Judges Vary on Cross-Use Provisions in Protective Orders

Judge Andrews of the District of Delaware recently provided some guidance on protective order issues in Hatch-Waxman cases.  Allergan USA, Inc. v. Aurobindo Pharma Ltd.  At issue was whether Plaintiffs should be permitted to disclose one defendant’s confidential information to another defendant. While acknowledging it was a close call, Judge Andrews ultimately rejected Plaintiffs’ position and included a provision prohibiting “cross-disclosure” of defendants’ confidential information.

Judge Andrews had decided this issue once before and emphasized the importance of predictability in reaching the same decision here.  Plaintiffs failed to cite Judge Andrews’ earlier decision on this issue.  This not only appeared to frustrate Judge Andrews, it prevented Plaintiffs from arguing why a different outcome was warranted in this case.

In the end, the decision whether to permit cross-use of a defendant’s confidential information likely comes down to who your judge is (although Judge Stark has gone both ways on the issue):

Adopted a cross-use provision

  • Judge ConnollyPharmacyclics LLC v. Fresenius Kabi USA, LLC, No. 18-192-CFC Oral Order (D. Del. Oct. 18, 2018)
  • Judge Stark H. Lundbeck A/S v. Apotex, Inc., No. 18-88-LPS Oral Order (D. Del. Sept. 13, 2018)
  • Judge SchneiderShire, LLC v. CorePharma LLC, No. 14-5694-JS, (D.N.J. May 18, 2015)

Disallowed cross-use of confidential information without prior approval

  • Judge AndrewsAstraZeneca LP v. Sigmapharm Labs., LLC, C.A. No. 15-01000-RGA (D. Del. April 26, 2016)
  • Judge Burke Astellas v. Actavis, No. 16-905-SLR-CJB (D. Del. July 20, 2017)
  • Judge Stark Novartis Pharms. Corp. v. Apotex Inc., C.A. No. 18-1038-LPS (D. Del. Oct. 16, 2018)
  • Judge MannionIn re Fetzima, C.A. No. 17-10230 (D.N.J. May 21, 2018)