Case 2:15-cv-01455-WCB Document 284 Filed 02/28/17 Page 1 of 17 PageID #: 10575
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`ALLERGAN, INC.,
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`Plaintiff,
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`v.
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`TEVA PHARMACEUTICALS USA, et al.,
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`§
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`Defendants.
`______________________________________________________________________________
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`ALLERGAN, INC.,
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`Case No. 2:15-cv-1455-WCB
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` LEAD CASE
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` Case No. 2:16-cv-0401-WCB
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` §
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`§
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`Plaintiff,
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`FAMY CARE LIMITED,
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`v.
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`Defendant.
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is the Opposed Motion to Amend the Stipulated Protective Order in
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`Civil Action No. 2:16-cv-0401 as to Defendant Famy Care Limited Only, Dkt. No. 271, filed by
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`defendant Famy Care Ltd. (“FCL”). FCL requests that the Protective Order governing the
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`consolidated case be amended in FCL’s individual case to allow two non-attorneys to view
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`material that the plaintiff Allergan, Inc., designated “Confidential.” FCL has also filed
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`Defendant Famy Care Limited’s Motion for In-Person Hearing, Dkt. No. 283, which requests an
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`in-court hearing on its motion to amend the protective order. Plaintiff Allergan, Inc., also
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`opposes this motion. Dkt. No. 283, at 4. The Court DENIES both motions.
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`1
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`Case 2:15-cv-01455-WCB Document 284 Filed 02/28/17 Page 2 of 17 PageID #: 10576
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`BACKGROUND
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`On August 24, 2015, Allergan filed Case No. 2:15-cv-1455 against Teva Pharmaceuticals
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`USA, Inc.; Akorn, Inc.; Mylan Pharmaceuticals, Inc.; and Mylan, Inc. Allergan filed a separate
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`action against Innopharma, Inc., on September 8, 2015. Allergan, Inc. v. Innopharma, Inc., Case
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`No. 2:15-cv-1504 (E.D. Tex.). That case was consolidated with the previous action on October
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`29, 2015. Id., Dkt. No. 20.
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`On January 4, 2016, the Court entered a protective order agreed upon by the parties that
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`were then party to the consolidated case. Dkt. No. 86.1 Under that protective order, the parties
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`may designate as “Confidential” any material “that a Producing Party believes in good faith can
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`be disclosed to select employees or agents of a Receiving Party . . . solely for the purposes set
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`forth herein without substantial risk of harm to the Producing Party.” Id. at 3. In defining
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`“Confidential” information, the order provides:
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`Examples of such information include, but are not limited to: trade secrets or
`other confidential research, development, commercial, proprietary, non-public,
`technical, business, financial, patent prosecution, sensitive, or private information,
`including any approved or unapproved New Drug Application (NDA) or
`Abbreviated New Drug Application (ANDA) that purports to cover a product
`involved in this suit and any amendments thereto, or any correspondence with the
`FDA regarding same. The term also includes extremely sensitive confidential
`information that a Producing Party believes in good faith: (i) creates a substantial
`risk of harm to the Producing Party if disclosed to select employees or agents of a
`Receiving Party . . . ; (ii) is necessary to protect the privacy interests of an
`individual; or (iii) is subject to an express obligation of confidentiality owed by
`the Producing Party to a third party.
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`Id. Access to Confidential information is restricted to the receiving party’s outside counsel and
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`“up to three In-House counsel per group of affiliated parties and each counsel’s clerical staff and
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`paralegals.” Id. at 8.
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`1 “Dkt. No.” citations refer to Case No. 2:15-cv-1455, unless otherwise noted.
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`2
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`Allergan sued FCL on April 12, 2016, and Allergan and FCL jointly moved to
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`consolidate the case with the previously instituted action, No. 2:15-cv-1455 (lead case). See
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`Case No. 2:16-cv-401, Dkt. Nos. 1, 29. The joint motion to consolidate did not mention the
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`protective order entered in the lead case. Id., Dkt. No. 29. Neither did the subsequent
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`consolidation order entered on June 16, 2016. Dkt. No. 140.
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`The parties, including FCL, engaged in discovery under the existing protective order
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`through February 10, 2017, with expert discovery continuing through May 16, 2017. See Dkt.
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`No. 269, at 2. FCL, for example, “was providing accelerated fact discovery” during the summer
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`of 2016. Dkt. No. 271, at 4 (FCL served initial disclosures as well as noninfringement and
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`invalidity contentions in July 2016, and produced documents to Allergan on June 6 and June 20,
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`2016).
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`It appears that FCL first proposed allowing non-attorneys access to Confidential
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`information on October 31, 2016. Dkt. No. 271-5; compare Dkt. No. 271-4 (email from FCL’s
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`counsel to Allergan’s counsel on September 9, 2016, states, without further explanation, that
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`FCL would “like to discuss a modification to the protective order” at a future date). FCL
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`requested that Ms. Minaksi Bhatt, an attorney and Vice President of Intellectual Property at
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`Lupin Pharmaceuticals, Inc., (collectively, together with Lupin Ltd., “LPI”), as well as Ms.
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`Rachita Naidu and Mr. Manish Mundra, two non-attorneys in LPI’s Intellectual Property
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`Management Group, be designated as FCL’s three “In-House counsel” representatives.2 Dkt.
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`No. 271, at 1-2.
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`2 FCL represents that it entered into an agreement with LPI granting LPI the authority to
`supervise and control the litigation, and therefore proposes LPI personnel as “In-House counsel.”
`Dkt. No. 271, at 1 n.3. (FCL is the ANDA-holder; LPI will act as FCL’s United States
`distributor. Id.) Allergan has not opposed FCL’s motion to amend the protective order on this
`ground.
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`3
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`In nearly identical declarations, Ms. Naidu and Mr. Mundra averred that LPI’s
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`Intellectual Property Management Group, of which they are a part, “supervises FCL’s litigation
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`counsel in this case,” and that they review FCL’s filings, contentions, and discovery responses,
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`and will review FCL’s expert reports. Dkt. No. 271-10, at 3; Dkt. No. 217-11, at 3. They also
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`state that their “responsibilities at Lupin are limited to management of intellectual property and
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`patent litigation,” explaining that they “track patent litigations, provide updates on those
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`litigations to management, and . . . communicate with other groups about those litigations,”
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`while limiting those communications “to information already in the public domain.” Id.
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`Allergan agreed to treat Ms. Bhatt as “In-House counsel” under the protective order but
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`objected to treating Ms. Naidu and Mr. Mundra in that manner, because they are not attorneys.
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`As revealed by FCL’s briefing of its motion to modify the protective order, LPI has another in-
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`house attorney, Ms. Kathryn Jones, who works with Ms. Bhatt but whom FCL has not proposed
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`to serve as “In-House counsel” under the protective order. See Dkt. No. 279-3.
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`DISCUSSION
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`I. Legal Standard
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`The parties disagree about the proper legal standard for the Court to apply to this disputed
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`issue. FCL contends that it never agreed to have the existing protective order govern the
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`consolidated cases and that Allergan bears the burden of proving that the existing protective
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`order should apply to FCL. Allergan, meanwhile, argues that the existing protective order
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`applies to all of the parties in the consolidated cases and that FCL bears the burden of showing
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`good cause to amend that protective order as it applies to FCL.
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`Even though FCL’s case was consolidated after the protective order had been entered in
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`the lead case, that does not mean that FCL’s case is not governed by the protective order. As
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`4
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`Case 2:15-cv-01455-WCB Document 284 Filed 02/28/17 Page 5 of 17 PageID #: 10579
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`stated in the consolidation order, FCL’s separate case would “remain[] active for venue
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`determinations and trial,” but the case against FCL was otherwise “consolidated for all pretrial
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`issues (except venue) with the Lead Case.” Dkt. No. 140, at 1. The “parties [were] instructed to
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`file any future filings (except relating to venue) in the Lead Case.” Id. In other words, venue
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`and trial were carved out, but the FCL case was consolidated for all other purposes.
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`Furthermore, FCL did not object to the protective order for more than four months after
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`consolidation. Meanwhile, FCL and Allergan were engaged in discovery and were producing a
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`large volume of documents pursuant to the existing protective order. See, e.g., Dkt. No. 271, at 4
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`(FCL made two document productions to Allergan in July 2016). Allergan, in particular,
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`produced more than 1.5 million pages of documents under the terms of the protective order. Dkt.
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`No. 278, at 7. For months, FCL accepted Allergan’s productions under the protective order and
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`gave no reason for the parties to behave otherwise. Its contention that the protective order
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`should be modified in its case comes late and ignores the prior proceedings in the case.
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`Thus, after successfully moving to consolidate the cases for all pretrial issues but venue,
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`FCL accepted discovery on the same terms as the other defendants without objection. The
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`consolidation order and FCL’s conduct establish that the parties have treated the existing
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`protective order as applicable to the entire consolidated case, including FCL’s individual case.
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`FCL’s current motion is therefore properly viewed not as an opposition to the entry of a
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`protective order under Fed. R. Civ. P. 26(c), but as a request to modify the existing one.
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`FCL argues that Allergan should bear the burden of showing good cause to maintain the
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`existing protective order in effect as to FCL even if, consistent with the title of FCL’s motion,
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`FCL is viewed as moving to amend the current protective order. According to FCL, the
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`nonmoving party always has the burden of showing good cause when the moving party
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`5
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`Case 2:15-cv-01455-WCB Document 284 Filed 02/28/17 Page 6 of 17 PageID #: 10580
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`challenges a blanket protective order—i.e., an order that allows the producing party to determine
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`the confidentiality designation of its documents. See United States v. Ocwen Loan Serv’g, No.
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`4:12-CV-543, 2016 WL 278968, at *3, *4 (E.D. Tex. Jan. 22, 2016) (citing In re Enron Corp.
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`Sec., Derivative, & ERISA Litig., No. MDL-1446, 2009 WL 3247432, at *3 (S.D. Tex. Sept. 29,
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`2009)).
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`FCL’s position is based on an incorrect reading of the case law. The nonmoving party
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`does not always bear the burden of defending a blanket protective order; rather, the nonmoving
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`party bears the burden of defending its designations if the moving party challenges the good
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`cause basis for the document designations. See In re Enron, 2009 WL 3247432, at *3 (“Such
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`blanket orders are inherently subject to challenge and modification, as the party resisting
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`disclosure generally has not made a particularized showing of good cause with respect to any
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`individual document.”).3
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`Here, FCL is not challenging the good cause basis for Allergan’s confidentiality
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`designations, or even the good cause basis for a two-tier protective order. Indeed, FCL
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`repeatedly argues that its proposed modification permitting access to non-attorneys will preserve
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`Allergan’s “Confidential” designations and not result in further disclosure or use. See Dkt. No.
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`271, at 6 (“FCL accepts the existing Order (Dkt. No. 86) except for this dispute over Section
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`5(a)(ii) (and the related definitions), governing the access of in-house employees to confidential
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`materials.”). Clearly, FCL is challenging only the good cause for limiting access to these
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`documents to in-house non-attorney employees. As the movant on that issue, FCL bears the
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`burden of showing good cause for the modification.
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`3 In fact, until mid-January 2017, FCL itself designated “every document it produced
`‘Confidential.’” Dkt. No. 279, at 1.
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`6
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`Case 2:15-cv-01455-WCB Document 284 Filed 02/28/17 Page 7 of 17 PageID #: 10581
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`The Court also notes that, to the extent FCL argues that the protective order does not
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`control, this district’s Local Patent Rule 2-2 would apply. That Rule provides:
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`If any document or information produced under these Patent Local Rules is
`deemed confidential by the producing party and if the Court has not entered a
`protective order, until a protective order is issued by the Court, the document shall
`be marked “confidential” . . . by the disclosing party and disclosure of the
`confidential document or information shall be limited to each party’s outside
`attorney(s) of record and the employees of such outside attorney(s).
`If a party is not represented by an outside attorney, disclosure of the confidential
`document or information shall be limited to one designated “in house” attorney[.]
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`If FCL were correct that the existing protective order does not apply, then it would now be
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`operating under the Local Rule, which allows only outside counsel to access “Confidential”
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`material and is much more restrictive than the existing protective order in the consolidated cases.
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`In any event, for the reasons set forth below, the Court concludes that FCL has not shown any
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`adequate reason to modify the access provision of the existing protective order, as it applies to
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`FCL.
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`II. FCL Has Not Shown Good Cause to Modify the Protective Order
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`The Court has “broad discretion in entering and modifying [a protective] order.”
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`Raytheon v. Indigo Sys. Corp., No. 4:07-cv-109, 2008 WL 4371679, at *2 (E.D. Tex. Sept. 18,
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`2008). When “deciding whether to modify a stipulated protective order at the behest of a party
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`that originally agreed to the order . . . , the court considers four factors: (1) the nature of the
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`protective order, (2) the foreseeability, at the time of the issuance of the order, of the
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`modification requested, (3) the parties’ reliance on the order, and most significantly (4) whether
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`good cause exists for modification.” United States v. Ocwen Loan Serv’g, 2016 WL 278968, at
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`*2 (quoting Raytheon, 2008 WL 4371679, at *2) (internal quotation marks omitted).
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`Case 2:15-cv-01455-WCB Document 284 Filed 02/28/17 Page 8 of 17 PageID #: 10582
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`A. Nature of the Protective Order
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`The “nature” of the protective order refers to “its scope and whether it was court imposed
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`or stipulated to by the parties.” Ocwen Loan Serv’g, 2016 WL 278968, at *2. Here, the relevant
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`“scope” of the existing protective order is the provision limiting access to three in-house counsel
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`(and clerical staff and paralegals). The undisputed definition in the protective order of
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`“Confidential information” is “trade secrets or other confidential research, development,
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`commercial, proprietary, non-public, technical, business, financial, patent prosecution, sensitive,
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`or private information.” Dkt. No. 86, at 3. The definition also includes “extremely sensitive
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`confidential information that . . . (i) creates a substantial risk of harm to the Producing Party if
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`disclosed to select employees or agents of a Receiving Party . . . ; (ii) is necessary to protect the
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`privacy interests of an individual; or (iii) is subject to an express obligation of confidentiality” to
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`a third party. Id.
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`Under this definition, restricting access to attorneys is reasonable. FCL argues that its
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`proposed non-attorney designees do not present a risk of disclosure and will sign statements
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`agreeing to this Court’s jurisdiction and to abide by the prospective restrictions imposed by the
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`protective order on in-house counsel with access to confidential material. See Dkt. No. 271-10,
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`at 3-4 (citing Dkt. No. 86, at 8); Dkt. No. 271-10, at 3-4 (same). Regardless of those promises,
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`however, those individuals are not attorneys, and that distinction matters. As the Federal Circuit
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`stated in U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468 (Fed. Cir. 1984), in the context
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`of access to and handling of confidential material, “retained” and “in-house” counsel are both
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`“officers of the court, are bound by the same Code of Professional Responsibility, and are
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`subject to the same sanctions.” See also Round Rock Res., LLC v. Dell Inc., No. 4:11-CV-332,
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`2012 WL 1848672, at (E.D. Tex. Apr. 11, 2012) (relying on U.S. Steel Corp. “[i]n determining
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`Case 2:15-cv-01455-WCB Document 284 Filed 02/28/17 Page 9 of 17 PageID #: 10583
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`whether a protective order should bar one party’s attorney access to information”) (emphasis
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`added). FCL’s proposed non-attorney designees are not officers of the court, are not bound by
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`the same Code of Professional Responsibility, and are not subject to the same sanctions. They
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`cannot be disbarred or disciplined in the same way, and therefore they do not face similarly
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`serious consequences for breach of the protective order. And while the proposed non-attorneys
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`may agree to submit to the Court’s jurisdiction, the Court is aware that it may have limited or no
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`enforcement power over the designees (who are located in India), and over Allergan’s documents
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`once they are sent abroad for review.
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`FCL nevertheless emphasizes that its proposed non-attorneys have been granted access to
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`documents of some level of confidentiality in other actions by agreed stipulation, e.g., Dkt. No.
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`271-13, and both non-attorneys declare that they have never been accused of improper
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`disclosure, Dkt. No. 271-10, at 4; Dkt. No. 271-11, at 4. But Allergan is not solely concerned
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`with the character and intent of these non-attorneys; it is also concerned with the risk of
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`inadvertent disclosure. See U.S. Steel, 730 F.2d at 1468 (“To the extent that [inadvertent
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`disclosure] may be predicted, and cannot adequately be forestalled in the design of a protective
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`order, it may be a factor in the access decision.”).
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`It is unclear whether the non-attorneys are personally involved in competitive
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`decisionmaking, but both state that they provide “updates to management.” Dkt. No. 271-10, at
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`3; Dkt. No. 271-11, at 3. At a minimum, that characterization of their responsibilities suggests
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`that the non-attorneys are working closely with those involved in competitive decisionmaking.
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`For those reasons, and because LPI has in-house attorneys, the Court concludes that FCL has
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`failed to show the protective order is overly broad to the extent that it restricts access to retained
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`and in-house attorneys. Compare PACid Group, LLC v. Apple, Inc., No. 6:09-cv-143, 2010 WL
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`9
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`Case 2:15-cv-01455-WCB Document 284 Filed 02/28/17 Page 10 of 17 PageID #: 10584
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`10094684, at *4 (E.D. Tex. Feb. 19, 2010) (finding absence of good cause for a protective order
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`restricting access to confidential materials by plaintiff’s counsel, because a “reason to believe”
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`that outside counsel was a competitive decisionmaker “cannot be the basis for restricting an
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`ongoing attorney-client relationship.”) (emphasis added).
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`In addition, the Court considers FCL’s willingness to date to litigate this case under the
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`existing protective order, which weighs against modification. See Ocwen Loan Serv’g, 2016
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`WL 278968, at *3 (collecting cases reasoning similarly and concluding that “the parties agreed
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`to the protective order; and therefore, that factor weighs against modification.”).
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`B. Foreseeability of the Modification Requested
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`Parties that agree to a protective order are responsible for its terms; thus, a “party’s
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`oversight in not negotiating a provision in a protective order considering a matter which should
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`have been reasonably foreseeable at the time of the agreement has been held not to constitute
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`good cause for the relief from the protective order.” Ocwen Loan Serv’g, 2016 WL 278968, at
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`*3. FCL was not a party to the case at the time the protective order was entered. However, FCL
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`knew before August 2015 that LPI had the authority to supervise its case. See Dkt. No. 271-3, at
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`3 (LPI had agreed to supervise FCL’s case before August 2015). FCL now seeks a modification
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`that would allow LPI in-house employees to review Allergan’s confidential information, a desire
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`that was foreseeable at the time FCL’s case was consolidated—i.e., at the time FCL accepted the
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`protective order as governing. See Ocwen Loan Serv’g, 2016 WL 278968, at *3 (finding that
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`this factor weighed against modification because the movant’s desire “to review the evidence
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`obtained in the litigation” was foreseeable “at the time [the parties] negotiated and agreed to the
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`Protective Order.”). This factor cuts against FCL.
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`C. The Parties’ Reliance on the Protective Order
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`“The reliance factor focuses on the extent to which the party opposing the modification
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`relied on the protective order in deciding the manner in which documents would be produced in
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`discovery.” Ocwen Loan Serv’g, 2016 WL 278968, at *3. It is “‘presumptively unfair’ to
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`modify protective orders which assure confidentiality and upon which the parties have
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`reasonably relied.” Id.
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`Allergan made huge documentary productions under the governing protective order, and
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`FCL made no objection to the applicability of the protective order to the discovery proceedings
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`until the end of October 2016. Allergan made its designations in reliance on the terms of the
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`two-tier protective order that provides only two options: either no designation, or a
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`“Confidential” designation. In other words, instead of multiple tiers of confidentiality (e.g.,
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`“Confidential,” “Highly Confidential,” “Attorneys’ Eyes Only,” etc.), the existing protective
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`order allows for only one enhanced level of protection (“Confidential”). This enhanced level
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`encompasses both “trade secrets or other confidential [information]” as well as “extremely
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`sensitive confidential information.”
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`Allergan agreed to the simplified two-tiered protective order with the understanding that
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`its highly sensitive documents could be viewed by in-house attorneys, but not in-house non-
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`attorneys. The protective order is therefore distinguishable from nearly all of the protective
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`orders FCL cites from other cases in which its non-attorney designees have been granted access
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`to confidential information. See Dkt. No. 271-12 (stipulated protective order allowed access to
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`all “confidential” information, but not all “highly sensitive” or “confidential health”
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`information); Dkt. No. 271-13 (stipulated protective order allowed access to “confidential” but
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`not “highly sensitive” information); Dkt. No. 271-15 (same); Dkt. No. 271-17 (same); Dkt. No.
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`11
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`Case 2:15-cv-01455-WCB Document 284 Filed 02/28/17 Page 12 of 17 PageID #: 10586
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`271-18 (stipulated protective order allowed access to “proprietary” and “highly proprietary” but
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`not “outside counsel only” information); see also, e.g., Dkt. Nos. 271-21 and 271-22 (Lupin
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`proposes providing in-house non-attorneys access to “confidential,” not “highly confidential,”
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`information under a two-tiered protective order).
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`It would be unfair to penalize Allergan now, when discovery is nearly complete, for
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`relying on the existing two-tier protective order. See Ocwen Loan Serv’g, 2016 WL 278968, at
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`*3 (“The Court finds that the end of the discovery period, after the parties have relied upon the
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`Protective Order to produce documents in the case, is not the appropriate time to dispute the
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`Protective Order, into which the parties jointly entered.”). This factor also cuts against FCL.
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`D. Existence of Good Cause for the Modification
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`Good cause “requires changed circumstances or new situations warranting modification
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`of a protective order.” Ocwen Loan Serv’g, 2016 WL 278968, at *4 (internal quotation marks
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`omitted). “[T]he [C]ourt must weigh [the moving] party’s need for modification against the
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`other party’s need for protection, and ought to factor in the availability of alternatives to better
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`achieve both sides’ goals.” Id. (quoting Peoples v. Aldine Indep. Sch. Dist., No. 06-2818, 2008
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`WL 2571900, at *3 (S.D. Tex. June 19, 2008)). FCL presents no evidence of changed
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`circumstances or new situations, as it knew of LPI’s supervisory obligations at the time of
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`consolidation.4
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`Regarding alternatives, FCL states that it “will agree that no Allergan manufacturing or
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`process information may be disclosed to the [non-attorney] designees.” Dkt. No. 279, at 5. In
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`light of Allergan’s reliance on the protective order in making its designations, this is not
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`particularly helpful. FCL’s proposal would impose a three-tier protective order retroactively,
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`4 If anything, the “new information” that LPI has at least two in-house counsel weighs
`against modification.
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`12
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`Case 2:15-cv-01455-WCB Document 284 Filed 02/28/17 Page 13 of 17 PageID #: 10587
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`after Allergan’s production of 1.5 million documents. Worse, Allergan would bear the costs of
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`the modification, as it would need to review the documents it has previously designated
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`“Confidential” and re-designate them as either “Confidential” or “Manufacturing/Process
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`Information.”
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`Allergan, meanwhile, proposes a compromise modification that “(1) [FCL]’s non-
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`attorney litigation managers could access briefs and expert reports submitted in this case, but not
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`the underlying Confidential documents cited in those briefs or attached as exhibits; (2) to the
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`extent [FCL]’s non-attorney litigation managers want to view Confidential documents, including
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`those cited in briefs or expert reports, they could view them in the United States, but those
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`documents would not be permitted to leave the country, either physically or electronically.” Dkt.
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`No. 280, at 1-2 n.1. The Court accepts Allergan’s proposal as a reasonable accommodation of
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`FCL’s needs.
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`FCL has not established the necessity of any greater modification of the protective order.
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`This is not the situation, presented by some of the cases FCL cites (e.g., Dkt. Nos. 271-14, 271-
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`16, 271-19, 271-20, and 271-21), where no in-house counsel exist. Here, LPI has at least two:
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`Ms. Minaksi Bhatt and Ms. Kathryn Jones. See Dkt. No. 279-3, at 3. Ms. Bhatt states that LPI’s
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`litigation docket of 22 U.S. and 11 international patent actions is too heavy for her and Ms. Jones
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`to “effectively manage . . . on a daily basis.” Id. While those attorneys may be busy, the
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`protective order allows for access by attorneys’ clerical and paralegal staff, where responsibility
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`would still lie with the attorney.
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`Like the court in Cosmo Technologies Ltd. v. Lupin Ltd., this “Court is not persuaded
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`that [FCL] will be unfairly disadvantaged if non-attorney staff, who lack the same professional
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`obligations and are more likely involved in competitive decisionmaking, are prohibited from
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`accessing such information.” Dkt. No. 278-4 (concluding that plaintiff had “met its burden to
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`show that its proposed limitation [restricting access to confidential materials to attorneys] is
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`warranted”). FCL’s attempt to use the designated attorney’s workload to shift the responsibility
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`to non-attorneys in an entirely different division of the company would substantively change the
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`game. See U.S. Steel, 730 F.2d at 1468. In any event, Allergan’s proposed compromise relieves
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`the designated attorney of certain burdens the attorney would otherwise bear, to the extent FCL
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`wishes to exercise that option.
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`Finally, FCL complains that the volume of sealed filings hampers its non-attorney
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`supervisors’ ability to perform their duties and requires them to engage in onerous redaction
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`proceedings with Allergan’s counsel. But, first, this redaction process is already required for
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`anything designated Confidential by another defendant. See Dkt. No. 86, at 7. Second, and
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`more importantly, the Court has required the parties to file public redacted versions, as required
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`by law. Dkt. No. 208 (Sealing Order); see also Dkt. No. 86 at 12 (provision regarding redacted
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`filings of papers with protected material).
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`On the other hand, Allergan points out a real risk of disclosure: the FDA has issued new
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`bioequivalence standards, and Allergan’s documents could provide a basis for FCL to revise its
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`ANDA for FDA approval. FCL states that any amendments it makes to its ANDA would not
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`“escape notice,” and that the injury scenario is “wild speculation.” Dkt. No. 279, at 5.
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`As to any ANDA amendments, Allergan is not arguing about its ability to detect
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`disclosure; it is arguing that the protective order is intended to prevent it. As for Allergan’s
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`injury scenario, FCL’s (and LPI’s) own behavior indicates that this is a real concern. FCL, like
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`all of the other defendants, has agreed not to share any Confidential information with another
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`defendant without express written consent. See Dkt. No. 86, at 7. Meanwhile, LPI has recently
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`stated in a different action that disclosure to in-house individuals (attorneys or otherwise) poses a
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`danger of inadvertent disclosure in this context. LPI Letter Br., Shire Pharm. Dev. Inc. v. Lupin
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`Ltd., No. 1:16-cv-612, Dkt. No. 38 at 1-2 (D. Md. Jan. 17, 2016) (Lupin objected to designating
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`its ANDA as “confidential” instead of “highly confidential” because the former designation
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`would allow it to be seen by in-house designees and “creates an unacceptable risk of inadvertent
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`use or disclosure of information causing Lupin significant competitive harm.”).
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`Because Allergan has shown a need for protection and FCL has not shown a need for
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`modification of the existing protective order, this factor, like each of the others, cuts against
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`FCL.
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`For the reasons stated, the Court DENIES FCL’s motion to amend the existing protective
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`order. However, the Court accepts Allergan’s compromise approach as a basis for an agreed-
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`upon modification to the protective order. If the parties agree upon the modifications proposed
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`by Allergan, they may submit a new version of the protective order, modified as proposed by
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`Allergan, for the Court’s endorsement.
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`III. FCL Has Provided No Justification for or Right to an In-Person Hearing
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`FCL also moves for an in-court hearing on its motion to amend, but has provided no
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`reason for the Court to believe that an in-person hearing is needed. FCL’s motion merely states
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`that “FCL—and particularly Lupin—are frequent defendants in Hatch-Waxman cases throughout
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`the United States, and are greatly concerned with the potential implications of the outcome of the
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`Motion.” Dkt. No. 283, at 2. Parties are often concerned with the outcome of particular
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`motions, but the degree of a party’s concern is not a reason to hold a hearing. Particularly for
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`motions such as this one, where there are no live witnesses and no additional evidence for the
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`Court to hear beyond what has been submitted, a hearing is often unnecessary. The Local Rules
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`of this district provide that “the allowance of an oral hearing shall be within the sole discretion of
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`the judge to whom the motion is assigned.” Local Rule CV-7(g). For the following reasons, the
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`Court in this case exercises its discretion not to order an oral hearing on FCL’s motion to modify
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`the protective order.
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`Holding an in-court hearing on the issue raised by FCL would place scheduling burdens
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`on the attorneys forced to attend and would impose unnecessary costs on both sides. FCL states
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`that it is willing to bear the costs, but Allergan, in opposing the motion, indicates that it is not.
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`Furthermore, FCL “anticipates that, at most, such a hearing would require no more than an hour
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`of the Court’s time.” Dkt. No. 283, at 2. The Court will not order an unwilling party to pay
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`travel costs and for attorney preparation and in-court time for such a short hearing, with no
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`witnesses, and in which full briefing has alrea