United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ELAINE E. BUCKLO, District Judge.
The City of Chicago ("City") alleges that several pharmaceutical companies illegally marketed opium-like painkillers ("opioids") to patients suffering from chronic pain unrelated to cancer. See Dkt. No. 81-1 ("Compl."). In response to Defendants' motions to dismiss, the City has indicated that it will file an amended complaint by October 20, 2014.
Meanwhile, three Defendants have moved for entry of a protective order that would require the City to (1) deny a USA Today reporter's pending requests under the Illinois Freedom of Information Act ("IFOIA"), 5 ILCS § 140/1 et seq., for the documents referenced in Paragraphs 68 and 179 of the complaint and (2) deny any other IFOIA requests for documents that the movants produced to the City in response to investigative subpoenas until this litigation ends.
I deny Defendants' motions for entry of a protective order (Dkt. Nos. 90 and 96) for the reasons stated below. USA Today's renewed petition to intervene for the purpose of objecting to these motions (Dkt. No. 132) is denied as moot.
This case arises out of the City's investigation into Defendants' suspected violations of the Chicago False Claims Act, Municipal Code of Chicago ("MCC") § 1-22-010 et seq.
On April 5, 2013, the City served Janssen Pharmaceuticals, Inc. and Johnson & Johnson (collectively, "Janssen") with a subpoena for documents pursuant to § 1-22-050(a) of the MCC. The City also subpoenaed documents from Cephalon, Inc.'s ("Cephalon") parent company on the same day.
In response to Janssen's request to narrow the issues in dispute, the City served Janssen with a revised subpoena on June 27, 2013. After attempting to secure Janssen's voluntary compliance with the revised subpoena, the City petitioned the Circuit Court of Cook County under MCC § 1-22-050(j) for an order enforcing the subpoena. See City of Chicago v. Janssen Pharmaceuticals, Inc., Case No. 2013 L 010572 (Ill. Cir. Ct.).
On November 12, 2013, the judge presiding over the subpoena enforcement proceeding entered an agreed "Confidentiality Stipulation and Protective Order." This order addressed future IFOIA requests for documents Janssen would be producing to the City in response to its investigative subpoena:
The City of Chicago acknowledges that Produced Information may contain trade secrets, proprietary or sensitive commercial information, or other confidential information, and that Janssen considers this information to be protected and exempt from disclosure under the Illinois Freedom of Information Act, Illinois public records law, and any similar federal, state, or municipal law ("Public Disclosure Laws").
If the City of Chicago receives a request made under the Public Disclosure Laws that it believes requires disclosure of any Produced Information, the Corporation Counsel will notify Janssen upon receipt of such request, so as to afford Janssen the opportunity to take steps to prevent disclosure; provided, however, that nothing in this Protective Order shall be read to conflict with the City of Chicago's duty to comply with the Public Disclosure Laws. The parties expressly note, however, that pursuant to the Municipal Code of Chicago § 1-22-050(k), any documentary material, answers to written interrogatories, or oral testimony provided under the subpoena "shall be exempt from disclosure under the Illinois Administrative Procedure Act." Nothing in this Protective Order in intended to diminish the protections afforded to Janssen under this provision or authorize disclosure of information that would otherwise be prohibited under § 1-22-050.
Dkt. No. 92 at Ex. 3 ¶ 8 (paragraph break added); see also id. at ¶ 4(d) (providing that protective order's limitations on disclosure "shall not apply to information where... disclosure is required by law").
After entry of this protective order, Janssen produced almost 115, 000 pages of documents to the City in response to the June 27, 2013 subpoena. In the cover letters accompanying its productions, Janssen took the position that the enclosed documents were "protected and exempt from disclosure under [IFOIA], § 1-22-050(k) of the Chicago False Claims Act, Illinois public records law, and any similar federal, state, or municipal law." See Dkt. No. 93.
Meanwhile, in response to a separate investigative subpoena, Cephalon produced approximately 127, 000 pages to the City starting in December 2013. On March 25, 2014, the City and Cephalon's parent company entered into a "Confidentiality Agreement" that applied to Cephalon's past and future document productions. Cephalon's confidentiality agreement with the City contains the same provision concerning possible ...