NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0426n.06

No. 19-3682

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IN RE: NATIONAL PRESCRIPTION OPIATE 

LITIGATION.

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AMERISOURCEBERGEN DRUG

CORPORATION; MCKESSON CORPORATION,

 Petitioners.

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ON APPEAL FROM THE 

UNITED STATES 

DISTRICT COURT FOR 

THE NORTHERN

DISTRICT OF OHIO 

O R D E R

BEFORE: GUY, CLAY, and GRIFFIN, Circuit Judges.

After this Court issued our Opinion vacating the district court’s Protective Order in Case 

Nos. 18-3839/3860, but before the mandate issued in that appeal, the district court ordered that 

“the Protective Order is hereby lifted as to ARCOS data dated on or before December 31, 2012.” 

(Case No. 1:17-md-02804-DAP, R. 1845, Page ID# 57487–88.) Two of the “Opioid Distributer” 

Defendants involved in the multidistrict litigation filed an Emergency Petition for Writ of 

Mandamus asking this Court to order the district court to vacate its order and to “take no further 

action to implement this Court’s decision” until the mandate issues. (Petition at 1.)

This matter initially came before us as an appeal by Intervenors HD Media Company, LLC 

and The W.P. Company, LLC, d/b/a the Washington Post, of the district court’s Opinion and Order 

rejecting Intervenors’ arguments that the court’s Protective Order was unsupported by good cause. 

We agreed with Intervenors that the Protective Order was not supported by good cause and 

accordingly vacated the Protective Order and remanded the case to permit the district court to 

consider entering a modified order in an Opinion dated June 20, 2019. The Opinion also vacated 
No. 19-3682, In re Nat’l Prescription Opiate Litig.

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the district court’s orders permitting the filing of court records under seal or with redactions and 

remanded the case for the district court to consider entering modified orders.1

After receiving the Emergency Petition for Writ of Mandamus, this Court invited the 

district court to respond to the Petition pursuant to Federal Rule of Appellate Procedure 21(b)(4), 

which the district court did in a letter dated August 8, 2019. On August 12, 2019, Petitioners 

moved this Court for leave to file a Reply to the district court’s letter and tendered the Reply that 

they wished to file. We GRANT Petitioners’ Motion for Leave to File Reply in Support of 

Emergency Petition for Writ of Mandamus; however, for the reasons below, we DENY the 

Emergency Petition for Writ of Mandamus.

This Court has emphasized that “[t]he writ of mandamus is a ‘drastic and extraordinary 

remedy reserved for really extraordinary causes’” and that “[m]andamus should issue only in 

‘exceptional circumstances’ involving a ‘judicial usurpation of power’ or a ‘clear abuse of 

discretion.’” In re United States, 817 F.3d 953, 959–60 (6th Cir. 2016) (quoting Cheney v. U.S. 

Dist. Court, 542 U.S. 367, 380 (2004)).

Petitioners have not demonstrated the sort of “exceptional circumstances” that would 

justify our use of this “drastic and extraordinary remedy.” Id. (quoting Cheney, 542 U.S. at 380). 

In its letter, the district court assured this Court that it would not further modify the Protective 

Order to release more information before the mandate issues, and that “[t]here is no danger that 

the media (or any other entity not already authorized under the existing Protective Order) will 

obtain additional, newer ARCOS data before the Sixth Circuit issues its mandate.” (Letter at 2.) 

These assurances from the district court remove the threat of a “judicial usurpation of power” in 

this case. In re United States, 817 F.3d at 960 (quoting Cheney, 542 U.S. at 380). To the extent 

 

1

Judge Guy concurred in the decision to vacate the district court’s orders concerning the filing of court records under 

seal or with redactions but dissented from the decision to vacate the Protective Order.
No. 19-3682, In re Nat’l Prescription Opiate Litig.

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Petitioners argue that the district court’s assurances are not entitled to our respect because the 

district court has been deceptive or duplicitous in promising not to release information before 

changing course and doing so (see Reply at 2), this is a very serious allegation and we find no 

merit in it.

Petitioners have also failed to demonstrate that the district court’s modification of the 

Protective Order constituted a “clear abuse of discretion” that would justify the use of mandamus. 

In re United States, 817 F.3d at 960 (quoting Cheney, 542 U.S. at 380). As the district court notes

in its letter, there is a general presumption that a district court possesses “substantial latitude in 

deciding whether to modify protective orders.” (Letter at 2 (quoting 8A Fed. Prac. & Proc. Civ. 

§ 2044.1 (3d ed.).) The district court’s order modifying the Protective Order did not purport to 

implement this Court’s June 20, 2019 Opinion, and because the only issue on appeal before this 

Court in Case Nos. 18-3839/3860 was whether the district court’s Protective Order was 

permissible—not whether the Protective Order was required—it does not appear that any 

disposition of the appeal would have left the district court unable to modify its Protective Order. 

Petitioners have therefore failed to demonstrate that the district court’s action constituted a “clear 

abuse of discretion.” In re United States, 817 F.3d at 960 (quoting Cheney, 542 U.S. at 380). 

In sum, Petitioners have not shown “exceptional circumstances” that would warrant our 

use of the “drastic and extraordinary remedy” of mandamus in this case. Id. at 959–60 (quoting 

Cheney, 542 U.S. at 380). Accordingly, we GRANT the Motion for Leave to File Reply in Support 

of Emergency Motion for Writ of Mandamus but DENY the Emergency Petition for Writ of 

Mandamus.

IT IS SO ORDERED.
No. 19-3682, In re Nat’l Prescription Opiate Litig.

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ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk