If you don’t stand for something you’ll fall for anything – Plaintiffs’ growing opposition to State Farm Protective Orders

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…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.

SLABBED stepped up coverage of State Farm’s protective orders with Condoms in the courtroom – State Farm wears protection, wants to %#!# you! EDITED after Coast attorney Chris Van Cleve captured our interest with the force of his argument.

Others have come to our attention.  A personal favorite is this blast from the past Response filed November 2007 in Ayers v State Farm — a certain-to-be legal classic from former Supreme Court Justice Chuck McRae (emphasis added by SLABBED):

Plaintiffs have no objection to the entering of a Protective Order to obtain the documents.

Plaintiffs would request that State Farm also include any file in which they have denied any claim base on any exclusion for any direct physical loss involving hurricane Katrina.

Respectfully submitted…

McRae’s Response is the earliest I’ve seen to mention the quid pro quo involved so directly; but, I suspect there were others even earlier.  The latest, however, is the strong argument of plaintiffs’ attorney Deborah Trotter responding in Opposition in Monet v State Farm

Defendant is withholding discoverable documents responsive to Plaintiffs’ request and proposes to release these responsive documents only pursuant to a “blanket” protective order, which unreasonably restricts the use of nonprivileged, non-protected material, much of which is already in the public domain. Defendant’s proposed protective order also unreasonably limits or restricts access to  discovery conducted by other parties in collateral or similarly situated litigation.

Confidentiality agreements are routinely agreed to by many plaintiffs and corporate defendants in the often mistaken belief that such agreement will make the free flow of discovery much easier. However, many of these stipulated agreements are inherently subject to challenge and modification and have been overturned for not being in compliance with the Federal Rules of Civil Procedure. Many of these stipulated agreements have been entered into without the proper determination that the material  stipulated to qualifies as confidential information that deserves protection in accordance with the required “for good cause shown.” (citation omitted)

The Sixth Circuit Court of Appeals has held that a blanket protective order granting confidentiality to all documents that the parties deemed confidential was improper. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). In that case, the Sixth Circuit noted that the district court could not properly abdicate its responsibility to oversee the discovery process. See also Citizens First Nat’l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 944 (7th Cir. 1999)(District court went too far in accepting the parties’ stipulation that all materials they deemed confidential should be filed under seal. District judge has responsibility to make a good cause determination about such protection under its order); Cumberland Packing Corp. v. Monsanto Co., 184 F.R.D. 504, 505-06 (D.C. N.Y. 1999)(Proposed stipulated protective order failed to adequately protect the public’s interest in accessing judicial documents and monitoring the federal courts. As a result, good cause did not exist to approve such an order. The proposed order would have covered all discovery material or trial testimony and evidence. It would have permitted sealing so long as the party believed “in good faith” that it contained proprietary information.)

…a protective order such as the one proposed by Defendant…is more than overly broad, it is “blanket” protection of all documents and information produced by Defendant or its employees, agents, or servants, without the need to show the required “good cause” for the Court’s protection.

As if that blanket request was not enough, Defendant seeks to pull the wool over  the eyes of the Court by including in its Proposed Protective Order protection for documents beyond its request in its motion to the Court. Defendant seeks to slip in additional language and expand the scope of the Federal Rules of Civil Procedure to include protection of not only alleged trade secrets, but documents that include “matters affecting the privacy interests of persons not a party to this lawsuit.”  This broadened scope is neither defined, nor has the Defendant shown “good cause” for an expansion that exceeds its request in its motion and the scope of the Federal Rules of Civil Procedure.

This type of blanket protective order proposed by Defendant is much like the ones in Citizens and Cumberland that improperly abdicated the Court’s responsibility to oversee the discovery process and did not adequately protect the public’s interest in accessing judicial documents and monitoring the federal courts, and therefore rejected.  Moreover, this type of blanket protective order means that other litigants and courts will not have the benefit of the discovery conducted in this particular case.

…Those who seek to avoid disclosure of commercial information by a protective order bear a heavy burden of demonstrating that disclosure will work a clearly defined and very serious injury. Citicorp v. Interbank Card Assoc., 478 F. Supp 756, 765 (D.C. N.Y. 1979). A protective order inhibiting liberal discovery must issue only on a specific showing that the information is such that its disclosure should be restricted and that the party disclosing it will be harmed by disclosure. Johnson Foils, Inc. v. Huyck Corp., 61 F.R.D. 405, 409 (D.C. N.Y. 1973). For instance, courts have held that an attorney’s affidavit that merely alleges that discovery will reveal a secret formula or trade secrets is insufficient to warrant a protective order. Rosenblatt v. Northwest Airlines, Inc., 54 F.R.D. 21, 23 (D.C. N.Y. 1971)

And, just who is the wool-pulling State Farm attorney who filed the Motion?  Could it be the same wool-pulling State Farm attorney who tried to slip in a more restrictive Order on Chris Van Cleve?

Scot Spragins! And, it’s not his first rodeo either.  The wool-pulling Scot Spragins is the same Scot Spragins whose conduct was questioned in Kuehn v State Farm.

If you don’t stand for something, you’ll fall for anything.

While the slabbed relied on our courts hearing Katrina cases to take a stand for justice, they fell for wool-pulling protective orders hiding evidence of crime.

When the night has come
And the land is dark
And the moon is the only light we see
No, I won’t be afraid
No, I won’t be afraid
As long as you stand by me.

Do you hear Lady Justice singing?

Oh, now, now, stand by me
Stand by me, stand by me.

7 thoughts on “If you don’t stand for something you’ll fall for anything – Plaintiffs’ growing opposition to State Farm Protective Orders”

  1. Yep Nowdy our favorite hired gun Scot Spragins sure keeps himself busy working on the Farm. And he has such a small firm for the number of cases he works for Ed Rust. That might explain why Judge Walker seems to give him extra time to complete his motions and briefs especially compared to plaintiff’s lawyers like Earl Denham that had to work a weekend recently meeting one of Walker’s deadlines.

    That dead fish smell in downtown Gulfport isn’t coming from the Port after all…..


  2. Like any good corporate predator, State Farm knows how to game plaintiff attorneys. A typical ploy goes like this. (SF’s typical “Stepford” counsel): “Mr. Plaintiff attorney, I can’t give you these records, uh, because, uh . . . they’re trade secrets [which of course is an abject lie], but if you sign this protective order, sealing these docs — and BTW it’s what the Judge already entered in the ______ case last week — we can probably do business.”

    This of course is discovery extortion, but when SF has aready gotten their good ol buddy jurist to sign one of these phony protective orders, wrongfully sealing records, presto it’s suddenly touted as “precedent,” and in a fashion, backed up by a loaded gun.

    At this point it’s a Hobson’s choice for P attorney — stand your ground and get hammered anyway by a stacked judicial deck, or regrettably succumb to the extortion and at least get the records. What this does is annul the rules and case law strongly favoring disclosure over secrecy and improper exclusion of probative evidence.

    To even make a claim of trade secret or corporate confidentiality, a burden of proof attaches to the movant. If it’s not met, automatically, and I mean by pure default, they’re supposed to lose.

    The extortion game circumvents all this by using the bogus first order as “precedent.” Secondly, the idea is to trick the P attorney into defining the issue in an overly narrow way. “Stepford” counsel will usually act like the dispute relates only to a mere bog down in the case at hand. (Recurrent Echo from Court on conference call): “ok folks, what’s the problem, why can’t y’all get along,?” to which “Stepford” counsel replies – first having made sure this is all by phone and not written up by court reporter: “Your Honor, the Plaintiff wants these records but as the Court knows from that ruling Your Honor made last week in the ________ case, they’re trade secrets.”

    Of course at this point there’s no court record ever testing in this case or any other whether a single page of the withheld records are real trade secrets, but that’s the very object of the game — use extortion and the bogus first order to take kill dead the burden of proof procedure.

    The real issue is not THESE records in THIS case; hell, anything not privileged which arguably could “lead to the discovery of admissible evidence” is per se discoverable. What’s really at stake, the greater good, the thing which would give serious pause to a bona fide, oath-of-office honoring judge, is the issue of JUDICIAL TRANSPARENCY — a supposed hallmark of American style justice.

    As an overarching policy, JUDICIAL TRANSPARENCY is the engine of legal deterrence. When a civil (or criminal) wrong occurs, forcing us to gin up tax funded judicial machinery to redress it, a major societal interest is well served by the disclosure of the proceeding via a system of open public records. As a means of future deterrence, this makes perfect sense.

    Sounds trite, but by now we all know that insanity is defined as doing the same thing over and over, expecting each time a different result. Without transparency and deterrence, wouldn’t the court system be mindlessly wasting tax dollars to redress over and over the same recurring civil (or criminal) wrongs?

    In the final analysis JUDICIAL TRANSPARENCY is what distinguishes us from the Courts of Deutschland (the Fatherland as it were), circa 1939.

  3. Mr Juriscribe your commentary is generating fan mail from your brothers and sisters on the plaintiff’s bar from across the country. Thought you’d like to know.

    Also AMEN!


  4. A great comment, juriscribe! In fact, you made so many strong (and interesting) points that I couldn’t resist breaking out paragraphs so they’d stand out.

    Keep your eye out for a related post “coming shortly” – now that I’m back and have consistent online access.

  5. thanks sop and nowducit – we all from time to time need to know that the “end is NOT here” – (I can live with “the end is . . . near” just not “HERE”)

  6. Juriscribe I’ll let you in on a secret of mine. You’re hanging with the cyber version of Scipio Africanus.

    Hartwig, Rossie and the rest of the shills never stood a chance. Lesser insurance bloggers I simply made my puppet on a string. (I have the timestamps to prove it too.)

    sop aka Scipio

    ps I apologize in advance because I normally try to steer clear of indulging my ego.

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