Confidentiality Designation Not Appropriate Merely Because A Document Maybe Harmful, Uncomfortable, Or Embarrassing
- ILS Team
In IN RE VALSARTAN, LOSARTAN, AND IRBESARTAN PRODUCTS LIABILITY LITIGATION, Civil No. 19-2875 (D.N.J. 2021), the issue before the Court was whether a Confidentiality designation pursuant to a Discovery Confidentiality or Protective Order was appropriate.
In this case regarding claims that the generic version of the drug Valsartan for high blood pressure was contaminated with cancer causing chemicals, the dispute before the Magistrate Judge centered around Plaintiffs’ challenges to five confidentiality designations made by Torrent, a finished dose manufacturer of the drug.
Substantively, Torrent argued that the documents should remain confidential because “(1) they are nonpublic and (2) they contain proprietary information and highly sensitive commercial information regarding Torrent’s internal processes, investigations, and communications with its customers that, if disclosed, could cause competitive harm.”
As the party claiming confidentiality, the burden was on Torrent to show that a confidentiality designation was appropriate. According to a supporting affidavit submitted by Torrent’s CEO, “the five documents at issue are documents that Torrent would not reveal to the public and contain proprietary information and highly sensitive commercial information regarding Torrent’s internal processes, investigations, and communications with its customers that, if disclosed, could cause competitive harm.”
Specifically, as to the five challenged emails, Torrent claimed that de-designation would provide competitors insight into how Torrent managed investigations, recalls and customer relationships, provide insight into how Torrent manufactured Valsartan, potentially harm Torrent’s relationship with its customers, provide insight how Torrent investigates alleged impurities, and provide insight into Torrent’s communications with its suppliers.
However, after reviewing the 5 emails, the Magistrate Judge ruled that Torrent’s Confidentiality designations be stricken. “At bottom, Torrent’s emails involve what appears to be routine business communications” stated the Magistrate Judge. “It is not the case that merely because a document may be harmful, uncomfortable or embarrassing that a Confidentiality designation is appropriate.”
The Magistrate Judge further rejected Torrent’s argument that the emails are confidential because that what its clients expected. “This is not an acceptable basis to justify the Confidentiality designation of a routine business communication. Otherwise, large swatches of routine emails would be kept under wraps.”
Torrent’s arguments that customers and competitors might also gain insight on how it handled investigations and recalls was also dismissed. “There is no support to show that Torrent did anything different than any other similarly situated company. There is also no evidence that Torrent’s approach to the recall and the way it handled its investigation, recall and customer communications, was proprietary or secret.”
Finally, the Magistrate Judge rejected as “frivolous” Torrent’s argument that Plaintiffs’ application should be denied because Plaintiffs did not articulate a need for de-designation. The burden to justify confidentiality was Torrent’s, not Plaintiffs’, ruled the Magistrate Judge, and Plaintiffs’ need for de-designation was not a relevant factor to consider.