Every protective order I've ever seen has a provision at the end requiring the parties to return or (more likely) destroy any confidential information (with some limited exceptions) from the other party when the case is over. It's generally not a contentious paragraph.
Judge Fallon, however, dealt with a discovery dispute on this issue, that I was surprised had never come up before -- what happens when there are multiple unrelated defendants, as in ANDA cases? Do you destroy the documents when the relevant defendant drops out of the case, or can you keep them until the whole consolidated mess is over and done with?
Per Judge Fallon, the answer is you get to wait until the end of the whole case, reasoning the party proposing the piecemeal destruction bore the burden of showing that this more restrictive order was necessary.
Plaintiffs' proposal to require the return or destruction of protected information following final termination of the litigation, including appeals, unless otherwise agreed in writing, is more consistent with other protective orders entered in similar cases by various Judges in this District . . . Defendants' proposal to require piecemeal return or destruction of confidential information as each Defendant exits the case is not supported by the requisite showing of good cause because Defendants have failed to show that disclosure will "work a clearly defined and serious injury to the party seeking disclosure." See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994). Defendants identify only general allegations of speculative harm without explaining why the balance of terms in the protective order are insufficient to protect the confidential information. Moreover, Plaintiffs' proposal contains a carve-out which allows Defendants to seek earlier return or destruction of sensitive information.
Acerta Pharma BV v. Alembic Pharms. Ltd., C.A. No. 22-154-GBW-SRF (D. Del. Sept. 28, 2022) (Oral Order) (cleaned up).
This dispute seems to have been an actual first for the district, as neither party cited any cases from anywhere actually deciding the issue, and instead pointed to various stipulated orders that the Court had entered in other cases.
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