Just as litigation against the tobacco companies beginning with the Minnesota settlement has led to over 90 million pages of previously secret tobacco industry documents being made public, the recent settlement between state attorneys general and with McKinsey Company will make internal McKinsey documents available to the public.
The tobacco industry documents have led to over 1000 publications, including not only academic studies but also news and government reports as well as films and public education and advocacy materials. All this research has helped transform the tobacco issue worldwide.
Now, the attorneys general are poised to do the same thing with opioids.
On February 21, 2021, Massachusetts attorney general Maura Healey, a leader in the McKinsey litigation, In an interview with the PBS News Hour that “we set up an online document repository where, in months’ time, everyone in the country, researchers, the press, the public, will be able to see McKinsey’s e-mails, memos, and the individuals who were involved in this effort.”
The Consent Agreement contains strong specific document disclosure provisions (starting on page 9):
All non-privileged documents McKinsey produced to any of the Settling States in response to investigative demands or other formal or informal requests related to opioids in 2019, 2020, or 2021, prior to the date of this Judgment, that fall within the following categories:
a. All communications with Purdue Pharma LP (“Purdue”);
b. All documents reflecting or concerning McKinsey’s work for Purdue;
c. All communications with Endo Pharmaceuticals (“Endo”), Johnson & Johnson, or Mallinckrodt Pharmaceuticals (“Mallinckrodt”) related to opioids;
d. All documents reflecting or concerning McKinsey’s work related to opioids for Endo, Johnson & Johnson, or Mallinckrodt;
e. All documents and communications sent or received by individual consultants agreed upon by McKinsey and the Settling States related to opioids or the opioid crisis;
f. All documents listed by Bates number in Appendix A.
Also, significantly, the agreement requires that “All documents produced under this provision shall be provided in electronic format with all related metadata. McKinsey and the Settling States will work cooperatively to develop technical specifications for the productions.” Requiring release of the meta-data (indexing information) will substantially increase the usefulness of the documents to researchers and the public as well as lowering the cost of making the documents available and searchable.
The UCSF Library has already started collecting opioid industry documents that can be cross- searched with the tobacco industry documents.
It would be great to see this substantial new set of McKinsey documents to be added to this collection. Doing so would not only save the time and expense of building a new website, but facilitate the kind of cross-company (and, now, cross-industry) research that has proven so useful for tobacco.
The Consent Agreement also includes funds (administered by the National Association of Attorneys General) to make make this new collection available. This is similar to how the tobacco industry documents have been made available, initially in physical depositories was funded mostly through the Minnesota settlement. Later the UCSF digital collection was funded through the Tobacco Master Settlement Agreement (through the American Legacy Foundation, now Truth Initiative), the Engle Settlement through the Flight Attendant Medical Research Institute, and a consent order in the federal racketeering case against the big cigarette companies.
The McKinsey settlement is a good model for document disclosure for other ongoing opioid litigation as well as global warming litigation to help continue transforming public understanding and policy action on those issues.