Rich materials unearthed during ediscovery helped a celebrated journalist bring to life the ingenuity and corruption behind one of the largest and most damaging scandals of the last several decades.
Patrick Radden Keefe, a staff writer at The New Yorker, mined troves of confidential electronic documents to connect the dots about drug maker Purdue Pharma and its controlling family, the Sacklers, that are now inseparable in the public mind from the U.S. opioid epidemic.
But the figures behind one of the most devastating public health crises weren’t always so clear.
Though the Sacklers emblazoned their name across public buildings in major cities where they donated to the arts and sciences, they gave no press interviews. They weren’t even mentioned on Purdue Pharma’s company website. One of the wealthiest families in the world remained in shadow even as they grew their business around a new painkiller that would claim more than half a million lives between 1999-2021.
In his Everlaw Summit keynote, Keefe, the author of Empire of Pain: The Secret History of the Sackler Dynasty, shared the hidden story behind the nation’s opioid crisis and the critical role that litigation discovery played in unveiling the key actors and events at its core.
Marketing Blitz Fuels Growing Epidemic
Published in 2020, Empire of Pain describes the opioid crisis as it unfolded in three waves. It started with prescription medication in the 1990s before it moved to heroin in the 2010s and synthetic opioids like fentanyl in recent years.
Nearly 645,000 Americans have died from opioid overdose, 100,000 of them during the coronavirus epidemic alone. “To get to 600,000 Amercians dead, there’s no one actor who’s responsible,” Keefe said. “There's all kinds of failures, all kinds of people who've behaved irresponsibly. It takes a village.” But the family behind one of the nations biggest pharmaceutical companies played a leading role at the genesis of the crisis that also involved institutions like the FDA and a willing medical profession.
“Going back thousands of years, doctors have known that products that derive from the opium poppy have amazing therapeutic effects but can also be tremendously addictive,” Keefe said. Previously, doctors only prescribed them in critical situations, such as managing severe cancer pain, where the risk of addiction was offset by end-of-life considerations.
“And then Purdue Pharma came along in 1996 and sought to upend all of that with this new drug,” Keefe said. Its leaders wanted to market the drug more broadly for all sorts of pain, including sports injuries, arthritis, and back pain. To overcome the medical profession’s initial resistance, Purdue Pharma launched a coordinated marketing campaign, calling doctors' caution around painkillers “hysteria” and claiming to have disentangled the risks of the powerful opioids from the benefits.
“And that was the drug that changed the way opioids were prescribed in this country and eventually unleashed this epidemic of addiction that we are still dealing with today,” Keefe said.
Large pharmaceutical companies selling FDA-approved and doctor-prescribed “fiendishly addictive” opioid painkillers created an addiction for a whole generation of Americans, Keefe said. “Many transitioned to black-market heroin.”
State and federal litigation that followed traced the origins of the crisis back to one company: Purdue Pharma and its drug OxyContin – the most powerful pain medication ever prescribed by doctors.
From a Dearth of Information to a Gold Mine in Ediscovery
Earlier in his career, Keefe noticed the Sackler family name everywhere, in Boston, Washington D.C. and as far as London, on university campuses, medical research centers, and museums. “I thought the family made its money in the era of the Robber Barons,” he said, and was “astonished to find they’d made their money in recent years.”
In 2007, Purdue Pharma pleaded guilty and paid a fine in a lawsuit centered on its deceptive marketing of OxyContin. But despite the prominence of their name on high-profile buildings, Keefe could not find much on the Sacklers’ involvement in the privately-held Purdue Pharma, the company they owned. They weren’t even mentioned on the company website. The conspicuous disconnect between their name so ubiquitous in one context and so absent from another was the seed of the intrigue for Keefe. “Nobody had ever put the aperture so tightly on them and tried to figure out what their role was.”
A huge trove of information emerged during the various state attorneys general suits against the company, a massive number of lawsuits that grew to become some of the largest public interest litigation ever. But it was after several of the states pursued Sackler family members directly that the corporate veil was pierced. That exposed the paper trail that would serve as Keefe’s road map. “One function of the law is storytelling,” he said. “A fact pattern is a narrative.”
Suddenly, through the electronically stored information unearthed through discovery, Keefe had the materials to piece together the full story in the kind of detail that spoke to the average person – not just to doctors or lawyers.
He shared a few:
Internal company emails between senior executives described the best positioning for the drug: “The problem is there are only so many people who have cancer,” one said.
They revealed moves to position the painkillers beyond outlier uses, including the original tagline for OxyContin: “The one to start with, and the one to stay with.”
Whatsapp logs between Sackler relatives documented their reaction to Keefe’s article. “They primarily saw it as a PR problem,” he said, with messages such as: “Guys, it's getting really hot out there. We gotta be really careful about how we communicate, so let's not do it on text or email. Let's do it all here, where it's safe, on WhatsApp.” Of course, those very messages emerged during the litigation process.
In 2019, Purdue Pharma filed for Chapter 11 bankruptcy protection, no doubt in part to deal with the debts related to the thousands of lawsuits against it. But by then, its blockbuster drug had generated some $35 billion in revenue.
One function of the law is storytelling. A fact pattern is a narrative.
Keefe said it came to light through court filings that starting 10 years earlier, the Sacklers started quietly siphoning money out of the company into their private offshore accounts. “They knew that someday someone was going to have to pay the piper,” he said. “And they wanted to make sure that when that happened, all of their wealth wasn't in the company, which might actually have to settle these claims with creditors.”
“They took more than $10 billion out of the company,” Keefe said. “Again, a fact that we know only because of the extensive discovery in this case.”
U.S. Supreme Court to Decide Fate of Opioid Bankruptcy Settlement
The final chapter of the opioid crisis has yet to play out. Keefe noted that the settlement in Purdue's bankruptcy proceedings could shield the Sackler family from future liability. Under the agreement, they’d pay up to $6 billion over 19 years in exchange for not having to acknowledge any wrongdoing. Crucially, they also received immunity from additional civil litigation.
“The estimated cost of the epidemic is more than $2 trillion and their fortune is $11 billion,” Keefe said. That wealth is invested in a very conservative portfolio whose annual return could easily cover the settlement over it's 19 year timeline, he added, meaning they may never have to touch their principal. “They'll be richer when they're done paying than they are when they start and to me, that doesn't really feel like justice.”
The U.S. Supreme Court will consider whether the bankruptcy judge went beyond his mandate. In August 2023, the Court put Purdue Pharma’s bankruptcy plan on hold while it reviews a legal challenge raised against the plan to shield the family from future lawsuits. Justices will hear oral arguments in December.
Promoting Justice by Illuminating Truth in One of the Largest Public Interest Litigation Efforts Ever
Following the keynote, Patrick sat down for a conversation with NPR political correspondent Marisa Lagos and David Hart, Assistant Attorney-in-Charge of the Health Fraud Unit/Consumer Protection Section at the Oregon Department of Justice, who has spent almost a quarter of a century working on prosecuting opioid cases.
They discussed the role of the opioid litigation and related discovery challenges in raising important ethical and legal questions about the justice system in which former prosecutors move into private practice to represent companies like Purdue Pharma, the susceptibility of trusted institutions and the medical profession, where doctors were lavishly feted by pharmaceutical reps and finally persuaded to prescribe dangerous pills.
Like Rachel Taketa, whose presentation at Everlaw Summit ‘22 highlighted how archivists are using publicly available litigation data to understand some of today’s biggest societal crises, Keefe emphasized the importance of the insights that were revealed during the discovery process that stemmed from the lawsuits against the Sackler family and their company.
“I had a treasure map to what was happening inside the company and I couldn't have done it without the discovery documents.”
Don't miss Everlaw CEO AJ Shankar's Summit '23 keynote on how practitioners can get the most value out of Gen AI tools in "Demystifying Generative AI at Everlaw Summit."