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Two companies that distribute pharmaceutical opiates have filed an emergency petition before an appeals court to vacate a court order that allowed public access to a wide-ranging federal drug distribution database this week.

McKesson Corp. and AmerisourceBergen Drug Corp. filed an emergency petition for writ of mandamus Thursday before the U.S. Court of Appeal for the Sixth Circuit that said U.S. District Judge Dan Polster of the Northern District of Ohio abused his discretion in lifting his protective order over the database, which prompted a firestorm of media publicity.

“Creating such publicity adverse to defendants is a key tenet of the plaintiffs' litigation strategy,” wrote lawyers for both companies. “It is unfortunate that in exceeding its jurisdiction, the district court's order has had the effect of assisting plaintiffs in their public relations strategy.”

Both are distributors whose business transactions were among those highlighted by The Washington Post and other news outlets this week as contributing to the public health epidemic by unleashing 76 billion opioid pills over six years. The reports used information from a database that Polster had required the U.S. Drug Enforcement Administration to provide to plaintiffs attorneys in the multidistrict litigation over opioids.

On Monday, he released much of that data to the public.

Neither McKesson attorney Beth Brinkmann, a partner at Covington & Burling in Washington D.C., nor Robert Nicholas, a partner at Reed Smith in Philadelphia, for AmerisourceBergen, responded to requests for comment.

“This petition was filed because the court failed to follow the appropriate legal procedures when it allowed the premature release of the [Automated Records and Consolidated Orders System] data,” wrote McKesson spokeswoman Kristin Chasen. “To maintain the integrity of the legal proceedings, it is critical that appropriate procedures, which are put in place to ensure fairness, be allowed.”

Patrick McGinley, a lawyer for the parent company of the Charleston Gazette-Mail in West Virginia, which fought in court to publicize the database alongside The Washington Post, said his client hadn't yet reviewed the petition, but he was skeptical about the arguments.

“It seems curious that the filing is identified as an 'emergency' motion, though it was filed three days after the district court's disclosure order and after the data had already been disclosed to the nation,” wrote McGinley, a solo practitioner in Morgantown, West Virginia, in an email.

The Automated Records and Consolidated Orders System, or ARCOS, database has been a central focus of discovery in the opioid MDL, which involves nearly 2,000 cities, counties and other governments suing manufacturers, distributors and pharmacies. It provides reporting data from manufacturers and distributors that track 80 million transactions a year involving controlled substances.

The DOJ spent months last year challenging the scope of a request from plaintiffs lawyers to turn over the database, citing concerns about trade secrets, privacy rights and interference with law enforcement investigations. DOJ lawyers agreed to provide some of the database as long as a judge approved a protective order that would keep the data confidential.

In the end, Polster ordered the DOJ to provide the data as to manufacturers and distributors that sold 95% of prescription opiates from 2006 through 2014, but limited access to only the parties in the litigation.

Lawyers for The Washington Post and the Charleston Gazette-Mail intervened to make the ARCOS data public, but Polster rejected their request. They appealed that denial to the Sixth Circuit, which reversed in a 2-1 opinion June 20, concluding that Polster failed to give enough weight to the public's interest. “The ARCOS data will aid us in understanding the full enormity of the opioid epidemic and might thereby aid us in ending it,” the opinion says.

On remand, Polster ordered additional briefing on the scope of a new protective order as to the entire ARCOS database and, as the Sixth Circuit suggested, as to additional documents previously sealed or redacted in the case.

In Monday's order, Polster lifted the protective order for data on or before Dec. 31, 2012. Lead plaintiffs attorneys immediately said in a statement that the data “will prove how the epidemic began and how it spread,” while the Healthcare Distribution Alliance, which represents the distributors, emphasized its members had “no authority to stop physicians from writing prescriptions.”

McKesson and AmerisourceBergen, in petitioning the Sixth Circuit, argued that Polster should have waited until Aug. 5—the deadline to file a petition for rehearing—or until the Sixth Circuit issued its mandate. The U.S. Department of Justice, in a court filing last month for the DEA, raised similar concerns prior to Polster's order, but lead plaintiffs attorneys said there was no conflict.

In their emergency petition, McKesson and AmerisourceBergen cited a U.S. Supreme Court decision that came out four days after the Sixth Circuit's ruling. The June 24 ruling in Food Marketing Institute v. Argus Leader Media adopted a pro-business interpretation of the word “confidential” under an exception of the Freedom of Information Act.

The Supreme Court, they wrote, “defined confidential business information much differently than this court did.”

The companies acknowledged that reversing Polster's order would have no effect on the already publicized ARCOS data, now available on a website. But Polster has indicated he might release more ARCOS data and gave the parties until July 25 to propose a modified protective order.

“The purpose of this filing is not to revisit the release of older ARCOS data, which has now entered the public domain,” lawyers for the distributors wrote in their emergency petition. “The purpose is to ensure that the appellate court and the parties have a meaningful opportunity to follow the appropriate procedures for any further judicial review or consideration throughout the litigation.”