law and regard the first amendment analysis as not only unnecessary but is really perhaps not subject to constitutional boyden says we generally look at it but as some of our cases have indicated that for prodigious releases we not reach the constitutional piece here yes i agree on i don't need to raise the first amendment issue here but i woke point out that this court has reached the first amendment issue before when it didn't have to in public or the squad specifically said we can public or was about a an actual in court proceeding  that the public is very interested in the proceedings here are met guests here has said that researchers physicians the public at large would like even even if that's the case and not going to dispute that why isn't the common well right of access adequate for purposes of protecting everyone's interests here i think the common law and access is adequate here we submit that under the  then let's look at the basis of your people and what the district court did in what the district court did not do with a particular focus on the july twenty four twenty  sample if you flip the page and say oh nine one three this is a document that was publicly presented in a continuing medical education question doctor says this is a pamphlet that people that doctors can walk out of that course but there's no real grounds for just can't even take that document out of the public record now is the let me just refer to something that perhaps should have been the starting point at least starting point for me because we're we are reviewing summary judgment there is where should not be any disagreement that the common law right of access applies to summary judgment proceedings  course that that is that is settled and we do know that the district court whose order we are reviewing here at least  articulated substantial countervailing interests other than the public's thought right yes exactly that's my favorite line here so what this means is just a court is looking for the plaintiffs to articulate some sort of interest in the contents of the that's the whole twenty six standard under rule twenty six plaintiffs don't have an inherent interest in private discovery matters exchanged between parties which is why well twenty six x six what are the public's interest in the contents here under the common law the public has an interest because the interest isn't just in the conscience of the documents it's to access to the courts themselves to the plaintiffs do not have to justify any interest in these documents and the point should not have put the plaintiffs to that burden it also just shows that the court was really applying the rule twenty six standard and not the common law standard and you can tell because not only is the court listing the panty factors it's them citing glenn my which is a rule twenty six case it's not a common law case so that and you know that the district court here is also considering other factors that this court has very specifically and repeatedly said and littlejohn in public or in bank of america cannot be considered in a common law right of access analysis which is embarrassment to a corporate defendant such as the motives of the parties such as the public's interest in the documents is there a stream i'm happy to address it so i don't think there's any standing issue and i think that's true for three reasons  the first point i want to make here is the class representatives represent a class of fifty thousand health care plans that have no access to documents of a ship this court and we'll be evolved to recognize there's a number of circumstances in which court which is that g s k i summits of this court that there needs to basically be a journalist or an interviewer in order for the public right of access to be protected that's not true in cendant in this court's decision and cendant there was no interviewer and the party benefiting from the access didn't even bring up the issue itself this court raised the issue because it said and i want to quote here this court has an inherent supervisory power over rising out of the rule twenty six to clarify rules for district court basically recognize how important it is that the interests of the class people because they stand in a slightly different posture than the public they have a true interest in this case but they're not live in st it was a in order to provide clarity to the district if we look at this standing question differently with respect to the common law right of access as opposed to a first amendment right so just pay it does not argue that we don't have standing to raise the thank you we'll have you back on  could i just stand bush that you agree that it's well settled that the common law right of access applies to the summary judgment proceedings here and elsewhere i do but i want to make i want to make an important distinction or clarification with respect to that issue because if we're talking about documents that were properly submitted as part of a summary judgment issue then i have absolutely no dispute with what you just said i absolutely agree with that but what has some sometimes happened in court litigation and certainly happened in connection with this master litigation is that when a summary judgment motion filed the kitchen sink gets dumped dead and all sorts of irrelevant matters get get in this challenge right now is well i mean you have you referred to and certainly judgment proceedings generally least that's how i took you to be arguing the kitchen sink gets thrown in and seems to me that summary judgment proceedings as i saw them when i was a district judge and as i see them on review are much better structured the net one may try to throw in the kitchen sink in terms of what goes into an appendix but the growing of issues is a much more one they're saying now is public because of that is a seven hundred page expert report that has no evidentiary value by any can't a document by gawker review which appears not to have occurred in this case categories of documents and the types of documents whether they were study reports mark materials and then we separately had an appendix that attached each document by cockman to those categories we certainly have no analysis by the district court however to suggest that documents by document description and designation was taken into account in terms of what was ultimately decreed right i think that it's fair to say that on the in the actual order itself it does not describe on a document by document analysis that's that's all we have that is and you know one thing that i think  familiar with with this litigation which showed avandia kind of is the many heads of hydra fact and your honor one thing is important what the judge also saw over those ten years was situations where people saw things in the public and made really bad decisions where twenty percent of the people who run avandia went off a band aid because of the media attention and never went back on a different medication so so that is that is what israel continued media attention what's at the heart of this dispute over documents i think it's a combination of a couple things media attention is certainly one of those and you know we talked about in disgust in the perfect argument about study eleven and there were media having access to litigation about alleged pharmaceutical malfeasance yes i think they have the access to the appropriate material from that decision they did judge rufe identified i think about six documents in her order that were documents that they throw in in the kitchen sink they dumped in all sorts of documents she thought there were only about six or seven of are relevant to her decision she described them in detail in the public has access to all that information and if that was not the only thing i mean one of them is as you said that the hider the media that there were thousands of had lived on the mediation on the media and i think judge groups saw firsthand how damaging kind of that kind of information unfiltered way thrown out in the media can be people making horrible business issues i mean harvey said in westinghouse and other cases that harms the public image are not a basis of court records i'm not i mean i have to be something that causes you competitive or the competitive disadvantage in the declarations that we submitted to judge for lay out that competitive disadvantage in great detail it's not something that goes away just because of the passage of time because it's something that builds up over time it's actually i exactly opposite of what plaintiffs are saying  then you look at the harm to the patients not to j f k but when twenty percent of the people that need diabetes medicine don't go back on another diabetes medicine if they don't trust companies anymore that's that's not just a harm that's a there's other medications out there  least right but but when you see a band yet you hear actos you know people complaining about forms of honoraria people make bad treatment decisions when they don't consult their doctors and they react distorted using the media and try to rip saw that if we ever tonight parties arguments to seal records on the basis of standing have you ever denied a party's like i don't well i think the there were times when you say that the first amendment very can't be brought i don't know about a common law right of access here but here's the issue with the standing issue the plaintiffs have access to the documents the class members have access to the documents the absent man because members could have access to the documents under p t o ten they just never bothered to ask for it so the notion that somehow there's this and you talked earlier about in a class situation is a little bit different in some cases it may be but it doesn't have to sit through there what's the purpose of the motion to see the purpose of the motion to steal i just finished my standpoint is i'm not sure if i made it clear enough in p t o ten there is a provision in paragraph six that says if people who are not part of this protective order want access to the documents all they have to do is come forward and they sign a statement that basically says they're going to continue to treat the those those documents confidentially so there is no one being prevented whether they're out of class members or otherwise from having access if there's a proper purpose for them having access and i would concede that anybody who's an absent class member has an absolute right to these documents so the class is not being prevented from seeing anything p t o tend provided the avenue for that so jim you were really in the can we look beyond the close i don't you're looking at whether judge group did the right thing or not the only case was not in front of judge or and so the fact that they're bringing them in now is almost a concession that they didn't have the standing to really make the arms they want to make it was so all i can ask what was the we thought that when you're dumping this kind of information and that has no relevance to the summary judgment issues there's an altar a motive in a play and putting aside what the alter motive of the plaintiff might be we saw in the past that you have competitive injury when that kind of now if you look at this stuff but it is just page after page after page about you know quoting documents and making frankly ridiculous arguments if you know the record but but that would be out there in the public and then we would then have to go out with a repeat liv back to square one because there are no going all the way back to republic of the philippines that it that the companies public image if it's the public's if it's the send this back for a common law right of access type review who should do the review i believe that we should provide the information that we that we can we can if the if there's any confusion about how we did the doc in bangkok and now and i don't know that there could be a few you know in the not in fact conduct a common law right of access discussion and review the mere reference in the footnote to coming right back says is not enough to constitute actual discussion and review pursued to that standard i think it's hard to say if if this was just a one off case where we're there was no history then i would absolutely be here so my sense is that that that knowing charge through the way i do and knowing the experience that she has brought to bear in this case and knowing seen her do this in the other setting she's applying what she's done before the work there that we all know jennifer and i understand there's no question about how good this person is good but in this particular case what is your first review well i think i think you can see that there were things that she did not keep confidential and she you know we had asked her a range of things to be prevented you know from being disclosed and she said no on some of those things and you can see why she were decision you know some of the things that she thought were relevant to understanding her preempt analysis which is what the summary judgment going back to the judge in this original question who is part of the record on this on the summary judgment then she she's not that sort of demonstrate the company's competitive edge over its competitors reputational harm but like the coke exactly and so that's the type of information that can be protected if for example i gathered a bunch of court said that if there is a decline in profits it stems from a decrease in the value of the product to consumers rather from the destruction of the edge the company has of its competitors that cannot be considered that's exactly what we have here we have just anybody who wants to go on line we're going to be right so i think there's a crucial point to make here and first before i sort of address your question head on i want to point out again that it's not our burden to justify need for the documents but moving past that but i'd submit here is that any information that's public right now has moved any competitive harm these documents can do to j f k but what it has not done is give the public access to the details the primary source records of what want what went on here and our next guest says to the score if we can have access to these documents will better understand them to safety will better understand how g s k interactive at the f d a these documents will provide a critical informational wall that will allow the public to play it's fact checking it off so both the common law and the first amendment in vision is fact checking all of the public so that the public can have confidence in its governmental agencies like the f d a but also like the courts the information that's aside from what you just said about any lack suggestion of any lack of improper motives are you suggesting that the court cannot take into account motive  understand who has the burden but you're not suggesting that that cannot be a factor in these cases every courts of appeals have when they address the common law right of access sad that the motives of the party seeking access usually oftentimes newspapers are not at issue because that would subjugate the public's interest and access to the courts to the motives of the of the person bringing in the case here we have a summary judgment record that's to void the plaintiff side of the case  documents that are public in this case are the district court's opinion and jeus case redacted fact proper the district court has specifically asked for just has fact property put into the record publicly but not the plaintiffs in order for the public to have a full understanding of the proceedings in this