In the Matter of GLAXOSMITHKLINE PLC.
Supreme Court of Minnesota.
*261 Michael A. Lindsay, Dorsey & Whitney, Minneapolis, MN, George S. Cary, Sara D. Schotland, Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., for Appellant.
Mike Hatch, Minnesota Attorney General, Michael J. Vanselow, Paul B. Civello, St. Paul, MN, for Respondent.
Charles R. Shreffler, Mohrman & Kaardal, Minneapolis, MN, Elizabeth B. McCallum, Howrey LLP, Margaret M. Zwisler, Charles H. Samel, Latham & Watkins LLP, Washington, D.C., for Amicus Curiae.
Heard, considered, and decided by the court en banc.
OPINION
ANDERSON, G. BARRY, Justice.
The Minnesota Attorney General (the state) served a civil investigative demand on GlaxoSmithKline plc (GSK), requesting certain documents. GSK complied but designated many of the documents as confidential, precluding release of those documents to the public. The state filed a motion in Hennepin County District Court challenging the confidentiality designation on some of those documents. The district court denied the state's motion, holding that the disputed documents are protected from disclosure by the Minnesota Government Data Practices Act, the First Amendment, and a confidentiality agreement and protective order agreed to by the parties. The court of appeals reversed on all grounds. We granted GSK's petition for review. We affirm in part, reverse in part, and remand to the district court for further proceedings consistent with this opinion.
In May 2003 the state served a civil investigative demand (CID) on GSK, a pharmaceutical company. Minnesota Statutes § 8.31, subd. 2 (2006), authorizes the attorney general to issue a CID for purposes of discovery, pursuant to a pending investigation, without commencing a civil action and without leave of the district court. A CID is a statutory discovery tool that assists the state in investigations of suspected violations of Minnesota law. The state believed GSK was violating Minnesota antitrust law by conspiring with other pharmaceutical companies to prevent the sale of prescription drugs to Canadian pharmacies, which sold the drugs to Minnesota purchasers. The state's CID requested that GSK produce information, including documents, relating to both its sale of drugs to Canadian pharmacies and its communications with other pharmaceutical manufacturers, lobbyists, and trade associations regarding importation of drugs from Canada.
Before GSK produced any documents, GSK and the state entered into a confidentiality agreement. The agreement permitted GSK to designate any produced documents as confidential if there was a legal basis that made confidentiality appropriate. For example, any documents that could be subject to a protective order under Minn. R. Civ. P. 26.03 could be designated as confidential. By the terms of the agreement, the state could use the documents designated as confidential for investigation or litigation purposes but could not disclose the documents. The agreement *262 provided that the state could challenge the confidential designation of documents and allowed GSK an opportunity to move the district court to resolve the dispute over confidentiality. The agreement also provided that if the state commenced litigation against GSK, the agreement remained in effect until the court modified, terminated, or superseded it.
Following execution of the confidentiality agreement, GSK partially complied with the state's CID but continued to withhold some of the requested documents. The state filed a motion in Hennepin County District Court to compel the production of the remaining documents requested in the CID. Before the court ruled on the state's motion, GSK filed a motion for a protective order, requesting that the state be prohibited from using the disputed documents outside of the investigation and litigation context. The district court granted the state's motion to compel but denied GSK's motion for the protective order.
GSK continued to withhold a subset of the requested documents, arguing that they were protected from disclosure under the First Amendment. In response, the state filed a second motion to compel production. The parties subsequently agreed that GSK would produce all but 120 of the over 1,000 withheld documents, subject to a protective order. The district court granted a protective order, using language closely aligned with the parties' earlier confidentiality agreement. The protective order also stated that confidential documents filed with the court in the investigatory process or any resulting litigation must be filed under seal, pending further order from the court. The district court then conducted an in camera review of the remaining 120 withheld documents. Following review, the court required GSK to produce four of the documents and portions of a fifth document to the state, and GSK complied. The remaining undisclosed documents are not at issue in this case.
Pursuant to the terms of the confidentiality agreement and protective order, GSK designated many of the documents it disclosed to the state as confidential. The state disagreed with the confidential designation on some of those documents and consequently filed a motion in Hennepin County District Court challenging the confidentiality designation on 44 of the documents.[1] The state argued that the disputed documents were not confidential under the parties' confidentiality agreement or protective order because they did not meet the applicable legal standards for confidentiality under the Minnesota Government Data Practices Act (MGDPA)[2] or Minn. R. Civ. P. 26.03. Therefore, the state argued that the disputed documents should be available for release to the public.
Before the district court ruled on the state's motion, the state provided the court with a copy of a complaint to be filed under seal against GSK in Ramsey County District Court, attaching many of the disputed documents to the complaint.[3] Less *263 than one week later, the Hennepin County District Court issued an order denying the state's motion for a declaration that the disputed documents are not confidential. The court based its denial on three grounds: (1) under the MGDPA, civil investigative data do not become "inactive" upon commencement of an enforcement action, (2) the disputed documents were correctly designated as "petitioning documents," protected by the First Amendment and subject to a protective order under Minn. R. Civ. P. 26.03, and (3) the parties' confidentiality agreement and the previously issued protective order preclude releasing the disputed documents to the public.
The state both appealed and petitioned for discretionary review of the district court's order to the Minnesota Court of Appeals. The court of appeals dismissed the state's appeal and denied the state's petition for discretionary review. We granted the state's petition for review and held that a district court order in a CID proceeding that finally determines the confidentiality of documents produced may be appealed of right. In re GlaxoSmithKline plc (GSK I),
On remand, the court of appeals reversed the Hennepin County District Court's order that the disputed documents remain confidential. In re GlaxoSmithKline plc (GSK II),
GSK asks us to consider three issues on appeal: (1) whether the court of appeals erred in holding that the MGDPA does not protect the disputed documents from being made public; (2) whether the court of appeals erred in holding that the disputed documents may not be the subject of a protective order based on First Amendment rights; and (3) whether the disputed documents represent pretrial discovery, entitled to a presumption of privacy. The state asserts that GSK has no valid argument in this appeal for continued nondisclosure of the disputed documents and consequently asks us to determine whether Minn. R. Civ. P. 26.03(g) protects 13 of the disputed documents from disclosure as "commercial information," which, the state asserts, is GSK's only remaining basis for continued nondisclosure of any of the disputed documents. We address each issue.
I.
GSK first argues that the MGDPA protects the disputed documents from disclosure. The MGDPA regulates "the collection, creation, storage, maintenance, dissemination, and access to government data in government entities." Minn.Stat. § 13.01, subd. 3 (2006). The act creates a presumption that government data are public and may be accessed by the public unless access is prohibited by law or a temporary classification of the data. Id.
Minnesota Statutes § 13.39 is the section of the MGDPA that pertains to civil investigations. Although civil investigative data are classified as confidential under section 13.39, subd. 2(a), subdivision 2(a) and subdivision 3 provide specific circumstances under which civil investigative data may be made public: where a governmental *264 entity determines that disclosure is required for one of three enumerated reasons; where the data are presented in court or made part of a court record; and where a civil investigation becomes inactive. Minn.Stat. § 13.39, subds. 2(a), 3. GSK argues that neither subdivision 2(a) nor subdivision 3 of section 13.39 permits release of the disputed documents to the public in this case. We review questions of statutory interpretation de novo. Hyatt v. Anoka Police Dep't,
A. Minn.Stat. § 13.39, subd. 2(a).
Minnesota Statutes § 13.39, subd. 2(a), provides, as relevant here, that "data collected by state agencies * * * as part of an active investigation undertaken for the purpose of commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are classified as protected nonpublic data," as defined in Minn.Stat. § 13.02, subd. 13 (2006). "Protected nonpublic data" is defined as information made "not public" by statute or federal law. Minn.Stat. § 13.02, subd. 13.[4] But Minn.Stat. § 13.39, subd. 2(a), also provides that a state agency may make protected nonpublic data accessible to the public if it determines that public access will "aid the law enforcement process, promote public health or safety or dispel widespread rumor or unrest." The state argued to the district court that this language delegates sole authority to the governmental agency conducting the civil investigation to determine if one or more conditions are met, allowing the state to release protected nonpublic data in the civil investigative context to the public without judicial review. The district court disagreed. The court of appeals concluded that the governmental entity conducting the civil investigation has discretion to determine when one of the three conditions enumerated in subdivision 2(a) is met and has the authority to release the documents after making that determination. GSK II,
GSK argues that the district court has authority to review the state's determination that one or more of the enumerated conditions are met under subdivision 2(a). GSK asserts that none of the conditions apply in this case and therefore contends that the disputed documents may not be made accessible to the public under subdivision 2(a). But the parties here entered into a confidentiality agreement, which in turn formed the basis of a protective order, and based on our understanding of the agreement and order, we do not reach the legal question of whether subdivision 2(a) permits judicial review of the state's determination that one or more of the conditions justifying public access to protected nonpublic data are met.
*265 Unless an agreement is ambiguous, we determine the parties' intent from the language used. Travertine Corp. v. Lexington-Silverwood,
Absent the agreement and order, the civil investigative data that GSK provided to the state were already protected nonpublic data, or confidential, under subdivision 2(a). The terms of the agreement and order provide additional protection for the documents. If the state has discretion to release the documents under subdivision 2(a), as the state argues, the provisions of the confidentiality agreement and protective order are largely meaningless, and the provisions that grant the district court authority to determine whether the documents are properly designated as confidential are nullified.
We conclude that the confidentiality agreement and protective order limit whatever discretion the state may have had under subdivision 2(a) to disseminate the disputed documents to the public. But because the agreement and order vest authority in the court to resolve disputes regarding the confidential status of documents, on remand, the district court should consider whether any of the three conditions enumerated in subdivision 2(a) apply.[5]
B. Minn.Stat. § 13.39, subd. 3.
Minnesota Statutes § 13.39, subd. 3 (2006), provides that inactive civil investigative data are public, subject to limited exceptions. Civil investigative data become inactive if the government decides not to pursue a civil action, the time to file a civil action has expired, or the rights of appeal of either party in the civil action have been exhausted or expired. Id. The state does not argue that the investigative data are inactive but instead draws our attention to a provision in subdivision 3, which states: "Any civil investigative data presented as evidence in court or made part of a court record shall be public." (Emphasis added.) GSK argues that even though the state filed its complaint in Ramsey County District Court with many of the disputed documents attached, the "court record" reference in the statute does not encompass documents attached to a complaint. The court of appeals concluded that under subdivision 3, once the state filed its complaint in Ramsey County District Court, the complaint became a "court record," including the disputed documents attached to the complaint as exhibits. GSK II,
We agree that GSK's civil investigative data became part of a court record when the disputed documents were attached to a complaint and filed with the district court. GSK encourages us to adopt the approach *266 of several federal circuit courts by determining that documents and other evidence do not become part of a court or judicial record until they are used to determine a party's substantive rights. See, e.g., In re Boston Herald, Inc.,
Under the MGDPA, civil investigative data are private until the investigation is no longer active, the data are presented as evidence in court, or the data are made part of a judicial record. Minn.Stat. § 13.39, subd. 3. Any investigative data that are not filed with the court remain protected nonpublic data until the investigation becomes inactive, which occurs when the state agency either decides not to pursue a civil action or the time to file a complaint or an appeal expires. Id. But once data are filed with the court, any protection for the documents must come from the court. Minn.Stat. § 13.90 (2006) ("The judiciary is not governed by this chapter. Access to data of the judiciary is governed by rules adopted by the Supreme Court.").
Once documents are filed with the court, public access is governed by the Minnesota Rules of Public Access to Records of the Judicial Branch. These rules define "records" broadly, to include "any recorded information that is collected, created, received, maintained, or disseminated by a court or court administrator, regardless of physical form or method of storage." Minn. R. Pub. Access to Recs. of Jud. Branch 3, subd. 5. The public is granted access to all case records, except for the limited exceptions enumerated in Rule 4, which includes court rules and orders. Minn. R. Pub. Access to Recs. of Jud. Branch 4, subd. 1. Access to any case records may be restricted, as provided for by applicable court rules. Minn. R. Pub. Access to Recs. of Jud. Branch 4, subd. 2. We note that a protective order is one method by which a court may restrict access to records that would otherwise be available to the public.
The state cites Westrom v. Minnesota Department of Labor & Industry,
We conclude that under Minn.Stat. § 13.39, subd. 3, civil investigative data attached to a complaint become part of a "court record," and the MGDPA no longer provides a basis for maintaining the confidential status of such data. We affirm the court of appeals' reversal of the district court on this issue. Because we determine that subdivision 3 does not provide a basis for continued nondisclosure of the disputed documents attached to the state's complaint, on remand, under the MGDPA, the district court must decide whether the disputed documents that were not attached to the state's complaint meet any of the conditions enumerated in Minn.Stat. § 13.39, subd. 2(a).
II.
GSK next argues that the court of appeals erred in its conclusion that the documents may not be the subject of a protective order based on a First Amendment association right. GSK argues that First Amendment association rights may form the basis of a protective order under Minn. R. Civ. P. 26.03. We apply de novo review to First Amendment issues. See Fedziuk v. Comm'r of Pub. Safety,
GSK and amicus curiae Pharmaceutical Research and Manufacturers of America (PhRMA)[6] argue that public disclosure of the disputed documents would chill their First Amendment association rights. GSK asserts that the release of its documents would infringe on its association right because disclosure would chill its ability to communicate openly with other pharmaceutical companies and groups such as PhRMA and chill its ability to implement plans and goals to petition the government, especially pertaining to issues that may be publicly unpopular. The court of appeals concluded that neither GSK nor PhRMA provided any evidence to support a claim that public disclosure of the disputed documents would interfere with their respective association rights. GSK II,
The freedom of association is not enumerated in the U.S. Constitution but is a derivative right, recognized as necessary to make meaningful the enumerated First Amendment rights of speech, press, petition, and assembly.[7]Metro. Rehab. Servs., Inc. v. Westberg,
In order to protect the right to associate, courts have recognized that some measure of privacy may be necessary. The Supreme Court stated, "[i]nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." Patterson,
PhRMA expresses concern that the state's release of the disputed documents may chill both its communications with member companies in the pharmaceutical industry and its ability to communicate internally among staff members. The Supreme Court has concluded that First Amendment protection extends not only to individuals, but also to corporations, associations, and unions. See First Nat'l Bank v. Bellotti,
Organizations such as GSK and PhRMA are clearly entitled to the First Amendment protection of their association rights, both within their respective organizations and with respect to communications with other organizations. But we have never determined whether an infringement or chill on an association right may form the proper basis for a protective order to guard that right.
Minnesota Rule of Civil Procedure 26.03 provides that "for good cause shown," a district court may make "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense" in the discovery context. We stated that Rule 26.03 "gives the trial court broad discretion to fashion protective orders and to order discovery only on specified terms and conditions." Erickson v. MacArthur, *269
Sound policy reasons exist for issuing orders to protect the association rights of individuals or organizations. For example, a protective order may protect members whose association with an organization might subject them to harassment or intimidation, and a protective order may guard against the unwillingness of potential members to associate with unpopular groups for fear of public disclosure. See U.S. Dep't of Agric.,
Where appropriate, courts have permitted discovery of information that affects association rights but have prohibited dissemination of the information beyond the litigation context. See Marshall v. Bramer, ___ U.S. ___, ___, ___ S.Ct. ___, ___,
We conclude that it is within the district court's discretion to issue protective orders for the purpose of protecting an individual or organization's association right. Relief may include prohibiting public disclosure of discovered materials that adversely affect the association right. Because this is our first opportunity to discuss protective relief for an asserted chill on an association right, we turn next to the framework that the district court should apply in exercising its discretion. Based on our review of case law from other jurisdictions, we conclude that the district court should use a two-step analysis. First, the court should determine whether a party asserting the need for a protective order has sufficiently established a potential chilling effect on its association right. Second, if the party meets this burden, the court should balance the party's association right against the state's interest in releasing the information to the public. The state must demonstrate a compelling governmental interest in order *270 to release documents protected by the First Amendment right to association.
A. Prima Facie Showing of a Chilling Effect on an Association Right.
Courts typically require that a party asserting the need for a protective order first show that its First Amendment association right may be chilled before a protective order may be issued. See, e.g., U.S. Dept. of Agric.,
In Buckley v. Valeo, the Supreme Court further discussed association rights, this time in the context of required disclosures of financial contributors to political parties.
Courts have generally followed Buckley, requiring that a party asserting the need for protective relief show a reasonable probability of a chill on its First Amendment association right. See U.S. Dep't of Agric.,
The evidentiary showing required to demonstrate a reasonable probability of a chill on an association right is more than subjective assertions of a fear of reprisal. See McLaughlin v. Serv. Employees Union, AFL-CIO, Local 280,
We conclude, in the context of this case, that before a protective order may be issued to prevent disclosure of documents or materials to prevent a chilling effect on a party's association right, a party must make a prima facie showing by demonstrating a reasonable probability that the disclosure will cause active members to withdraw or dissuade others from joining because of an objective and articulable fear of threats, harassment, or reprisal to the individual or organization.
B. Balancing the Association Right Against the State's Interest in Disclosure.
If a party makes a successful prima facie showing, the district court must balance the party's association right against the state's interest in disclosing the information. Balancing tests are often utilized to protect a party's First Amendment association right. See, e.g., Black Panther Party,
The factors used by the district court in determining the competing interests of the parties will vary in each case. For the party asserting a chill on its association right, once it has established a *272 prima facie showing of potential harm in the first step of the analysis, the strength of that harm is relevant in the second step of the balancing test. The argument against disclosure will "ordinarily grow stronger as the danger to rights of * * * association increases." Black Panther Party,
The party's association right is then weighed against the state's interest in disclosing the information to the public. For example, we noted that in order to make effective the attorney general's statutory duty to enforce antitrust laws, "such enforcement usually must be done publicly, for educational purposes and to deter similar conduct by others." GSK I,
In assessing the competing interests of the parties and disclosure, the district court should consider the stage in litigation at which public disclosure is sought. In Seattle Times, the Supreme Court noted that "[m]uch of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information."
But later in litigation, the privacy interest surrounding pretrial discovery is more likely to yield to the common law presumption of access. See Minneapolis Star & Tribune Co.,
We note that the district court ruled that the disputed documents "were correctly designated as petitioning documents subject to First Amendment privilege" and *273 for that reason, among others, would remain confidential. GSK's First Amendment argument in this court is focused primarily on the freedom of association, with only occasional reference to "petitioning" rights. Although, as noted above, the right to petition the government for redress of grievances is one of the express First Amendment rights from which the right to association derives, the court of appeals correctly observed there is no firm body of law establishing a "petitioning privilege" that provides absolute protection for "petitioning" documents from either discovery or public disclosure. GSK II,
The court of appeals correctly explained that federal courts have rejected the notion that the Noerr-Pennington doctrine[12] establishes a privilege against discovery of petitioning documents.
We reverse the court of appeals' holding that the district court abused its discretion in prohibiting public access to the documents based on GSK and PhRMA's asserted First Amendment rights. We remand to the district court so that it may, consistent with this opinion, determine whether GSK and PhRMA's documents are entitled to a protective order based on First Amendment association rights, as asserted by GSK and PhRMA.[13] Based on the unusual procedural history of this case, with the Hennepin County District Court overseeing the civil investigation and the Ramsey County District Court as the venue in which the state's complaint was filed, we exercise our supervisory authority by remanding both the Hennepin and Ramsey County proceedings exclusively to the Ramsey County District Court, because that is the venue that is home for the underlying litigation. That court already has authority over the documents filed with the complaint, and, if the state so requests, it may also review the remaining disputed documents that were not attached to the complaint. The current record is *274 sufficient for the district court to make its determinations.
III.
The state asks us to determine whether 13 documents that GSK designated as confidential commercial information, under Minn. R. Civ. P. 26.03(g), should remain confidential. The state did not seek review of this issue in its response to GSK's petition for review but makes the request for the first time in its brief. See Minn. R. Civ. App. P. 117, subd. 4 ("Any responding party may, in its response [to a petition for review], also conditionally seek review of additional designated issues not raised by the petition."). But we may take any "action as the interest of justice may require," Minn. R. Civ.App. P. 103.04, and we have the authority to consider issues that were not included in the Rule 117 petition for review. See Baker v. Ploetz,
GSK had little opportunity to respond to the state's arguments about these documents due to space limitations in its reply brief. Because the parties' arguments will be better developed in the district court, we decline to determine whether the specified documents qualify as confidential commercial information under Minn. R. Civ. P. 26.03(g).
Affirmed in part, reversed in part, and remanded.
NOTES
Notes
[1] While the state's motion challenged the confidentiality of 44 documents, both parties have asserted in their briefs to this court that 45 documents are at issue. GSK further asserts that it withdrew its objection to six documents and that one more was already publicly available. On the record before us, we cannot determine with certainty how many documents are currently disputed.
[2] The MGDPA is codified at Minn.Stat. ch. 13 (2006).
[3] The complaint alleged violations of Minnesota antitrust law, consumer fraud, and deceptive trade practices. In March 2006, the Ramsey County District Court denied GSK's motion to dismiss the state's lawsuit. GSK states that it has not yet filed an answer to the state's complaint, by agreement of the parties.
[4] Subdivision 13 of section 13.02 also defines protected nonpublic data as data "not accessible to the subject of the data." This language caused the court of appeals to conclude that the disputed documents were not protected nonpublic data because GSK provided them to the state and thus, the subject of the data "obviously had access to them." GSK II,
[5] In its order, the district court rejected the state's argument under subdivision 2(a) of section 13.39 without providing any analysis of whether any of the three conditions applied. Because we are unable to determine whether the court properly exercised its discretion on this record, we remand the issue so that it may make explicit findings.
[6] PhRMA describes itself as a "voluntary, nonprofit trade association representing the United States research-based pharmaceutical industry." PhRMA authored 11 of the documents produced by GSK to the state, which the state now seeks to release, and PhRMA argues those documents should remain confidential for the same First Amendment reasons that GSK asserts. PhRMA notes that it is not a named defendant in the antitrust action filed in Ramsey County District Court, and the state has not sought documents directly from PhRMA.
[7] The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
[8] See Wainwright v. Wash. Metro. Area Transit Auth.,
[9] The court of appeals stated that "associating purely for financial gain does not come under the umbrella of First Amendment protection." GSK II,
[10] It is worth noting that the cases cited all required the government to demonstrate a compelling governmental interest in order to gain access to information that implicated a party's association right. Because in this case the state already has access to the disputed documents to use in litigation and only seeks to share information from those documents with the public, we conclude that the state's burden in demonstrating the need to release that information to the public should be at least equivalent to the standard other courts have used to compel discovery.
[11] GSK encourages us to adopt a formal "presumption of privacy" for pretrial discovery materials, but we decline to do so at this time. District courts, exercising discretion and with these guidelines now offered, can adequately protect parties' privacy interests and First Amendment rights without a formal presumption of privacy as argued by GSK.
[12] The Noerr-Pennington doctrine is based on two U.S. Supreme Court cases holding that concerted activity to petition the government is not an antitrust violation under federal law. See United Mine Workers v. Pennington,
[13] We note that the district court should determine whether each document the state challenges merits protection based on GSK and PhRMA's First Amendment arguments, and if there are only portions of particular documents that are entitled to protection, the rest of the document should be available for public access.