In Limine Gag Orders – Can We Play, Too?

Lately, we've seen some plaintiffs add gag order requests to their complement of in limine motions in advance of significant trials. Those of us who participated in the Bone Screw litigation remember plaintiffs attempting – and failing − to prevent the defendants from communicating with their customers (implanting physicians) about that litigation. Unfortunately, no order resulted. The first gag order relating to advertising involving civil litigation was entered at about the same time as our Bone Screw brouhaha in a securities-related case. Koch v. Koch Industries, Inc., 2 F. Supp.2d 1409 (D. Kan. 1998). The court gagged both sides equally, and only after both sides agreed. Id. at 1415 ("plaintiffs also ask the court to enter an order prohibiting the defendants from advertising" [and] "defendants apparently agree that the court should preclude both sides . . . from advertising").

Advertisements published or to be published by the parties in this case, whether selling products or ostensibly serving the public interest, seemingly carry messages directed at swaying public sentiment to that party's side in this case. In short, this case will tried in the courthouse; any attempt to try this matter in the media ends now. In reaching this decision, the court has considered less restrictive means of preventing unfair prejudice attributable to pretrial publicity. Unfortunately, the court can devise no content-based restriction that will be fairly and equally applied to the parties. In light of the parties' respective requests for restraint, a total ban on advertising is not only simple and expedient, but seems most equitable.

Id. See also Pfahler v. Swimm, 2008 WL 323244, at *2 (D. Colo. Feb. 4, 2008) (rejecting plaintiffs' request for civil gag order). Moreover, no matter what the parties might have been trying to communicate to potential jurors in Koch (there had also been a rather questionable opinion "poll" taken by one of the parties), we're sure that they weren't discussions of life saving medical products – or even corporate feel-good advertising of the sort seen while watching "Meet the Press" and other similar Sunday talk shows.

In prescription medical product liability litigation, such distinctions so far haven't mattered much. The First Amendment implications of gag orders against pre-trial advertising have been obvious to courts. In In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Products Liability Litigation, 2011 WL...