The fastest way to succeed is to look as if you’re playing by somebody else’s rules, while quietly playing by your own – an update on Montet v State Farm and Politz v Nationwide

It certain seems to be the way to succeed with protective orders – looking as if you’re playing by somebody else’s rules, while quietly playing by your own. Perhaps someone at the Court will soon catch on with so many different plaintiffs’ counsel voicing opposition to the Gomer strategy.

Montet’s counsel, DeborahTrotter, certainly could not have made her opposition plainer in the Sur Reply she filed today refuting  defendant State Farm’s Rebuttal in Montet v State Farm:

Plaintiffs’ hereby incorporate their Reply in its entirety and maintain their position that the Defendant has not met its burden to demonstrate the documents and information at issue in its privilege log… should be deemed confidential and protected. Therefore any protective order at this time would be premature, including Defendant’s newly proposed “blanket” protective order, which was attached as Exhibit C to its Rebuttal…

Again Plaintiffs point out that Defendant has listed only 46 documents in “II. Privilege Log” that allegedly qualify for protection as Trade Secrets. However, instead of complying with the Rules of Civil Procedure 26 and the Uniform Local Rule 26.1 by providing the Court and Plaintiffs with a proper privilege log that contains information required to determine whether a qualifying privilege exists, the Defendant opted to again ignore the requirements of seeking and obtaining a protective order by good cause shown and submitted yet another proposed “blanket” protective order for the Court to enter. (emphasis added)

Rule 26 FRCP provides little bend; and, yet, the sheer number of pages makes a page-by-page determination of good cause a formidable task.

However, the Fifth Circuit provides some guidance in a 2002 Order issued in In Re Enron Corporation Securities Litigation.  Although a much larger blanket was before the Circuit, much of the argument and all of the citations appear relevant, although actual relevance is a matter for others to decide:

There has been no argument that these documents are not relevant to the case…There is no question, then, that in the Fifth Circuit we start with a presumption that matters obtained through the discovery process are capable of being made public, although the discovery process itself may be conducted in private.

Other Circuits are in accord. In Citizens First National Bank ofPrinceton v. Cincinnati Insurance Company 178 F.3d 943,945 (7th Cir. 1999), Judge Posner summed it up:

  • Most cases endorse a presumption of public access to discovery materials, e.g., Grove Fresh Distributors, Inc. v. Everfresh Juice Co., [24 F.3d 893, 897 (7th Cir. 1994)]; Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470,475-76 (9th Cir. 1992), Public Citizen v. Liggett Group, Inc., [858 F.2d 775, 788-90 (l st Cir. 1988)]’; Meyer Goldberg, Inc. v. Fisher Foods, Inc., 823 F.2d 159, 162-64 (6th Cir. 1987); In re Agent Orange Product Liability Litigation, [821 F.2d 139, 145-56 (l st Cir. 1987)], and therefore require the district court to make a determination of good cause before he may enter the order. … Rule 26(c) would appear to require no less.

The Rule 26(c), by its own language, and the case law, provide that the burden is on the party wishing to obtain a protective order to show that good cause exists for the order. To establish that good cause exists that “party must show that a specific prejudice or harm will result if no protective order is granted.”

Both Phillips and Citizen’s First National Bank scolded the district or magistrate judge for failing to make a good cause analysis of the protective order. 307 F.3d 1206, 1211 and 178 F.3d 943,945, respectively. Judge Posner reasoned

  • the public at large pays for the courts and therefore has an interest in what goes on at all stages of a judicial proceeding. . . .That interest does not always trump the property and privacy interests of the litigants, but it can be overridden only if the latter interests predominate in the particular case, that is, only if there is good cause for sealing a part or the whole of the record in that case…The judge is the primary representative of the public interest in the judicial process and is duty-bound therefore to review any request to seal the record (or part of it). Citizens First National Bank, 178 F.3d 943, 945.

Judge Posner recognizes that in cases with large numbers of documents the district or magistrate judge is often not in a position to make the good cause determination on a document by document basis, but emphasizes that the party seeking protection must in good faith describe a “properly demarcated category of legitimately confidential information.” Citizens First National Bank, 178 F.3d 943, 946.

It is incumbent upon the defendants in the case, if they want parts of their discovery protected, to move in good faith for a particularized protective order pursuant to Rule 26(c).

Trotter, Guice, VanCleave and others have been asking for no more than  a “properly demarcated category of legitimately confidential information” reviewed for good cause before a particularized protective order pursuant to Rule 26(c) is issued.

How the Court ever strayed from that position is a matter worthy of investigation and discussion – particularly in light of the Order Judge Senter entered today in Politz v Nationwide denying Nationwide’s motion to seal certain documents.

There were actually just two documents Nationwide wanted to file under seal:

Nationwide is filing two pleadings on this date: (1) Nationwide’s Response in
Opposition to Plaintiff’s Motion for Review of and Objection to the United States Magistrate Judge’s Order; and (2) Nationwide’s Second Supplemental Motion for Summary Judgment.

Both of these pleadings attach one or both of two exhibits that contain sensitive
personal information about the Plaintiff, which was obtained as a part of the litigation of Plaintiff’s claim against Nationwide for infliction of emotional distress.

These exhibits are: (1) the deposition transcript of Plaintiff Helen Politz…and (2) the report of Dr. Mark Webb from his independent medical examination of Helen Politz.

While I applaud Nationwide’s recognition of the limits the Company can go without inflicting additional emotional distress, the time for compassion has long passed.  In fact, Mrs. Politz never asked for compassion.  She and her late husband trusted Nationwide to protect their property in event of a disaster and asked no more than Nationwide honor the trust established in the policy they purchased from the Company.

Looking only at the portion of Mrs. Politz’s deposition posted on SLABBED today, I can imagine how humbling it was to hear her tell in her own words the story of her trust in the Company and the impact the claims handling process had on her as she watched her husband die with no hope of a fair and prompt resolution.

Judge Senter’s Order, however, makes short work of denying Nationwide’s motion:

Defendant’s related Motion to File Documents Under Seal, which admits that “the information sought to be submitted under seal does not contain ‘sensitive information’” concerning the Plaintiff as contemplated by the local rules, will also be denied.

Instead, he devotes his attention to the examination and denial of Mrs. Politz’s motion for reconsideration of the Magistrate’s Order denying her motion for leave to designate a mental health expert.

Judge Senter’s Order reveals that Nationwide has done exactly as Plaintiff’s counsel suggested in her Reply to the Company’s response to her request for review of Magistrate’s Order:

Nationwide’s strategy for the past several months has been to try and turn the Court against Mrs. Politz, and curb favor for itself, by painting her as a “discovery abuser.” In fact, Nationwide mentions this in pretty much every pleading it has filed in the past several months (and repeats the same examples every time). This is purely gamesmanship, brought on by Nationwide’s smelling of “blood in the water” with the issue… All the while, as pointed out to the Court herein, Nationwide has persisted in across-the-board obstruction and blatant material discovery abuses of its own.

As good and wise a man as Judge Senter appears to be, he alone can not read every motion filed. Consequently, he must rely on staff to read and brief the issues.  It may not happen before the trial; but, there will come a time when he discovers someone has not done their job well:

The parties are reminded of the Court’s Order granting Defendant’s request for trial in separate phases, along with its earlier ruling that “[a]ny discussion of mental or emotional distress will be excluded from evidence during the first phase of this trial when the issue of contract damages alone will be decided.” The Court repeats–again–that “the only issue to be tried in phase one is the coverage claim.” Of course, the Court reserves its ability to determine the admissibility of any testimony. (emphasis added)

Until then, Nationwide should remember the promise it made to Mrs. Politz …and walk humblyon her side.