Pfizer Inc. v. Oregon Department of Justice
254 Or. App. 144
| Or. Ct. App. | 2012Background
- Pfizer produced exhibits during a multistate DOJ investigation into Pfizer’s Bextra/Celebrex marketing under confidentiality agreements that persisted after the investigation.
- DOJ’s public records request sought Pfizer’s annotated complaint and supporting exhibits; Pfizer sought declaratory relief to enforce confidentiality.
- The confidentiality agreements allow disclosure to some parties but require confidentiality and defer to each state's public records act and the OPRA.
- The trial court held most exhibits were not exempt under the OPRL; as to a subset, it found trade secrets; it also denied work-product protection for the annotated complaint and exhibits.
- Pfizer appealed arguing exhibits/annotated complaint are exempt as trade secrets, confidential submissions, or attorney work product; DOJ cross-appealed on other exhibits.
- The Oregon Court of Appeals ultimately concluded the agreements require withholding to the extent of OPPRL exemptions, reversing in part and remanding for a declaration consistent with its opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do the confidentiality agreements obligate withholding under OPPRL exemptions? | Pfizer asserts agreements require withholding to the OPPRL extent. | DOJ contends the agreements only cover confidential designation, not OPPRL exemptions. | Yes; agreements obligate withholding to the extent permitted by OPPRL exemptions. |
| Are Exhibits exempt as trade secrets under ORS 192.502(9)(a) / UTSA? | Exhibits qualify as trade secrets due to value from secrecy and efforts to maintain secrecy. | Exhibits lack essential secrecy/novelty; content is disclosed or readily available. | Exhibits 1-4, 7-9, 11, 13-16, 18-19, 21-40, 44-73, 75-94, 96-101, 103 are trade secrets and exempt. |
| Are Exhibits 17, 20, 41-43, 74, 95, 102, 104-109 exempt as confidential submissions under ORS 192.502(4)? | They remain confidential; disclosure would harm Pfizer and public interest. | Much of the content is already public; not reasonably confidential. | Not exempt as confidential submissions; not protected. |
| Is the annotated complaint exempt because it discloses exempt exhibits? | Annotated complaint should be exempt if it discloses trade-secret material. | Annotated complaint itself not protected as a separate category. | To the extent it discloses exempt exhibits, the annotated complaint is exempt. |
| Are the annotated complaint and exhibits exempt as attorney work product under ORS 192.502(9)(a) and ORCP 36 B(3)? | DOJ is contractually obligated to protect its work product; thus exempt. | DOJ is not obligated to protect DOJ’s own work product in a public records request. | Not exempt as attorney work product; protected only to the extent of the trade-secret exemptions. |
Key Cases Cited
- Kaib’s Roving R.PH. Agency, Inc. v. Smith, 237 Or. App. 96 (2010) (trade secret factors; two-prong test for ORS 646.461(4))
- Citizens’ Utility Bd. v. PUC, 128 Or. App. 650 (1994) (requirement of demonstrating specific harm to establish trade secret protection)
- In Defense of Animals v. OHSU, 199 Or. App. 160 (2005) (public body bears burden of sustaining exemptions; context of disclosure)
- Eden Gate, Inc. v. D&L Excavating & Trucking, Inc., 178 Or. App. 610 (2002) (summary judgment standard; dual motion analysis under ORCP 47 D)
- Shogun’s Gallery, Inc. v. Merrill, 229 Or. App. 137 (2009) (contractual interpretation of confidentiality provisions in context)