UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

UNITED STATES OF AMERICA, 

Plaintiff, 

vs. 

BAYER CORPORATION, 

Defendant 

Civil Action No. 07-01 (JLL)(JAD) 

IN RE BAYER PHILLIPS COLON HEALTH 

PROBIOTIC SALES PRACTICES 

LITIGATION

 Civil Action No. 11-3017(JLL)(JAD)

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PLAINTIFFS’ REPLY BRIEF IN FURTHER SUPPORT 

OF APPEAL OF MAGISTRATE JUDGE DISCOVERY ORDER 

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James E. Cecchi 

Lindsey H. Taylor 

CARELLA, BYRNE, CECCHI 

OLSTEIN, BRODY & AGNELLO 

5 Becker Farm Road 

Roseland, New Jersey 07068 

(973) 994-1700 

 

Timothy G. Blood 

Thomas J. O’Reardon II 

BLOOD HURST & O’REARDON, LLP 

701 B Street, Suite 1700 

San Diego, California 92101 

(619) 338-1100 

Adam J. Levitt 

John E. Tangren 

GRANT & EISENHOFER P.A. 

30 North LaSalle Street, Suite 1200 

Chicago, Illinois 60602 

(312) 214-0000 

Attorneys for Plaintiffs

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LEGAL ARGUMENT 

THE DISCOVERY CONFIDENTIALITY 

ORDERS SHOULD BE MODIFIED TO ALLOW 

CLASS COUNSEL AND GOVERNMENT COUNSEL TO 

COMMUNICATE ABOUT BAYER CONFIDENTIAL INFORMATION 

 Presently before the Court is Plaintiffs’ appeal of the Magistrate Judge’s Order denying 

their letter application to modify the Discovery Confidentiality Orders so that counsel for Class 

Plaintiffs and for the Government can communicate with each other and exchange documents 

regarding confidential information provided in the two cases. Bayer addresses a number of 

issues, but not the one that is really before the Court: will Bayer’s interest in maintaining the 

confidentiality of its information vis-à-vis the public to protect its competitive advantage in the 

marketplace be affected if the Discovery Confidentiality Orders are modified? See Pansy v. 

Borough of Stroudsburg, 23 F.3d 771, 786-87 (3d Cir. 1994). 

 Clearly, that interest will not be adversely affected, because the proposed modification to 

the Discovery Confidentiality Orders would provide that any information exchanged would 

remain confidential under the terms of the receiving party’s Order. Nowhere does Bayer even 

address this issue, much less attempt to refute Plaintiffs’ arguments on that score. Bayer’s 

confidential information will remain confidential. 

 This application is not about challenging Bayer’s document production in the 

Government case, as Bayer appears to argue here, or about requiring Bayer to produce to the 

Government anything it hadn’t produced before, as the Magistrate Judge seemed to believe. 

Class Plaintiffs assume that Bayer had a bona fide reason to assert that the documents in issue 

were not responsive to whatever document requests the Government had made. However, that 

does not mean that the documents and information are not relevant to the issues in the 

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Government case. Class Plaintiffs believe that they are.

1

 The fact that the Government has not 

asked for them itself does not mean that the documents and information is not relevant to the 

issues in the Government’s case, as Bayer contends. (Bayer Brief at 7) Both Class Plaintiffs and 

the Government are caught in the Catch-22 caused by the separate Discovery Confidentiality 

Orders. The Government does not know what information that Class Plaintiffs have that it might 

want to ask for and Class Plaintiffs cannot tell them because to do so would violate the two 

separate Confidentiality Orders. Bayer wants to keep it that way. Bayer’s arguments are largely 

procedural, and it points to a few pages in the documents that, standing alone, would be 

irrelevant. However, a close reading of Bayer’s opposition Brief does not refute Plaintiffs belief 

that the documents in issue are relevant to the issues being litigated in the Government’s case 

and contradict certain positions Bayer has taken in that case. 

 The parties have met and conferred relating to the modifications of the Discovery 

Confidentiality Orders. The issue that appears to be the impediment to Class Plaintiffs’ 

obtaining confidential documents filed in the Government case is that they contain or reference 

confidential information from Wakunaga, who supplies the raw material for PCH to Bayer. That 

process is still ongoing, and Class Plaintiffs have separately contacted Wakunaga to try to move 

that process along. However, the meet-and-confer process relating to Class Plaintiffs’ 

 

1

 Bayer argues that the documents Class Plaintiffs wish to share include some irrelevant 

documents such as “logos, signature blocks and duplicate documents”. Bayer Brief at 7, n. 2. It 

is true that certain documents include as separate pages logos and signature blocks, and there are 

several versions of some the documents. Again, that has nothing to do with whether the 

information in the documents are otherwise relevant. This is more misdirection by Bayer. Bayer 

also complains that Class Plaintiffs’ wish to communicate with the Government about 

confidential information is some new position. Class Plaintiffs wished to share Bayer’s 

confidential information with the Government and for the Government to have the same ability. 

How did Bayer think that was to be accomplished without some communication between the 

two? 

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communicating with the Government about Bayer’s confidential information or providing 

confidential documents to the Government was quickly exhausted. Bayer adamantly refused. 

 Class Plaintiffs have provided more than ample good cause to modify the Discovery 

Confidentiality Orders in both cases. The parties and the Court are entitled to all relevant 

information relating to the issues before the Court. Allowing Class Plaintiffs and the 

Government to share and discuss Bayer confidential information under the auspices of the 

Discovery Confidentiality Orders would protect Bayer’s interest in its maintaining the 

confidentiality of Bayer’s information, and also “promote fairness and efficiency”. Pansy, 23 

F.3d at 787. 

CONCLUSION 

 For the reasons set forth above and in Plaintiffs’ moving papers, the May 8, 2015 Order 

of the Magistrate Judge denying Class Plaintiff’s application to modify the Discovery 

Confidentiality Orders should be reversed. 

CARELLA, BYRNE, CECCHI, 

OLSTEIN, BRODY & AGNELLO, P.C. 

Attorneys for Plaintiffs 

 By: /s/ James E. Cecchi 

 JAMES E. CECCHI 

Dated: June 2, 2015 

Timothy G. Blood 

Thomas J. O’Reardon II 

BLOOD HURST & O’REARDON, LLP 

701 B Street, Suite 1700 

San Diego, California 92101 

(619) 338-1100 

 

Adam J. Levitt 

John E. Tangren 

GRANT & EISENHOFER P.A. 

30 North LaSalle Street, Suite 1200 

Chicago, Illinois 60602 

(312) 214-0000 

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