Case 3:19-md-02913-WHO Document 1177 Filed 12/09/20 Page 1 of 11
`
`December 9, 2020
`
`The Honorable Jacqueline Scott Corley
`United States District Court for the
`Northern District of California
`450 Golden Gate Avenue
`San Francisco, CA 94102
`
`Re:
`
`In re Juul Labs, Inc., Mktg., Sales Prac. & Prods. Liab. Litig., 19-md-02913
`
`Dear Judge Corley,
`
`Pursuant to Case Management Order No. 6 (ECF No. 357), Plaintiffs’ Co-Lead Counsel
`(“Plaintiffs”) and counsel for Defendant Juul Labs, Inc. (“JLI”) respectfully submit this Joint Letter
`Brief regarding public records requests served by JLI on school districts who are plaintiffs in this
`MDL.
`
`Plaintiffs’ Position
`
`This Court should not allow Defendants to circumvent this Court’s Order regarding the
`information that School Districts are required to gather at this stage. This Court considered the
`information sought by Defendants’ proposed PFSs to be too burdensome on the schools. For
`instance, in its Order on PFSs, this Court wrote that “[m]uch of the information Defendants seek
`is inappropriate for inclusion in a fact sheet.” (Order, Dkt. No. 1038, at p. 1). Yet, Defendants are
`now using non-judicial processes to demand information that exceeds the scope of the information
`that this Court deemed to be too burdensome. This Court should quash all of these improper
`records requests or, alternatively, should require the counsel who sent them to withdraw them.
`
`I.
`
`Background
`
`The parties and this Court engaged in a lengthy process in determining the allowable scope
`of the PFSs. The parties conferred and then submitted competing proposals before a hearing on
`September 1. The parties continued conferring and submitted revised proposals before a second
`hearing on October 7. The Court then issued its ruling, holding that the Plaintiffs’ proposed PFSs
`should serve as the baseline for the PFSs. (Order, Dkt. No. 1038, at p. 1).
`
`Undeterred by the Court’s ruling, the Defendants are now demanding information that this
`Court deemed overly burdensome through sharply worded open records requests that have been
`served on the majority of the School District Plaintiffs.1 These requests, sent by Defendants’
`
`1 Most of these requests were served on November 24, on the eve of the Thanksgiving holiday weekend, though
`Defendants agreed to a short extension, so that they would be deemed to have been served on the following Monday.
`Even with this short extension, many of the requests demand responses in a short time frame, such as three or five
`business days. (See, e.g., Three Village Letter at 1 (five days); Letter to Blue Valley (Kan.) School District, attached
`as Exhibit C, at p. 1 (three days); Letter to Ava R-1 (Mo.) School District, attached as Exhibit D, at p. 1 (three days).
`Plaintiffs expect that Defendants will serve these requests on all School District Plaintiffs. And, as discussed below,
`some of the requests do not even comply with the applicable state laws.
`
`

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`Case 3:19-md-02913-WHO Document 1177 Filed 12/09/20 Page 2 of 11
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`Hon. Jacqueline Scott Corley
`December 9, 2020
`Page 2
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`counsel, all have similar language. Using the request sent to Three Village School District in New
`York as an example, Defendants urge that “[t]ime is of the essence in this request for public
`records.” (Letter to Three Village School District (“Three Village Letter”), attached as Exhibit A,
`at p. 1). The letter also provides contact information for Defendants’ counsel so they can “discuss
`why the public interest requires prompt compliance with this request.” (Id.).
`
`The request then lists 22 paragraphs of information sought, each of which is burdensome
`on its own. For instance, at the October hearing, this Court stated: “I don’t think it would be
`reasonable to expect [school districts] to go through the school, pull each file and compile … the
`number of suspensions that were there.” (10/7/20 Hearing Tr. at 9:23-10:1). Yet, the records
`requests seek information on all suspensions related not only to e-cigarettes, but also those related
`to combustible cigarettes, alcohol, illegal drugs, and cannabis. (Three Village Letter at ¶ 13).
`
`Isolating only the first four requests, they clearly exceed what this Court has permitted, and
`also exceed the information sought in Defendants’ rejected October proposal. For instance,
`Paragraph 1 seeks names of several district officials, such as principals, vice principals, counselors,
`nurses, and building services officials. (Id. at ¶ 1). None of that information was even in the
`Defendants’ October proposed PFS, which sought only the names of superintendents and their
`assistants. (Def. Proposed PFS, 10/5/20, Dkt. No. 1016-1, at ¶ 16). This request mirrors question
`23 in Defendants’ first proposed PFS, submitted to this Court in August for informal guidance.
`(Def. Proposed PFS, attached as Exhibit B, at ¶ 23). At the September 1, 2020 hearing, this Court
`stated that Defendants’ initial PFS was “[w]ay too detailed” and “would take days and days and
`hours and hours, which school personnel don’t have.” (9/1/20 Hearing Tr. at 42:14-16). The Court
`mentioned this question about names of school officers in particular, saying, “who’s the vice
`principal? I don’t know about that. What they need to know [is], who’s the main person who’s
`going to be knowledgeable. That’s it.” (Id. at 43:17-19).
`
`Paragraph 2 then seeks “[a]ll documents concerning any research, investigation, studies,
`reports, evaluations, or analyses” related to e-cigarette products or manufacturers, “ENDS
`generally,” vaping generally, tobacco products, illegal drug use, alcohol use, and/or cannabis use.
`(Three Village Letter at ¶ 2). Nothing similar appears in the Plaintiffs’ proposed PFS, so the Court
`did not authorize any inquiry on this topic. The Defendants’ proposed PFS asked only for studies
`related to vaping or e-cigarette use. (Dkt. No. 1016-1 at ¶ 1 of Document Requests). Thus,
`Defendants’ request again goes beyond the information this Court allowed Defendants to seek,
`and even beyond the Defendants’ submission in October, which this Court rejected as overbroad.
`
`The next two paragraphs follow the same pattern, requesting information that goes far
`beyond vaping and e-cigarettes. Paragraph 3 seeks information about all expenditures related to
`e-cigarettes, tobacco products, alcohol, illegal drug use, and cannabis. (Three Village Letter at ¶
`3). Again, the Plaintiffs’ proposed PFS has no comparable request, and the Defendants’ proposed
`PFS was limited to vaping or e-cigarettes. (Def. Proposed PFS at ¶ 25). Paragraph 4 seeks
`documents related to donations or funding related to e-cigarettes, tobacco, alcohol, illegal drug
`use, or cannabis. (Three Village Letter at ¶ 4). The information sought on this topic was limited
`to vaping and e-cigarettes, in both the Plaintiffs’ and the Defendants’ proposed PFS. (See Def.
`
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`Case 3:19-md-02913-WHO Document 1177 Filed 12/09/20 Page 3 of 11
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`Hon. Jacqueline Scott Corley
`December 9, 2020
`Page 3
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`Proposed PFS at ¶ 27). This pattern continued throughout these request letters, with Defendants
`seeking information about alcohol, drugs, and other issues going well beyond vaping and e-
`cigarettes. (See id. at ¶¶ 9, 12-13, 15-16).
`
`More generally, this pattern continued throughout the requests, in that the Defendants
`consistently request more information than this Court authorized, and even more information than
`Defendants requested in October, when this Court held their proposed fact sheets to be overbroad.
`(See generally Three Village Letter).
`
`II.
`
`Argument
`
`This Court should uphold the integrity of its prior Order by preventing the Defendants’
`attempt to flout that Order. This Court should either quash all of these public records requests as
`violating this Court’s prior Order, or it should order counsel for Defendants to withdraw these
`improper, unnecessary, and extraordinarily burdensome open records requests.
`
`1. Jurisdiction
`
`This Court should first conclude that it has the authority to issue the requested order.
`Defendants argue that this matter is beyond the purview of the Court, but case law and logic say
`otherwise. All federal courts possess “inherent powers,” which include the right “to manage their
`own affairs so as to achieve the orderly and expeditious disposition of cases.” Goodyear Tire &
`Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017). These open records requests contradict the
`clearly stated will of this Court, in exceeding this Court’s order as to the information that the
`School District Plaintiffs must gather. (Order, Dkt. No. 1038). By quashing these improper
`records requests, the Court would ensure the “orderly and expeditious disposition” of this case.
`
`Several federal courts have prevented or limited litigants’ public records requests. For
`instance, the District of Colorado held that it had the right to prohibit open records requests to any
`party in the litigation. Citizen Ctr. v. Gessler, 2012 U.S. Dist. LEXIS 98066, at *12-13 (D. Colo.
`July 16, 2012). The court wrote that it was prohibiting the plaintiffs “from using CORA as a means
`to circumvent this court’s Scheduling Order … and to abuse the discovery process to obtain
`discovery in excess of the limitations set by this court … .” Id. at *6-7. Several other cases have
`reached similar conclusions. See, e.g., CFGenome, LLC v. Streck, Inc., No. 4:16CV3130, 2019
`WL 3969178, at *12–13 (D. Neb. Aug. 22, 2019) (improper to issue public records request when
`discovery was stayed); Gibson v. Indiana State Pers. Dep’t, No. 117CV01212JPHTAB, 2019 WL
`2411330, at *2 (S.D. Ind. June 7, 2019) (enforcing agreement not to use open records requests “to
`circumvent discovery and the related deadlines”); Lowe v. New Mexico ex rel. King, No. CV 10-
`315 JH/LFG, 2011 WL 13284675, at *3 (D.N.M. Oct. 3, 2011) (attorney who issued public records
`request during stay of discovery breached duties to the court and counsel by seeking “identical
`information which had been denied him at the Court’s front door by a back door artifice”).
`
`In the MDL context, the opioid court adjudicated a dispute over allegedly confidential
`information produced to local government plaintiffs. Media organizations filed open records
`
`

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`Case 3:19-md-02913-WHO Document 1177 Filed 12/09/20 Page 4 of 11
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`Hon. Jacqueline Scott Corley
`December 9, 2020
`Page 4
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`requests in multiple states to try to obtain the information. In re Nat’l Prescription Opiate Litig.,
`325 F. Supp. 3d 833, 834–35 (N.D. Ohio 2018), vacated and remanded, 927 F.3d 919 (6th Cir.
`2019). The trial court and Sixth Circuit disagreed on the merits of balancing the public and private
`interests. Id. at 839-40; In re Opiate Litig., 927 F.3d at 937-38. But both courts adjudicated the
`dispute, thereby concluding that they had jurisdiction to do so. See United States v. Ceja-Prado,
`333 F.3d 1046, 1047 (9th Cir. 2003) (noting that “every federal court has a continuing obligation to
`ensure that it possesses subject-matter jurisdiction”).
`
`Alternatively, this Court at least has jurisdiction over the attorneys before it. As the U.S.
`Supreme Court has written, “a district court has both the duty and the broad authority to exercise
`control over a class action and to enter appropriate orders governing the conduct of counsel and
`the parties.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989). The same logic
`applies to an MDL. And, even outside of the mass action context, a New York judge recently
`exercised authority over counsel in adjudicating a dispute over open records requests. She wrote,
`in pertinent part: “Plaintiff’s counsel is to take NO STEPS, whether under or outside the Federal
`Rules of Civil Procedure, to obtain information to use in the presentation of this case.”2
`
`Briefly addressing Defendants’ arguments, Plaintiffs are not contending that federal courts
`have unlimited power to quash public records requests. Plaintiffs do contend that where a federal
`court has issued an order regarding the scope of discovery, the court may enforce that order, even
`if that enforcement happens to involve quashing public records requests. Plaintiffs have cited
`cases to that effect, so they are not asking this Court to do anything “unprecedented.”
`
`Defendants rely on distinguishable cases, as demonstrated by the two cases they initially
`highlight. In American Bank v. City of Menasha, 627 F.3d 261 (7th Cir. 2010), the appellate court
`commented that the district court’s stay was “a slap in federalism’s face” because a state court had
`already issued a mandamus order requiring that the records at issue be produced. Id. at 263-64.
`Quashing Defendants’ public records requests here would not contradict any existing state-court
`orders. In Mid-Atlantic Recycling Techs., Inc. v. City of Vineland, 222 F.R.D. 81 (D.N.J. 2004),
`the information sought through open-records requests was also available through discovery, so
`there was no conflict. Id. at 85. Here, requiring responses to these expansive requests would
`directly contradict this Court’s existing order on the scope of PFSs. (See Order, Dkt. No. 1038).
`
`Both sides have cited New Mexico cases, but a third case addressing the opposite results
`in Lowe and Noland is instructive. See Monarque v. City of Rio Rancho, No. CV 11-0135
`MV/KBM, 2011 WL 13285718, at *3–4 (D.N.M. May 20, 2011). The key issue as to whether the
`court has the power to act is whether the open records request contradicts an existing order of the
`court. See id. In Monarque, there was no such order in place. Id. at *4. But here, the Court has
`judicially determined the permissible scope of the inquiry to school districts. (Order, Dkt. No.
`
`2 Judge McMahon’s order is handwritten in J.T. v. de Blasio, No. 1:20-cv-5878 (CM) (S.D.N.Y Oct. 23, 2020). The
`Order is attached hereto as Exhibit E.
`
`

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`Case 3:19-md-02913-WHO Document 1177 Filed 12/09/20 Page 5 of 11
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`Hon. Jacqueline Scott Corley
`December 9, 2020
`Page 5
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`1038). Thus, the Court has the power to protect its existing Order by quashing the Defendants’
`open records requests. See Lowe, 2011 WL 13284675, at *3.
`
`Notably, Defendants have cited no case law indicating that this Court lacks jurisdiction
`over Defendants’ counsel. For these reasons, this Court has jurisdiction over both the subject
`matter and Defendants’ counsel, and can therefore take appropriate action.
`
`2. Merits
`
`Once this Court determines that it has authority to act, it should have little trouble
`concluding that it should quash the Defendants’ open records requests. These requests are a direct
`assault on this Court’s ability to control discovery. In ruling on the PFSs, the Court was
`appropriately concerned about placing too much burden on the schools. Yet, as laid out above,
`the open records requests require districts to dig for much more information than even the proposed
`PFSs that this Court rejected. Clearly, Defendants are flouting this Court’s Order and using what
`Lowe described as “a back door artifice” to cause hassle for the School District Plaintiffs.
`
`This back door/front door distinction is important, because if the Court permits this round
`of records requests, the Court will lose any control of the discovery process in this litigation. There
`will likely be more discovery disputes in the future, and if Defendants are permitted to use open
`records requests as an end run around any limitations set by this Court, then those limitations will
`have no practical effect. See Lowe, 2011 WL 13284675, at *3 (“In the context of ongoing federal
`litigation where specific discovery was denied a party due to a court-imposed stay, the use of an
`IPRA request to obtain the same information is improper.”).
`
`A related point is that only the Defendants would have this “back door artifice” available
`to them, if the Court allows this tactic. The Gessler court wrote that its ruling avoided giving one
`side an unfair advantage, as the defendants did not “have the parallel ability to submit CORA
`requests to Plaintiff.” Gessler, 2012 U.S. Dist. LEXIS 98066, at *7. The same logic applies here.
`This Court carefully weighed the benefits and burdens of the information being sought when it
`ruled on the scope of the PFS. (See Order, Dkt. No. 1038). Defendants will get limited information
`from all Plaintiffs, with the ability to obtain even more information from the selected bellwethers.
`Defendants should not be permitted to use public records requests to circumvent this Court’s
`process and dramatically increase the burden on all non-bellwether Plaintiffs.
`
`Defendants may argue that these requests present state-law issues that should be resolved
`in state court. But that approach would subvert the very purpose of the MDL process. As the
`opioid court noted, “centralized discovery is a core purpose of the creation of this MDL.” In re
`Nat’l Prescription Opiate Litig., No. 1:17-MD-2804, 2020 WL 3166631, at *2 (N.D. Ohio June
`15, 2020); see also 28 U.S.C. § 1407 (stating that MDL proceedings “will be for the convenience
`of parties and witnesses and will promote the just and efficient conduct of such actions”).
`
`Here, that convenience will be lost if the parties are litigating open records requests all over
`the country. In at least two states where Defendants sent open records requests, only citizens of
`
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`Case 3:19-md-02913-WHO Document 1177 Filed 12/09/20 Page 6 of 11
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`Hon. Jacqueline Scott Corley
`December 9, 2020
`Page 6
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`the state may make those requests, and therefore Defendants did not even have standing to serve
`those requests. S.C. Code Ann. § 30-4-100(A); Ark. Code Ann. § 25-19-105(a)(1)(A). In
`California, there is a pending litigation exception to the requirement to produce records. Cal. Gov’t
`Code § 6254(b). The larger point is that allowing these records requests to proceed will lead to
`dozens of disputes, with school districts having a wide variety of production obligations. That
`result is contrary to the purpose of centralized discovery, which allows this Court to manage an
`orderly and fair process.
`
`For all of these reasons, this Court should quash the Defendants’ open records requests or
`order Defense counsel to rescind them. These requests threaten this Court’s authority to continue
`with an orderly discovery process, and they threaten the policy objectives that underlay this Court’s
`initial decision on the scope of the PFSs.
`
`JLI’s Position
`
`Plaintiffs’ request that this Court quash legitimate state statutory public records requests is
`unprecedented and unsupported. First, it is black-letter law that a court may not extinguish a
`party’s statutory rights to access public records simply because Plaintiffs have chosen to file
`lawsuits against it. “The case law uniformly refuses to define requests for access to federal or state
`public records under public records laws … as discovery demands, even when as in this case the
`request is made for the purpose of obtaining information to aid in a litigation and is worded much
`like a discovery demand.” Am. Bank v. City of Menasha, 627 F.3d 261, 265 (7th Cir. 2010). For
`that reason, federal and state “courts that have considered this issue have rejected the notion that
`the filing of a civil litigation halts a party’s access to documents under a public record access
`statute.” Mid-Atl. Recycling Techs., Inc. v. City of Vineland, 222 F.R.D. 81, 86 (D.N.J. 2004)
`(citing cases). Second, the suggestion that JLI’s exercise of the same statutory rights available to
`the public would provide an unfair litigation advantage is incorrect. The balance of information
`exchange overwhelmingly favors Plaintiffs here—who have received over a million documents
`from JLI, and who already have access to the same materials sought by JLI. The public record
`requests marginally level the playing field through legitimate state-law records requests that JLI
`in many circumstances will have to pay for. Third, although not required, counsel for JLI
`transparently apprised MDL Plaintiffs’ Lead Counsel that it would be serving the requests,
`solicited input from counsel on their preference for communications regarding the requests, and
`within hours agreed to requested accommodations to the timing of responses. Any criticisms about
`the timing of the requests are an unfair and meritless distraction from the straightforward legal
`issue before the Court. The Court should deny Plaintiffs’ request.
`
`I.
`
`The Court Should Neither Quash nor Order Withdrawal of Public Record Requests.
`
`A.
`
`The Court Does Not Have the “Inherent Authority” to Quash the Requests.
`
`Plaintiffs’ claim that the Court has authority to rewrite their state law obligations is
`incorrect. Nothing in principle or precedent supports the novel argument that the Court’s “inherent
`powers” authorize a federal court to “quash” valid public records requests under the laws of
`
`

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`Case 3:19-md-02913-WHO Document 1177 Filed 12/09/20 Page 7 of 11
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`Hon. Jacqueline Scott Corley
`December 9, 2020
`Page 7
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`numerous states. Indeed, Plaintiffs do not identify a single case where a federal court “quashed”
`a state public records requests—which Plaintiffs themselves describe as “non-judicial
`processes”—because there is none. To the contrary, “[t]he case law uniformly refuses to define
`requests for access to federal or state public records under public records laws … as discovery
`demands, even when as in this case the request is made for the purpose of obtaining information
`to aid in a litigation and is worded much like a discovery demand.” Am. Bank, 627 F.3d at 265.3
`Because a request for “public records pursuant to a state statute is not discovery,” an order
`prohibiting such requests is in fact “an injunction against enforcement of a state law,” not a
`discovery order. Id. Granting the request to quash would be an improper “discovery order that
`has the effect of preempting a state law,” which “is a slap in federalism’s face.” Id.; Mid-Atl.
`Recycling Techs., 222 F.R.D. at 85 (“The Court rejects defendants’ invitation to find that the
`general discovery rules under the Federal Rules of Civil Procedure preempt [the New Jersey Open
`Public Records Act]”).
`
`For that reason, federal courts consistently refrain from making state law determinations
`regarding the propriety of state law public records requests. See, e.g., Am. Bank, 627 F.3d at 265;
`Burke v. New Mexico, 2016 WL 11489335, at *1 (D.N.M. Aug. 5, 2016) (“Plaintiff may continue
`to pursue her [New Mexico Inspection of Public Records Act] requests while this lawsuit is
`pending.”); Crane v. City of Roy, 2008 WL 11508840, at *2 (W.D. Wash. May 13, 2008) (“This
`court will not decide matters of state law.... and this Order makes no decision on the propriety of
`the public records issue in state court.”); Stratienko v. Chattanooga-Hamilton Cty. Hosp. Auth.,
`2008 WL 2001990, at *3 (E.D. Tenn. May 7, 2008) (“[The underlying] litigation is not the proper
`avenue or venue for the determination of whether, or to what extent, [a government entity-party]
`should respond to the pending [state public record law] requests.”), aff’d, 402 F. App’x 990 (6th
`Cir. 2010); Mid-Atl. Recycling, 222 F.R.D. at 87 (“the Federal Rules of Civil Procedure do not act
`as an automatic bar of a litigant’s rights to obtain or seek documents under a public record access
`statute” when rejecting municipal defendants’ “arguments that Fed. R. Civ. P. 26 limits or restricts
`a party’s right to request documents under” New Jersey’s Open Public Records Act).
`
`“[T]he notion that the court should insulate governments from requests for information
`under normal processes otherwise available to the public whenever the governments engage in
`litigation is not appealing,” but that is precisely what Plaintiffs ask this Court to do. Republic of
`Colombia v. Diageo N. Am., Inc., 2007 WL 3274882, at *1 (E.D.N.Y. Nov. 5, 2007)
`
`Plaintiffs’ reliance on an opinion from the opioid MDL only confirms that the Court should
`deny Plaintiffs request. There, the district court ordered the DEA to produce its Automation of
`
`3 See also, e.g., Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 167–68 (3d Cir. 1993); Jackson v. First
`Fed. Sav. of Ark., 709 F. Supp. 887, 889 (E.D. Ark. 1989); Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth.,
`249 S.W.3d 346, 361 & n. 24 (Tenn. 2008); Bolm v. Custodian of Records of Tucson Police Dep’t, 969 P.2d 200, 204–
`05 (Ariz. Ct. App. 1998); Kentner v. Ind. Pub. Employers’ Plan, Inc., 852 N.E.2d 565, 575 (Ind. Ct. App. 2006); Ky.
`Lottery Corp. v. Stewart, 41 S.W.3d 860, 863–64 (Ky. Ct. App. 2001); Taylor v. Lansing Bd. of Water & Light, 725
`N.W.2d 84, 87–88 (Mich. App. 2006); N.J. Builders Ass’n v. N.J. Council on Affordable Hous., 915 A.2d 23, 32 (N.J.
`Super. App. Div. 2007); M. Farbman & Sons, Inc. v. N.Y. City Health & Hosps. Corp., 464 N.E.2d 437, 438–39 (N.Y.
`1984); Cavey v. Walrath, 598 N.W.2d 240, 243 n. 4 (Wis. Ct. App. 1999)).
`
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`Case 3:19-md-02913-WHO Document 1177 Filed 12/09/20 Page 8 of 11
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`Hon. Jacqueline Scott Corley
`December 9, 2020
`Page 8
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`Reports and Consolidated Orders System (“ARCOS”) data to the county-government plaintiffs.
`See In re Nat'l Prescription Opiate Litig., 927 F.3d 919, 926 (6th Cir. 2019). Because the
`production of data to the county government-plaintiffs would make it potentially obtainable under
`state public records act requests, the court’s protective order gave them authority to reject those
`requests. See id. at 926-27. The Sixth Circuit reversed that aspect of the district court’s decision,
`“hold[ing] that the district court abused its discretion in finding ‘good cause’ not to permit
`disclosure of the ARCOS data pursuant to state public records requests.” Id. at 938. The Sixth
`Circuit explained that federal courts cannot “enter a blanket, wholesale ban on disclosure pursuant
`to state public records requests,” id., and ultimately concluded that “there is no reason for this
`Court or any other federal court (rather than the courts of Ohio and West Virginia) to decide the
`scope of those state laws,” id. at 938 n.13. The same is true here.
`
`Plaintiffs’ other cited cases are not to the contrary. CFGenome, for example, concerned a
`subpoena requesting communications about a public records request, which the court found
`irrelevant. 2019 WL 3969178, at *12–13 (D. Neb. Aug. 22, 2019). The handwritten order in J.T.
`v. de Blasio, No. 1:20-cv-5878 (S.D.N.Y Oct. 23, 2020), admonished counsel for demanding
`school districts voluntarily turn over Medicaid-related documents if they wanted to be “remove[d]
`… as a defendant in th[e] class action” counsel was pursuing. See Ex. 1 (emails attached to letter
`that prompted the court’s handwritten order). Citizen Ctr. v. Gessler, 2012 U.S. Dist. LEXIS
`98066, at *6 (D. Colo. July 16, 2012) and Gibson v. Indiana State Pers. Dep’t, 2019 WL 2411330,
`at *2 (S.D. Ind. June 7, 2019) are outlier cases where plaintiffs had sought to amend case
`management orders that specifically limited public records requests. Finally, in Lowe v. New
`Mexico, 2011 WL 13284675, at *3-4 (D.N.M. Oct. 3, 2011), the public records request violated
`the terms of a court-ordered stay. Not so here, and even in that case, the court refused to preclude
`enforcement of the public records request in state court because doing so would “diminish respect
`for a state court.” Id. Moreover, these outlier cases all addressed the plaintiffs’ records requests.
`Plaintiffs identify no case where a court sanctioned a government entity’s decision to file suit as
`basis to quash public records requests by defendants to those suits.
`
`B.
`
`The Public Entity School Districts Are Not Insulated From Public Records
`Requests Because They Have Chosen To Be Plaintiffs in a Lawsuit.
`
`If this Court nonetheless decides to take the unprecedented step of reviewing whether JLI’s
`requests were proper, it should do so by applying the relevant state law. Plaintiffs’ decision to sue
`JLI does not change their state-law obligation to respond to valid records requests. States almost
`uniformly hold that “[o]ne’s status as a litigant neither diminishes nor enhances the right to public
`information” under state public record laws. Konvalinka v. Chattanooga-Hamilton Cty. Hosp.
`Auth., 249 S.W.3d 346, 361 n. 24 (Tenn. 2008).4 “That the public records [the party] seeks are
`
`4 See also, e.g., City of Allentown v. Brenan, 52 A.3d 451, 455 (Pa. Commw. Ct. 2012) (“discovery rules do not
`preclude a party to litigation from utilizing the [Pennsylvania’s Right to Know Law] to obtain access to a ‘public
`record’”); Fairley v. Superior Court, 78 Cal. Rptr. 2d 648, 652 (Cal. App. 4th 1998); M. Farbman & Sons, 464 N.E.2d
`at 438; Bolm, 969 P.2d at 204; Noland v. City of Albuquerque, 2009 WL 5217998, at *3 (D.N.M. Oct. 27, 2009); Ky.
`Lottery Corp., 41 S.W.3d at 864; Cavey, 598 N.W.2d at 243 n.4.
`
`

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`Case 3:19-md-02913-WHO Document 1177 Filed 12/09/20 Page 9 of 11
`
`Hon. Jacqueline Scott Corley
`December 9, 2020
`Page 9
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`potentially useful to him in a lawsuit is fortuitous, not illegal.” Gilbert v. Summit Cty., 821 N.E.2d
`564, 567 (Ohio 2004). Similarly, California state appellate courts recognize that, “[e]ven after a
`party suffers an unfavorable civil discovery ruling with regard to public documents, that same
`party may request an inspection of the same public documents under [the California Public
`Records Act] and institute proceedings to enforce inspection rights under [the statute].” See Martin
`v. Cty. of Orange, 2009 WL 3110834, at *2 (Cal. Ct. App. Sept. 28, 2009) (citing Cty. of Los
`Angeles v. Superior Court (Axelrad), 98 Cal. Rptr. 2d 564, 569 (Cal. App. 4th 2000)).
`
`Allowing even adverse litigants to seek public records furthers the underlying purpose
`behind state public record laws: those laws are “based on the ‘fundamental policy of promoting
`open government, not restricting it,’” Gilbert, 821 N.E.2d at 566, and “[t]he public has a right to
`know about public business, even when the disclosure might benefit an adverse litigant. Under
`the [these laws], the media, as well as adverse litigants, are members of the public and are entitled
`to publicly funded information.” City of Fayetteville v. Edmark, 801 S.W.2d 275, 281 (Ark. 1990).
`
`Plaintiffs’ arguments to the contrary are misplaced. Plaintiffs contend “there is a pending
`litigation exception to the requirement to produce records” in California. But “[a] document is
`protected from disclosure under the pending litigation exemption only if the document was
`specifically prepared for use in litigation.” Axelrad, 98 Cal. Rptr. 2d at 569 (emphasis added).
`Plaintiffs also claim the “larger point” is that different states have different public record
`requirements.5 But that is why state authorities should resolve any disputes, not a reason for this
`Court to supplant state authority. See In re Nat'l Prescription Opiate Litig, 927 F.3d at 938 n.13.
`
`II.
`
`Plaintiffs’ Concerns About Unfair Litigation Advantage and Burden Are Misplaced.
`
`Plaintiffs also are wrong that public records requests would circumvent this Court’s PFS
`order, provide an unfair advantage to JLI, and impose an undue burden. First, public records
`requests are not the equivalent of plaintiff fact sheets. The Court tailored the fact sheets to provide
`information the Court deemed necessary to engage in bellwether selection, inform settlement
`negotiations, and screen cases. ECF No. 1038. Public record laws further different but no less
`important state policy objectives, and “public records requests are not the same as discovery.”
`
`5 Vermont recognizes a public records exception for documents related to litigation in which the government entity is
`a party. JLI therefore has not submitted public records requests to Vermont Plaintiffs. Plaintiffs’ contention that JLI
`may not issue records requests Arkansas and South Carolina is incorrect. South Carolina law provides that any “person
`has a right to inspect, copy, or receive an electronic transmission of any public record of a public body.” S.C. Code
`Ann. § 30-4-30 (emphasis added). And the Arkansas Supreme Court has repeatedly confirmed that “the Act clearly
`provides that anyone who requests information is entitled to it,” as “the words ‘citizen,’ ‘public,’ ‘person,’ and
`‘anyone,’ are all used to describe the party empowered to invoke the Act for