HASELTON, C.J.
Plaintiff Pfizer Inc. (Pfizer
As amplified below, we conclude that the confidentiality agreements obligate DOJ to withhold the Pfizer-produced exhibits to the extent that they are exempt from disclosure under the OPRL. Proceeding from that premise, we further conclude as follows: One, the trial court erred in denying Pfizer's motion for summary judgment and in granting DOJ's cross-motion as to Exhibits 1-4, 7-9, 11, 13-16, 18-19, 21-40, 44-73, 75-94, 96-101, and 103. As to those documents, Pfizer was entitled to summary judgment because the declaration of its director, Gibney, established, without contradiction, that, as a matter of law, those exhibits are exempt as trade secrets pursuant to ORS 192.502(9)(a) of the OPRL in that their disclosure is "prohibited or restricted or otherwise made confidential or privileged under Oregon law," viz., the Uniform Trade Secrets Act, ORS 646.461 to 646.475. And two, to the extent that the annotated complaint discloses information contained in those exhibits, it too is concomitantly exempt from disclosure. As to the remaining exhibits — viz., Exhibits 10, 12, 17, 20, 41-43, 74, 95, 102, and 104-109 — we conclude that the trial court properly denied Pfizer's motion for summary judgment and granted DOJ's cross-motion because the "confidential submissions" exemption of the OPRL, ORS 192.502(4), is inapplicable as a matter of law. Finally, we conclude that, because DOJ is not contractually obligated to
To provide context, we begin with a general overview of the undisputed procedural facts. To the extent that resolution of issues on appeal requires that we augment those facts, we do so in the context of addressing the parties' particular contentions.
In 2003, DOJ led a multistate investigation to determine whether Pfizer Inc. and Pharmacia Corporation (Pharmacia), another drug company that Pfizer Inc. acquired in April of that year, were marketing the medications Bextra and Celebrex in violation of consumer protection laws, including Oregon's Unlawful Trade Practices Act (UTPA), ORS 646.605 to 646.652. One aspect of that investigation concerned whether Pfizer was marketing Bextra for off-label uses — that is, uses that had not been approved by the Food and Drug Administration.
Initially, DOJ did not issue an investigative demand for the exhibits at issue on appeal.
In November 2004, David Hart, the Oregon Senior Assistant Attorney General who led the investigation, notified Pfizer that the issuance of an investigative demand would occur "shortly," and he provided Pfizer with an unsigned copy of the demand that DOJ intended to issue. However, after Pfizer agreed to enter settlement negotiations and produce the requested documentation, DOJ agreed not to formally issue the investigative demand.
Then, in January 2005, the 2003 confidentiality agreement was amended to refer to Pfizer in addition to Pharmacia, but the substance of the agreement remained the same.
With regard to disclosures to third parties, the agreements provided:
(Emphasis added.) Further, the agreements provided that, if a state received a third-party request, it would "notify Pfizer * * * of the [request] as soon as is reasonably possible so that Pfizer * * * may seek a protective order" and would, generally, "provide Pfizer * * * with at least ten (10) business days' advance notice before complying with any Third Party Request for documents or material designated or marked as containing `Confidential' information[.]"
The agreements did not prohibit the Attorneys General from using the produced information in litigation against Pfizer. However, they did require that the produced documents and materials be kept confidential so that Pfizer could attempt to obtain a protective order. For example, the agreements state:
Finally, the agreements provided that DOJ's obligations survive the conclusion of the investigation. Specifically, the agreements provide:
Pursuant to those confidentiality agreements, Pfizer produced, among other documents, the vast majority of the exhibits that are at issue here.
Ultimately, on October 22, 2008, DOJ filed a complaint against Pfizer, alleging that, despite significant safety concerns, Pfizer had used a variety of practices to market and promote Bextra for the off-label uses of treating acute and surgical pain in violation of the UTPA.
On the same day that the complaint was filed, the trial court accepted the parties' stipulated general judgment, which was "made without trial or adjudication of any issue of fact or law or finding of liability of any kind." According to the terms of the judgment, Pfizer agreed to pay $60 million and to abide by injunctive terms that prohibited and required particular prospective conduct addressing the concerns raised during the investigation (e.g., "Pfizer shall not make any written or oral claim that is false, misleading or deceptive regarding any FDA-approved Pfizer Product."). However, the stipulated judgment also provided:
(Emphasis added.)
A few days after the stipulated judgment was accepted and DOJ issued a press release
Consistently with the confidentiality agreements, DOJ informed Pfizer that the public records request had been made. Thereafter, Pfizer initiated this action for declaratory and injunctive relief, contending that the release of the annotated complaint and the supporting exhibits (with DOJ's proposed redactions) would be in violation of the confidentiality agreements because the annotated complaint and related exhibits (even as redacted by DOJ) were exempt from disclosure under the OPRL.
The parties filed cross-motions for summary judgment. Their competing contentions essentially centered on two overarching issues: First, do the confidentiality agreements obligate DOJ to withhold the annotated complaint and the exhibits to the extent that they are exempt from disclosure under the OPRL? And second, if they do, are the exhibits and annotated complaint exempt under the OPRL either as "trade secrets," "confidential submissions," or "attorney work product" as a matter of law.
The second of those questions implicated, in turn, four subsidiary questions concerning the applicability of particular exemptions under the OPRL to the exhibits and annotated complaint:
In moving for summary judgment, Pfizer submitted the declaration of its director, Gibney. In that declaration, Gibney explained the reasons that the exhibits qualified as trade secrets. DOJ, however, proffered no evidentiary submissions controverting the Gibney declaration.
Ultimately, the trial court concluded that, although the confidentiality agreements obligated DOJ to withhold the exhibits that are exempt from disclosure under the OPRL, the vast majority of the exhibits are not exempt. In detailed letter opinions, the court began by adopting the premise of Pfizer's position, that is, that "DOJ, in entering the Confidentiality Agreements, obliged itself to keep the
(Emphasis in original.)
In sum, the court concluded that, if the exhibits are not exempt from disclosure under the OPRL, DOJ is obligated to disclose them. Conversely, however, the court concluded that, if any exhibits are exempt under the OPRL, DOJ is obliged not to disclose them. Accordingly, the court's analysis turned to whether the exhibits and annotated complaint are exempt from disclosure under the OPRL.
The court concluded that the exhibits are not exempt under the OPRL as "trade secrets," relying on the two relevant statutory definitions of that term.
As to the "confidential submissions" exemption, the trial court noted that (1) "the information and documents produced by Pfizer, including strategic documents, internal emails, call notes, and other internal documents, were `of a nature which reasonably should be confidential'"; (2) "DOJ has obliged itself in good faith, not to disclose such documents"; and (3) "Pfizer submitted such information to the DOJ in confidence, as evidenced by the Confidentiality Agreements." Nevertheless, the court concluded that the "confidential submissions" exemption in ORS 192.502(4) is inapplicable for either of two independently sufficient reasons. First, the court determined that Pfizer's submissions did not satisfy the statutory requirement that, to qualify as an exempt "confidential submission," the information must "not otherwise [have been] required by law to be submitted." ORS 192.502(4). Rather, in the court's view, Pfizer's submissions were "required by law." That was so, the court reasoned, because "the informal [investigative demand], as well as the settlement negotiations, * * * coerced Pfizer into handing over the [exhibits]" and, for that reason, "Pfizer did not voluntarily provide the DOJ with the [exhibits]."
As a further, and alternative, basis for deeming the "confidential submissions" exemption inapposite, the court determined that, contrary to the statutory requisite that "the public interest * * * suffer by the disclosure," ORS 192.502(4), disclosure of the exhibits would not harm the public. In that regard, the court reasoned:
Having concluded that the "confidential submissions" exemption is inapplicable and that the exhibits are not exempt as "trade secrets," the court turned its attention to the annotated complaint. In particular, the court determined that the annotated complaint is not exempt as a trade secret because (1) "[t]he general content of the information ha[d] already been published and [was] widely available to the public"; (2) "[t]he footnotes cite or quote material that is published, or that the court has found not to be exempt under the trade secret exemption"; and (3) the complaint was prepared by DOJ for its use in the Pfizer litigation.
Finally, the trial court rejected Pfizer's contention that the annotated complaint and the compilation of exhibits are exempt from disclosure as "attorney work product" under ORS 192.502(9)(a), which incorporates the restriction concerning the discovery of "attorney work product" in ORCP 36 B(3). The court noted that ORCP 36B(3) provides, in part, that "the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Nevertheless, the court reasoned that
(Emphasis in original.)
For all of those reasons, the trial court denied Pfizer's motion for summary judgment and allowed DOJ's cross-motion.
First, relying on AFSCME v. DAS, 150 Or.App. 87, 945 P.2d 102 (1997), DOJ moved to dismiss the action, contending that the trial court lacked jurisdiction because the three individuals who had made the public records requests were necessary parties who had not been joined.
Second, DOJ moved to supplement the summary judgment record with "newly discovered evidence" — viz., five documents obtained from the website of the United States Attorney's Office for the District of Massachusetts. In general terms, those documents demonstrated that, in 2009, the federal government, Pfizer Inc., and one of Pfizer Inc.'s subsidiaries, Pharmacia & Upjohn Company, Inc., had resolved criminal and civil claims arising from, among other things, the marketing of Bextra. Because those five documents pertain to, and provide context for, certain of the parties' arguments on appeal, we summarize their content at this point:
The trial court granted DOJ's motion to supplement the record.
Ultimately, the trial court entered a general judgment declaring, as pertinent, that "[t]he Annotated Complaint prepared by the DOJ, and [Pfizer's] Exhibit[s] 1 to 4 and 7 to 109 are not exempt from disclosure under the Confidentiality Agreements between the parties or under ORS 192.501(2), 192.502(4), or 192.502(9) of the [OPRL]." Pfizer appeals.
On appeal, Pfizer assigns error both to the trial court's denial of its summary judgment motion and to the allowance of DOJ's cross-motion. In Eden Gate, Inc. v. D & L Excavating & Trucking, Inc., 178 Or.App. 610, 622, 37 P.3d 233 (2002), we described the operative standard of review:
(Citations omitted.)
In support of their respective positions on appeal, the parties raise the same contentions that they raised in the trial court concerning (1) whether the confidentiality agreements obligate DOJ to withhold the annotated complaint and the exhibits to the extent that they are exempt from disclosure under the OPRL; and (2) if they do, whether, as a matter of law, the exhibits and
We conclude, as did the trial court, that the confidentiality agreements obligate DOJ to withhold the Pfizer-produced exhibits to the extent that they are exempt from disclosure under the OPRL. That conclusion necessarily follows from the text of the agreements. See Shogun's Gallery, Inc. v. Merrill, 229 Or.App. 137, 145, 210 P.3d 920 (2009) (in interpreting "a contractual provision, we first examine the text of the disputed provision in context; if the text is clear, the analysis ends there").
As noted above, 254 Or.App. at ___, 294 P.3d at 499, the agreements provide that "any documents or other written material marked or designated by Pfizer * * * as containing `Confidential' information, or summaries thereof, shall not be disclosed by [DOJ] to anyone other than" particular employees, consultants, and state and federal agencies under specified conditions. Significantly, although the agreements allow DOJ to disclose the Pfizer-produced documents or materials "pursuant to a subpoena or court order," the agreements specify that DOJ's obligations to withhold the materials that Pfizer produced "are further subject to the provisions of each State's * * * public record act."
In sum, the confidentiality agreements limit DOJ's ability to disclose the exhibits that Pfizer had produced. Except for certain individuals and entities, the agreements prohibit DOJ from disclosing those exhibits "to anyone" in the absence of a subpoena or court order. Nevertheless, that obligation is "further subject to" the OPRL. In other words, if the exhibits are not exempt from disclosure under the OPRL, DOJ is obligated to disclose them; however, if any exhibits are exempt under the OPRL, DOJ is obligated not to disclose them.
DOJ remonstrates, nevertheless, that such an understanding of the agreements is too broad and that it did not agree to apply exemptions in the OPRL other than those pertaining to trade secrets. That contention is predicated on DOJ's understanding that "the agreements expressly provide that the only documents that were to be designated as `confidential' by Pfizer were trade secrets." However, contrary to DOJ's understanding, the agreements provide that confidential documents are those that contained "proprietary or trade secret information." (Emphasis added.) That is, the agreements provide for protection of "proprietary" information beyond "trade secrets." Thus, DOJ's contention that the agreements obligate it to apply only the OPRL exemptions related to trade secrets is unavailing.
Having concluded that the confidentiality agreements obligate DOJ to withhold the Pfizer-produced exhibits to the extent that they are exempt from disclosure under the OPRL, we turn to the remaining overarching issue in this case. In particular, we must determine whether, as a matter of law, the exhibits and annotated complaint are exempt from disclosure under the OPRL.
Three principles inform our analysis of that issue. First, because the parties' contractual obligations in this case depend on the effect of incorporated statutes (e.g., the exemptions in the OPRL), we apply to those statutes, where necessary, the rules of statutory interpretation set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993), as amplified in State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009). See Lenon v. PERB, 228 Or.App. 20, 25, 206 P.3d 1165, rev. den., 347 Or. 365, 222 P.3d 1091 (2009) (so stating).
Second, although, ordinarily, it is the public body that "has the burden of sustaining an asserted exemption from disclosure" under the OPRL, In Defense of Animals v. OHSU, 199 Or.App. 160, 172, 112 P.3d 336 (2005), that construct is inapplicable in this case. Here, Pfizer is contending that the confidentiality agreements prohibit disclosure of the exhibits and annotated complaint because they are exempt from disclosure under the OPRL. Under such circumstances, Pfizer, which is resisting disclosure, has the
Third, as noted, Pfizer contends that the exhibits and annotated complaint are exempt under the OPRL as either "trade secrets," "confidential submissions," or "attorney work product" — or some permutation of those exemptions. In analyzing those issues, if we conclude that Pfizer is entitled to summary judgment because one of those exemptions applies to particular exhibits, "we need not consider the applicability of other exemptions" to those exhibits. Id. With those principles in mind, we turn to whether some or all of the exhibits are exempt from disclosure under the OPRL as trade secrets.
Pfizer's primary contention on appeal is that the exhibits are exempt as trade secrets under the OPRL. In support of that contention, Pfizer relies on ORS 192.502(9)(a), which exempts from disclosure under the OPRL "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law." According to Pfizer, "[d]isclosure of [its] trade secrets would constitute a `prohibited disclosure' under ORS 192.502(9)(a) because it would be a `misappropriation' of trade secrets, which is prohibited by the [Uniform Trade Secrets Act]."
As in the trial court, the parties' competing contentions on appeal concern whether the exhibits are trade secrets as defined in the Uniform Trade Secrets Act, specifically, ORS 646.461(4). That statute provides:
In Kaib's Roving R.PH. Agency, Inc. v. Smith, 237 Or.App. 96, 103, 239 P.3d 247 (2010), we explained that, "[t]o constitute a trade secret under ORS 646.461(4), information (including compilations) must both (1) gain value because it is not generally known and (2) be the subject of reasonable efforts to maintain that secrecy." We further noted that, generally,
Id. at 103, 239 P.3d 247.
Further, in contexts in which a party seeks to prohibit disclosure of information as a trade secret, we have held that "[t]he party must also establish good cause for the protective order by demonstrating that disclosure will work a clearly defined and serious injury. Broad allegations of harm unsubstantiated by specific examples or articulated reasoning do not satisfy the good cause requirement.
For its part, Pfizer contends that the exhibits are trade secrets as a matter of law. In support of that contention, Pfizer relies on the declaration of a Pfizer director, Gibney, explaining that (1) Pfizer invested substantial time and money in creating the exhibits; (2) Pfizer derives economic value from the fact that the information in the exhibits is not generally known and has taken efforts to maintain its confidentiality; and (3) disclosure would allow Pfizer's competitors to have access to the information and to benefit from Pfizer's substantial investments in developing it.
Further, in separate paragraphs, the declaration identifies categories of exhibits (e.g., executive management committee meeting agendas and presentations, strategic operating plan, and study protocols and final study reports). Significantly, with regard to the exhibits in each category, Gibney explains in greater detail the type of information contained in the exhibits and the reasons that it qualifies for trade secret protection.
Invoking the Gibney declaration and relying on ORCP 47 D,
(Citations omitted.)
In response, DOJ contends that Pfizer's reliance on the Gibney declaration is misplaced for three reasons. We address each of those contentions in turn.
First, DOJ contends that "uncontroverted or not, the statements in the [Gibney declaration] did not necessarily establish that the materials are trade secrets." In other words, DOJ contends that the declaration simply did not demonstrate that the exhibits qualified as "trade secrets" under the legal definition of that term.
However, as we explained in Kaib's Roving R.PH. Agency, Inc., information constitutes a trade secret for purposes of ORS 646.461(4) if it "(1) gain[s] value because it is not generally known and (2) [is] the subject of reasonable efforts to maintain that secrecy." 237 Or.App. at 103, 239 P.3d 247. Gibney's declaration in this case demonstrated both of those requirements. Further, as required by Citizens' Utility Board, Gibney adequately described the potential harm that would result from the release of the exhibits. Thus, the Gibney declaration was legally sufficient to establish the availability of the "trade secrets" exemption.
Second, DOJ contends that "Gibney's opinion was belied by the content of the [exhibits] themselves, in the context of the circumstances of the case." Having reviewed each of the exhibits (as redacted by DOJ) — and assuming that DOJ's unamplified use of "belie" embodies an assertion that the content of various (unspecified) exhibits is patently irreconcilable with the averments of the Gibney declaration — we reject DOJ's contention without further discussion.
DOJ's contention in that regard partakes of the following syllogism:
The success of that syllogism depends on the correctness of DOJ's predicate premise that the exhibits are nothing more than examples of conduct described in the publicly available documents to which it refers. For the following reasons, we conclude that that premise is incorrect as to the great majority of the exhibits.
Again, we have reviewed each exhibit at issue on appeal. With regard to Exhibits 17, 20, 41-43, 74, 95, 102, and 104-109, we agree with DOJ that the information therein is publicly available in the sources to which DOJ refers. For example, the core content of some of those exhibits was reproduced — sometimes verbatim — in the federal information. Given that circumstance, Exhibits 17, 20, 41-43, 74, 95, 102, and 104-109 contain nothing more than has been publicly disclosed.
That is not the case, however, with regard to the remainder of the exhibits. Even as redacted, those exhibits reveal more than generic examples of conduct. In other words, the specific, underlying details in those exhibits have not been revealed by the publicly available sources on which DOJ relies — and it is that underlying detail that Pfizer contends is a trade secret. Accordingly, as to Exhibits 1-4, 7-9, 11, 13-16, 18-19, 21-40, 44-73, 75-94, 96-101, and 103, we reject DOJ's contention that the "information had already been made public or that similar information was readily available."
Nevertheless, in a further attempt to demonstrate that the exhibits are not exempt under the OPRL as trade secrets, DOJ raises two additional contentions. First, DOJ essentially contends that the exhibits do not contain information that "gain[s] value because it is not generally known." Kaib's Roving R.PH. Agency, Inc., 237 Or.App. at
However, in the face of the Gibney declaration — which established the availability of the trade secrets exemption — DOJ failed to offer any factual submission in support of those bare assertions. For that reason, we reject them without further discussion.
Second, DOJ also contends that "[i]llegal conduct is not a trade secret." We understand that contention to be predicated on DOJ's understanding that "Pfizer agreed to plead guilty to the charges in the [federal] Information." Whatever the merits of DOJ's contention — an issue about which we express no opinion — its predicate understanding of the federal plea agreement is incorrect. As noted above, 254 Or.App. at ___, 294 P.3d at 500-01, Pharmacia & Upjohn Company, Inc., agreed to plead guilty to criminal conduct alleged in the federal information, and the side letter agreement states that the federal government "declines prosecution of Pfizer Inc or any of its subsidiaries (other than Pharmacia & Upjohn Company, Inc as set forth in the Information) for conduct by or attributable to Pfizer Inc or any of its subsidiaries that[,]" among other things, "falls within the scope of the Information to which Pharmacia & Upjohn Company, Inc., is pleading guilty."
Thus, as a matter of law, the trade secrets exemption applies to Exhibits 1-4, 7-9, 11, 13-16, 18-19, 21-40, 44-73, 75-94, 96-101, and 103. Accordingly, our inquiry reduces to whether Exhibits 17, 20, 41-43, 74, 95, 102, and 104-109 — which are not exempt from disclosure as trade secrets under ORS 192.502(9)(a) and the Uniform Trade Secrets Act because their core content has been publicly disclosed — are nevertheless exempt under some other provision of the OPRL.
ORS 192.502(4) exempts from disclosure
The trial court determined that the exemption is inapplicable both because Pfizer had been required by law to produce the exhibits and because the public interest would not suffer by the disclosure. On appeal, Pfizer contends that the court erred in both respects.
We need not address Pfizer's contentions in that regard because DOJ, as an alternative basis for affirmance, contends that the confidential submissions exemption is inapplicable
As previously explained, 254 Or.App. at ___, 294 P.3d at 508, Exhibits 17, 20, 41-43, 74, 95, 102, and 104-109 are not exempt as trade secrets because their core content has been publicly disclosed. Given the circumstances of this case-including Pfizer's acknowledgement that Exhibits 10 and 12, which had been posted on the New York Times' website, are no longer exempt under the confidential submissions exemption, 254 Or.App. at ___ n. 15, 294 P.3d at 508 n. 15, we conclude that, in addition to Exhibits 10 and 12, Exhibits 17, 20, 41-43, 74, 95, 102, and 104-109 are not exempt under the confidential submissions exemption as a matter of law.
Having considered whether the exhibits are exempt under the OPRL as "trade secrets" or "confidential submissions," we have ultimately concluded that, as a matter of law, Exhibits 1-4, 7-9, 11, 13-16, 18-19, 21-40, 44-73, 75-94, 96-101, and 103 are exempt from disclosure as trade secrets. Thus, to the extent that the annotated complaint discloses information contained in those exhibits, it too is exempt from disclosure. To hold otherwise would permit disclosure of exhibits exempt as trade secrets under the OPRL contrary to the parties' confidentiality agreements.
Finally, as did the trial court, we reject Pfizer's contention that the annotated complaint and the compilation of exhibits referred to therein are exempt from disclosure under the OPRL because DOJ "had contractually obligated itself under the Confidentiality Agreements to protect its work product if such materials would otherwise be responsive to a public records request." In support of that contention, Pfizer relies on ORS 192.502(9)(a), which exempts from disclosure "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law." According to Pfizer, that exemption
Pfizer's contention, however, is fundamentally flawed. That is so because, as explained above, 254 Or.App. at ___, 294 P.3d at 505, the confidentiality agreements limit DOJ's ability to disclose the exhibits that Pfizer itself produced. In other words, contrary to Pfizer's contention, DOJ is not contractually obligated to protect its own work product in the event that it is subject to a public records request. Thus, under the circumstances of this case, the trial court did not err in concluding that the annotated complaint and the compilation of exhibits to which it referred are not exempt from disclosure as "attorney work product."
In sum and for the reasons that we have explained, the confidentiality agreements obligate DOJ to withhold the Pfizer-produced exhibits to the extent that they are exempt from disclosure under the OPRL. We further conclude as follows:
Accordingly, we reverse, in part, the trial court's denial of Pfizer's motion for summary judgment and allowance of DOJ's cross-motion and remand for the trial court to issue a declaration consistent with this opinion.
Reversed in part and remanded for proceedings consistent with this opinion.
Id. If the person on whom DOJ serves an investigative demand fails or refuses to obey it, the prosecuting attorney may request a court order to, among other things, "restrain the person from engaging in conduct of any aspect of the trade or commerce that is involved in the alleged or suspected violation[.]" ORS 646.626(1)(a).
