years speculated yes no doesn't mean that you satisfy those debtor nations that i i think if you know there are a number of open proceedings that d h and i expect that some of these might be things that have not been filed yet but in which the factual evidence goes back some number of years there could be proceedings that have already been filed there are no statute of limitations problems here with this i'm not aware of any statute of limitations problem or are there not statute of limitations for the  statutes of limited what are the what would number i believe you're right that it's five years your honor but to me like all this stuff was older than five years well if the court were to determine that that that meant that there was no good cause for this protective order the court would have to disregard seventeen of the martin declaration which explains and backs up with this chart showing the number of open proceedings the court would have to find that s just an administrative martin was simply wrong or lying and in a c l u of michigan the f b i for example enforcement action some might be investigations on which d n a has not yet decided whether to pursue an administrative or criminal action the other problem i have this is government data that the taxpayers paid for by their own money and it almost seems like the government data for the taxpayers should be publicly disclosed i mean after absent good cause to not disclose which is which is the standard here  but i mean i'm a little troubled that the government wants to keep secret data that i think public you know i have a right to know congress has certainly recognized that the public has a right to know about government data and congress enacted the federal freedom of information is thinking on these issues i might be misremembering your honor i know the court talked a lot about the federal for i don't remember much discussion of state for you the district court said these are federal records i could be wrong maybe there is a exactly what your honor is referring to but the basic point is that this is a matter of federal law and the news organizations as they've never explained why they haven't filed a federal foyer request my my is that issues not before us i mean the issue right now is  case that says that a district court lacks authority to issue a protective order over materials that would otherwise be subject to state law and if that were true that would really hamstring district courts ability to manage litigation in any sort of case involving a state as for the arco state of the only question before this court is whether the district court abused its discretion in finding that there was good cause for a protective order good cause it's not a particularly demanding standards of manual for the view is good cause trying to leverage a settlement i'm glad that you're on to mention that because i was on my list of things to say i don't know whether that would be good cause but that is not what the district court relied on here here just a court makes some sort of a statement of that that that was a reason for this or the district court said that he wanted d n a to disclose this he wants to encourage the settlement i recognise judges are always encouraging settlement we're trying to do the same thing here but i just don't think that if you look at the basis for a good cause encouraging settlement and usually one of will and i do not read that to be one of the bases for good cause here i think the district court relied on the federal government's really real interest in protecting the this data which it is using every day for prosecutions to try to disclosure to the parties would help settlement and litigation because it would help the parties figure out who should be involved in the case and who should be at the table i don't think the district court viewed the protective order as itself a way to try to get towards settlement  and another thing that i really want to just underscore is that the federal government as i said had a very serious concerns about disclosure period and the government relied heavily on the protective order if we were to accept  the documents that this particular document will be this particular investigation or prosecution what's wrong with that remedy well for one thing this is a giant database of federal law enforcement data this has as i understand it tens or perhaps hundreds of millions of lines of data and it's kind of the big picture of the data that is that's why the media wants it right and that's also why it's so law enforcement sensitive in the media does not have a right just require all of it to be protected which is what we're we've got right now well i think if we delete case number being case number see from this database and give them the data without those things i suspect that manufacturer b and manufacturer c will say the washington post published this data set that removed everything that was related to an ongoing investigation and i see that i'm not on there so maybe i'm the subject of an ongoing investigation that seems to me like it would be pretty difficult to know where would there be and confirmed b ecause it would it would tip defendants off to the scope of d e f investigation that really would be revealing what d n a is looking at in a concrete way defendants could you know destroy evidence they could try to change their behavior to try blanket general assertion which is not narrowly tailored or specific to any specific investigation on anything it seems as though you've just gone overboard i'd like a better explanation of the law enforcement interests than you just simply saying we've got to keep this stuff from public view because it would it would interfere with law enforcement  saying that by itself so a couple of responses to that your honor first of all of course the standard for a protective order is not that it's required to be merely tailored to a compelling interest that's the sealing standard and number a whole to look for patterns and to look for trends and to pull out leads that it can that it is spending every day to investigators on the ground so it's disclosure of the database as a whole that would pose such a great threat to the government's law enforcement interests and the protective order is narrowly tailored to that threat because it focuses only on this data set it doesn't it doesn't extend to you know other documents that the parties might exchange i also want to very briefly address the sealed pleadings issue even though i recognize that my six eleven so i understand that the washington post might wish to have filings on sealed but it is simply not a party as to that purpose right now if it wants to seek leave to intervene for a broader purpose in the district court it can do so but it about the other t is it true that i don't want to say is it true but that has nothing to do with continuing investigations it may the data that involve n said this is paragraph seventeen of his declaration which is docket seven seventeen deshawn he says the risk of adverse impact on d n a investigations and enforcement actions exists regardless of the age of the arco stated frequently da investigations remain open f multiple years so that all the appropriate evidence can be gathered and da can assess the viability of a potential legal or enforcement action against the target therefore it is not unusual for arcos data first generated a decade ago to continue to have relevant and ongoing investigations and enforcement action that was that was my question is that your limitations might have some effect on what conduct that could include if they were to bring a prosecution but it doesn't have any impact on whether the investigation is ongoing or yes that's absolutely right and of course evidence that itself couldn't be charged because it's outside the statute of limitations could still be relevant to an ongoing investigation and to reject that that quote from it is just an administrator martin this court would have to overcome the presumption of good faith that's afforded to agency declarations which this court has emphasized in for example e c l you of michigan the f b i and courts you know afford particular deference to executive branch officials in predicting the law enforcement harms that could arise from from things and that's exactly what this is a good you know good cause is not demanding and this court would have to disbelieve the sworn declaration of a da official to find that the district court abused discretion in finding good cause i'm happy to answer any other questions the court might have thank you very much for your time i know i went way over good morning your honour's may it please the court ashley harden on behalf of the companies and i want to jump right in and clarify some things that have been said and arguments that have been made judge griffin to your question or to your statement about the fact that this is a taxpayer funded database that the d a registrants themselves actually pay for the arcus data so it is not a taxpayer funded database i just wanted to clarify that i also want to clarify  miss carol made this point i just want to reemphasize it because i think it's crucial as we've heard so much of what we heard this morning from the appellant's is that this case is about the ceiling of court records this case is not at all about the ceiling of court records they didn't raise that issue below there's been no finding by the district court as to the fact that they could have access to certain court pleadings or shouldn't have access to those and so when you're referring to the appellants made absolutely no effort in the district court to have any court mcginley was reading from the cabel county complaint to your honor's but he did not move to have any portion of that complaint unsealed in the district court and that is not what is on appeal here that is simply beyond the scope of the that the district court below referenced in the state for you laws what the district court held was that this is not a record of the counties such that it becomes disclosable under their public records laws but he didn't cite those statutes for actually looking at the published version of this opinion your honor which is a three twenty five third eight thirty three he says perhaps most important the arcus data is not a record generated by the counties that are or may be subject to state public records requests it is a law enforcement tool of the united states that it shares only with local law enforcement agencies he does not cite or even reference any state for you laws th court's decision and wade are teaches that when the record is given to a public agency only because of civil litigation and there's no dispute that the counties in the cities that are indeed all plaintiffs have access to the archives data only because they got it in civil litigation they otherwise do not have access to this database and this court held in wait are that when the in that case it was the department of justice came into possession of certain documents only as a result of civil discovery those documents remained under the court control and the court is authorized to enter a protective order to govern their use and dissemination so long as there is good cause and to address a point that your honor judge griffin has raised a couple of times there are three bases good calls that the district court found none of them were to encourage settlement although it is absolutely true that judge bolster wants to encourage settlement in this case and has said so many times what he actually said the utility of the data to the plaintiffs was is it enabled them to know which particular defendants they should they should sue in a particular jurisdiction that is what he found to be the overwhelming utility in use of the data and i don't think that anything he said in in or in the protective or the protective order is contradictory to his all to men holding as it related to the appellants klein he said repeatedly that this data would not be made subject to public disclosure and the question in under this court's holdings and for example courier journal marshall is was that protective order an appropriate means of the scylla taping discovery while keeping in mind the countervailing interests of the da and the companies i think it's a fair reading of what the district court said below that he would not have made this data disclosable even to the parties had he not been able to retain control over that data through a protective order and it's absolutely clear that the da would not have produced the data except for the injury of the protective order so that's the question we're asking was that an appropriate means of facilitating discovery in this case and it was i'm going to be very brief because i do appreciate the extra time you've given to all of us just a couple points to make with regard to why we're here the case is brown the williamson brown and williamson shane group the blue cross the notion of operating in public and nobody has to ask for public records for judicial pleadings to be filed publicly that is what courts do and most recently  that was filed with regard to the d e a s brief the day before their brief was filed as you know down know their brief was due on a monday and the friday afternoon and they filed a motion to file it with rejections under seal i did see that on the friday and sunday that was granted and on monday they filed their brief under seal and on wednesday the post filed a that is why it is an issue that we've brought up here but the reason i just read off those cases is because this court has consistently found that you do business the default position is that this court's business public and i believe that even if we hadn't brought it up this court would have appropriately been able to bring it up on its own as as it has done in so many other cases but  point that the attorney for the pharmaceutical defendants meant that i just wanted to emphasize is that she read the precise language in the judge's order that impacts upon the ohio public record statute and what vattel language says is that it doesn't matter how public entities got these records they are not going to become public records and with due respect i think that the ohio public records act one forty nine point zero one one g and one forty nine point forty three are very clear on what constitutes a public record and what exceptions to the public record are and so when a public entity receives a public record and actually uses it in public entities business it becomes a public record and the other hand is in the record because the district court wrote it himself that the public entities received this information and have used it to add some defendants and drop other defendants so it's any black and white that these records have been used precisely as public records and for that reason what happened here is that the protective order far overstepped what the district court should have done so i just want to leave the court with the suggestion that the way to resolve this case is to find that the district court committed multiple legal errors and thus abused its discretion since it did not articulate a good cause for issuing the protective order the protective order should be vacated and it should be remitted for a ruling under the correct legal standards those legal standards must be narrower and not preempt state law they should be limited