Confidentiality Orders “serve the beneficial purposes of expediting the flow of discovery material, facilitating the prompt and efficient resolution of disputes, adequately protecting confidential information, and ensuring that protection is afforded to discovery so entitled. However, Courts must be vigilant to assure Confidentiality Orders are not overused and are only used for legitimate purposes. As one court has aptly noted, ‘the purpose of entering a protective order is not to insulate a party from the annoyance, embarrassment, oppression, or burden that may be caused by having to defend claims of wrongdoing the details of which appear in materials produced during discovery.’”
“Good cause” is established by showing that “disclosure will work a clearly defined and serious injury to the party seeking confidentiality. Importantly, circumstances weighing against confidentiality exist when confidentiality is being sought over information important to public health and safety. Also, a court should consider whether the case involves issues important to the public.”
A Court does not have to accept a defendant’s affidavit at face value. “Otherwise, a party can justify its designations by simply supplying a self-serving affidavit.”
In this particular case, “the Court finds that Torrent’s Confidentiality designations are stricken for two substantive reasons. One, the emails do not contain ‘proprietary, trade secret and/or highly confidential information.’ Two, the emails do not have the potential ‘for causing significant competitive harm to Torrent or giving a competitive advantage to others.’ At bottom, Torrent’s emails involve what appears to be routine business communications. Albeit, the emails were prepared in response to what appears to be an unprecedented situation. Although Torrent understandably may not want its documents ‘public,’ it is not the case that merely because a document may be harmful, uncomfortable or embarrassing that a Confidentiality designation is appropriate. Courts have emphatically held that a protective order cannot be issued simply because it may be detrimental to the movant in other lawsuits.
“Torrent’s affidavit overstates its case. Torrent’s emails do not contain any references, nor does Torrent cite to, a proprietary procedure or practice. Nor does Torrent’s affidavit specifically refer to anything of the sort. Further, although Torrent argues its customers may gain insight into how it handled its recall and investigation, there is no support to show that Torrent did anything different than any other similarly situated company. There also is no evidence that Torrent’s approach to the recall and the way it handled its investigation, recall and customer communications, was proprietary or secret. Further, nothing in the emails reflect a particular concern or worry by the authors of the emails that the distribution of the emails should be limited. In addition, none of the emails list or reference proprietary formulas or ingredients other than general references that are likely accessible in documents prepared by or filed with the FDA. Also, none of the emails discuss or reference Torrent’s business plans, revenues, or profits.
“Torrent argues its emails are ‘confidential’ because this is what its clients expected. This is not an acceptable basis to justify the Confidential designation of a routine business communication. Otherwise, large swatches of routine emails would be kept under wraps. General allegations of injury to reputation and client relationships or embarrassment that may result is insufficient to justify judicial endorsement of an umbrella confidentiality agreement.”
In re Valsartan N-Nitrosodimethylamine, Losartan and Irbesartan Products Liability Litigation, No.19-2875, 2021 WL 75258 (D.N.J. Jan. 8, 2021).
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