Judge Andrews denies competitive decisionmaker access under protective order

In Ferring Pharmaceuticals, Inc. v. Teva Pharmaceuticals USA, Inc., Civ. No. 17-435-RGA (D. Del. Aug. 24, 2017), Judge Richard G. Andrews ruled that it would be inappropriate to add a second in-house designee under the protective order to review an ANDA, as well as sensitive financial and economic data of the adverse party.  The would-be second in-house attorney was a competitive decisionmaker, willing to sign a competitive decisionmaking bar, and would “be the key decision maker in any settlement negotiation in this case.”  But Judge Andrews found that “no matter how much good faith is being shown, . . . doubling the distribution by adding a competitive decisionmaker to the recipient list significantly increases the risk [of improper disclosure] without necessarily conferring any particular benefit . . . .”

Ferring 17-435

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