Condoms in the courtroom – State Farm wears protection, wants to %#!# you! EDITED

All hands on deck and four feet on the floor – counsel for plaintiff D. Neil Harris, Sr.  has filed a  Response in Opposition to State Farm’s Motion for Protective Order that reads like the legal version of Necking and Petting and How Far to Go.

Appropriately so, I might add, as the protective orders granted State Farm are like condoms in the courtroom- needed, of course, since State Farms wears protection because it wants to %#!# you.

Quite simply, State Farm, while acknowledging the Plaintiffs’ right to discover claims procedures, coverage interpretation documents and similar information in the prosecution of their claims for bad faith and fraudulent claims practices, wants to make sure that any evidence proving Plaintiffs’ allegations of institutional fraud is not made available to the public…

State Farm is asking this Court to enter a broad protective Order rendering virtually all the facts developed in this litigation regarding State Farm’s conduct confidential.

State Farm’s request is representative of a growing practice in our Courts of defendants seeking to limit evidence of misconduct in one case to that case, to prevent the public from being apprised of the type of conduct that defendant has undertaken in the community – and to burden plaintiffs and their lawyers with additional expense and time obligations to “re-develop” the same information in related litigation.

Limiting evidence of misconduct is indeed a growing practice – so much so that Hickman, Goza and Spragins, counsel for State Farm, sent Counsel for Plaintiffs an email, dated March 2, 2009, wherein they suggested entry of a consent protective Order incorrectly referred to as “standard” in Katrina litigation.

We’ll call the State Farm standard their missionary motion to make a distinction between that position and the more penetrating position State Farm counsel pulled from the KamaSutra of motion practice and proposed for the Harris litigation.

The order proposed by State Farm in this case would stand in conflict with those numerous Orders previously entered by the United States District Court, allowing information produced by State Farm to be used ONLY in those cases filed by Counsel for these Plaintiffs (see ¶ 3 of proposed Order); and then only to the extent such information is used prior to sixty (60) days past the termination of this specific case. The protective Order proposed by State Farm directs in ¶ 11, that all documents deemed “confidential” in light of the Order (which encompasses ALL information and testimony produced by State Farm after the date of its entry) shall be returned within sixty (60) days after the termination of this litigation.

The bold text below shows the difference between the referenced items in the Consent Order State Farm proposed in the Harris litigation and the version counsel for Harris has consented to in the past litigation with State Farm as defendant.

Item 3: Proposed by State Farm in Harris v State Farm Confidential Information” shall be used solely for purposes of this action and/or the purposes of any other action filed by counsel of record against State Farm Fire & Casualty Company for losses arising out of Hurricane Katrina and shall not be used, directly or indirectly, for any business purpose, commercial purpose, competitive purpose, or any other purpose.

Item 3: Consent Orders previously signed by Counsel for Plaintiff Harris “Confidential Information” shall be used solely for purposes of this action and/or the purposes of any other action, in which Counsel for the Plaintiffs are Counsel of Record, against State Farm Fire and Casualty Company a for losses arising out of Hurricane Katrina and shall not be used, directly or indirectly, for any business purpose, commercial purpose, competitive purpose, or any other purpose.

Item 11: Proposed by State Farm in Harris v State Farm

Within sixty (60) days after conclusion of all aspects of  this litigation, all documents containing confidential information and all copies of same (other than exhibits of record) shall be returned to the designating entity along with executed copies of Exhibit “A.”

Item 10: Consent Orders previously signed by Counsel for Plaintiff Harris

Within sixty (60) days after the conclusion of all aspects of litigation against State Farm Fire and Casualty Company in which Counsel for Plaintiffs are Counsel of Record involving claims arising from Hurricane Katrina, all documents containing confidential information and all copies of same (other than exhibits of record) shall be returned to the designating entity along  with executed copies of Exhibit “A”.

An obvious question, or obvious to me, is why any Plaintiff’s counsel would consent to a Protective Order that limits other counsel’s access to State Farm documents used in Katrina litigation?

The fact that Counsel for Plaintiffs “agreed” to entry of protective orders in other Katrina cases against State Farm does not mean that Counsel for Plaintiffs agreed that protective orders were “necessary”, or that the information State Farm sought to protect warranted protection. Counsel for Plaintiffs merely agreed to entry of protective orders in those cases as a good faith resolution of a disputed issue, to prevent the necessity of Court intervention.

A good faith resolution of a dispute shouldn’t not require any plaintiff’s counsel to grab a  condom to access what is offered only to Counsel of Record – particularly one who presents such compelling arguments:

State Farm’s mere assertion that certain information constitutes “trade secrets” does NOT mean that such information should “necessarily” be protected.  There is no absolute privilege or protection with respect to such matters, however.The common policy in federal and state courts is to promote sharing of materials among litigants.

Such a policy prevents and/or substantially cuts down on duplicative discovery and associated cost, increases judicial efficiency, and promotes the trial of any dispute on its merits, rather than on the basis of the patience, diligence, or deep pockets of plaintiffs counsel and the plaintiffs….

It is black-letter law that a litigant who might be embarrassed, incriminated, or exposed to litigation through dissemination of materials is not, without more, entitled to the Court’s protection. Stated otherwise, those types of harm do not constitute “good cause” for entry of a protective order under the Rules…

State Farm has not right to an automatic protection from the public being granted access to evidence of its misconduct in the arena of responding to Hurricane Katrina claims in Mississippi.

Once a matter is brought before a court for resolution, it is no longer solely the parties’ case, but the public’s case. Absent a showing of extraordinary circumstances set forth by the district court in the record consistent with (11th Circuit precedent), the court file must remain accessible to the public…

State Farm’s request to have all “Proprietary, Confidential and Trade Secret Information” in this case (which it defines as including ALL information produced by State Farm and its representatives) filed with this Court “under seal” constitutes an impermissible attempt to limit the public’s constitutionally guaranteed right of access to the Courts.

When faced with an impermissible attempt to limit the public’s constitutionally guaranteed right of access to the Courts. no one should consent and make protection a ménage à trois

Edit:  Text from an earlier version of this post was included in error and deleted.

2 thoughts on “Condoms in the courtroom – State Farm wears protection, wants to %#!# you! EDITED”

  1. This is what happens when the Chamber of Commerce teams up with a political party (in this case the GOP) and stacks the court with a band of idiots who can never see a large corporation like State Farm doing wrong. In fact, as you point out these protective orders are not only contrary to well established law and public policy they hurt other plaintiffs who lose the opportunity to connect dots via discovery in other related cases.

    Insurers tried this stuff in the LA EAstern District and outside of a few courtrooms with judicial activists judges like Kurt Engelhardt that pig didn’t fly far.

    It seems to me a good lawyer can hold the judiciaries feet to the fire over here professionally and force GOBs like Judge Walker to follow the law instead of the US Chamber’s legal manual.

    sop

  2. Right on sop. The fact is everything but the truth comes now before the courts as a matter of beating down citizens rights to the point that repeated litigation aids the political defendants to do as they please to get what they want.

    Someone or perhaps many will be spending Katrina money to run for some office. It’s funny [ not ] when holding another s feet to the fire. The only one burnt is the one doing the holding, as those feet like a condom are provided political protection.

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