A Kentucky Court of Appeals decision handed down this month has confirmed a decision from Pike Circuit Court in which the court ruled that specific records should be open to the public.

According to the decision, in 2007, Purdue Pharma reached a settlement with 49 states, not including Kentucky, in regards to pleading guilty to “misbranding OxyContin, ... with the intent to defraud or mislead.” 

That year the state of Kentucky, jointly with Pike County, filed suit against Purdue Pharma. The lawsuit was then moved to federal court, and back to Pike Circuit Court in 2013.

During that case, Purdue Pharma produced more than 17 million pages of discovery, including “the deposition transcript of Dr. Richard Sackler, a Purdue board member; several discovery motions and exhibits; and summary judgment motion and exhibits.” Dr. Sackler was deposed during discovery and his deposition, “in accordance with (a previously entered) protective, it was filed under seal.”

On Dec. 18, 2015, the case was settled for $24 million. The Court of Appeals wrote that the settlement had a “two-fold benefit to Purdue,” in that “(Purdue) avoided judicial resolution of Purdue’s liability based on the circuit court’s consideration of otherwise sealed documents, which Purdue argues justifies keeping the documents sealed ... and settlement eliminated the possibility of future issue preclusion.”

As part of the settlement agreement, “the protective order would remain in effect, and the parties were not to disclose confidential documents.”

Boston Globe Life Sciences Media, LLC, d/b/a STAT then filed an open records request to the office of the Kentucky Attorney General requesting the deposition of Dr. Sackler, the decision said. The Attorney General denied STAT’s request citing the protective order and settlement agreement.

On May 11, 2016, Pike Circuit Judge Steven D. Combs granted STAT’s request, citing “a common law right of public access to the pre-trial discovery material previously sealed.” Combs’ granting of the requests “noted that the parties settled shortly after filing Dr. Sackler’s deposition in the clerk’s office.”

In addition, Combs’ decision “indicated that those court records were appropriate factors in the parties’ decision to settle and ... further found a strong public interest in disclosing court records in matter involving settlements in government agencies.”

The circuit court, through Combs, “ordered redaction of certain personal information,” but “having addressed those privacy concerns, the circuit court ... concluded that Purdue did not identify a countervailing public policy entitled to greater weight that the policy favoring free access to public records,” the Court of Appeals wrote.

According to the justices of the Court of Appeals, citing Combs, Purdue’s “arguments do not overcome the public’s common law right of access [to] these documents ... [and the circuit court] sees no higher value [than] the public (via the media) having access to these discovery materials.”

The court affirmed the May 11, 2016 decision and ordered the discovery unsealed and access to the material afforded to STAT. All justices concurred on the decision.

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