What’s the Score? dog-wagging-tail protective orders turn game around (part 2 of 2)

Reminiscent of the scene from the Wizard of Oz where Toto exposes the “great and powerful Oz” to be nothing more than a frail man hiding behind a curtain, counsel for State Farm implores the Court to “pay no attention” to its failure to comply with yet another court order…

Bossier’s Reply in Support of Motion for Sanctions Under Rule 37(b) provides the Court with additional information on document requested in discovery, contending the these are examples of State Farm’s conduct that violates the Court’s Order and subjects the Company to the sanctions of Rule 37(b) FRCP :

Shellie Leverett’s re-evaluation report was finally produced three days following her deposition. (See Exhibit 1). A statement State Farm took of Joseph Ziz on May 11, 2009, was produced on July 8, 2009, (the day before Mr. Ziz’s deposition)although the attached map was not produced until the day after his deposition. (Exhibit 2). Some requests have never been fulfilled. For example, State Farm produced only part of the underwriting file and has ignored requests for the rest. (Exhibit 3). (emphasis added)

chart 1  from Bossier Reply 2Bossier added a startling claim in a footnote to the five-page chart that offers the Court additional examples of State Farm’s response to discovery with a comparison of the documents State Farm listed in the privilege log of Lizana v State Farm to the treatment of those same documents in Bossier.

State Farm…has failed to identify any specific document as having been produced among the 9,000 pages contained on two unlabeled, unindexed CD’s produced in discovery. A lack of such identification obviously fails to establish that any particular document was, in fact, produced in this case and constitutes an admission by omission.

SLABBED will examine the confusing, and perhaps conflicting, position of the Court on protective orders after first examining Bossier’s Reply, filed the same day the Court granted State Farm’s motion for a protective order in Lizana v State Farm.

Bossier contends, State Farm’s modus operandi in this case has been to produce only those
documents about which counsel for Plaintiff is already aware.

To achieve this goal, it requires Plaintiff to identify documents prior to producing them. This strategy stands the concept of discovery on its head. After all, discovery relates to the process by which one party “discovers” information and documents in the possession of the other party. If Plaintiff can obtain only those documents about which he is already aware, then no discovery takes place and the purpose of the rules is thwarted.

Given the information contained in the footnotes of Bossier’s Reply, footnote #11 for example, the challenge at this point is understanding how the concept of discovery practiced by State Farm in this case keeps landing on its feet:

11…Counsel for Plaintiff states as an officer of the Court that no documents produced by State Farm in this case bear any title or description as contained on the Lizana privilege log.

In another footnote (#2), Bossier points out, Because time is a limited commodity for all, it would be impossible for Plaintiff’s counsel to file motions on every failure to produce. Footnote #1 directed the Court’s attention to State Farm’s third in camera document dump and how it is in contrast to State Farm’s insistence that its actions have been taken “to avoid taxing this Court’s time and resources.”

Time is a significant issue in terms of Bossier’s motion for sanctions and footnote #15 – State Farm had no reason to waste the Court’s time reviewing non-privileged documents
such as the re-evaluation report. Indeed, State Farm even claimed privilege as to letters and
emails sent by counsel for Plaintiff to State Farm, wasting more time of the Court and Plaintiff’s
counse
l – is a gut-punch reminder to the Court about the purpose of the Rules stated in Rule 1 FRCP:

These rules… should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.

While FRCP Rule 1 gives footnote #15 its power, the gut-punch is delivered in the related text:

Substantial sanctions, including but not limited to civil contempt and/or entry of a default judgment, are necessitated in this case. The record well reflects the substantial time and effort of Plaintiff’s counsel in obtaining appropriate discovery, spanning a period of over six months. The subject motion is but a small part of that effort. As the record reflects, before and after filing the original motion to compel, counsel for Plaintiff expended significant resources to obtain the production of basic, non-controversial documents including those from the claims file and/or referred to in the claims file. As but one example, State Farm produced Shellie Leverett’s re-evaluation report only after her deposition was taken. (See ¶2 above). Even after producing it to Plaintiff, State Farm included the report in documents submitted to the Court in camera, claiming protection.15 See, BOSR00000010EM through BOSR00000019EM.   State Farm documents relating to the re-evaluation of Mr. Bossier’s claim as ordered by the Department of Insurance were required to be subpoenaed from a third party. (See, [47] subpoena to Epiq). State Farm never produced same.

Bossier’s experience is totally contrary to the claim Judge Parker made in granting State Farm’s motion for a protective order in Lazana, restated below from  part 1 of this post:

Plaintiff’s argument over the sufficiency of State Farm’s privilege log is misplaced. Such logs are generally used to allow the party seeking documents to determine whether they desire to seek production of the withheld records. Here the records at issue are being produced, albeit pursuant to a protective order. Plaintiff will not have to rely on State Farm’s privilege log to determine what information is contained in the 46 documents deemed trade secrets by State Farm. Instead, he will have the documents themselves.

How is Judge Parker’s Protective Order in Lizana not an open invitation for State Farm to repeat Bossier’s experience in this case?

In what way does Judge Walker’s Order in Motent not invite a motion to compel that doesn’t also compel a similar six-month delay?

The answer is that neither order protects plaintiffs in either case from the costly, lengthy and time-consuming experience of the Bossier plaintiffs.

The Court alone has both the duty and the power to secure the just, speedy, and inexpensive conduct of discovery – and ensure dog-wagging-tail protective orders that comply with all applicable rules.

SLABBED looks back so that we may move forward – mindful we must respect the past, remember that it was once all that was humanly possible.

Having considered various options for discussing ways to move forward, the most appropriate appears to be using my best non-party manners and reporting what I’ve found most interesting and/or appealing in my research on protective orders in discovery.

First, the interesting:

  • The terms of protective orders are fairly similar across the federal courts and federal agencies with administrative courts.
  • These terms, in turn, are fairly similar to the terms in the protective orders State Farm has proposed in Katrina litigation.
  • However, none I reviewed in any way waived the requirement to document “good cause” – leading me to believe compliance with the requirements is an expected part of the process in securing the consent of the other party.

Best model for Protective Order – and the winner is West Virginia’s Southern District Federal Court.

  • The model is in actual use and when you click on the link, what you will see is an electronic application for a protective order – meaning that with little effort the Court can file these orders in a data base that can be searched by case, document, judge, disposition, name of parties involved, etc.
  • The judge considering a motion, for example, could quickly search the database and learn; (1) if the document had been protected in other cases, (2) any challenges made when it was protected in other cases, and (3) any other information contained in a field in the database.
  • Discovery and post-discovery use of the document are subject to different terms: Nothing contained in this Protective Order shall prevent the use of any document or other material which is marked “CONFIDENTIAL,” or the contents thereof, at any discovery deposition taken in this action.
  • Post-discovery there are two particularly interesting terms related to use in a hearing or trial when the parties do not agree: (1) The parties and/or attorneys shall then attempt to resolve the matter of continued confidentiality by either (a) removing the “CONFIDENTIAL” marking, or (b) creating a mutually acceptable redacted version that suffices for purposes of the case; and (2)If an amicable resolution proves unsuccessful, the parties and/or attorneys may present the issue to the court for resolution. The proponent of continued confidentiality will have the burden of persuasion that the document or material should be withheld from the public record…

Best terms specific to “in camera” treatment: Federal Trade Commission, Amended Protected Order Concerning Discovery Material re California Pacific Medical Group, Inc. d/b/a Brown and Toland Medical Group, Respondent

  • Except where an order seeking in camera treatment is granted , all documents and transcripts shall-be part of the public record.
  • If in camera treatment is granted a copy of the document or transcript with the Restricted Confidential or Confidential Discovery Material deleted must be placed on the public record.

Best website for innovative ideas: Kansas District Federal Court

  • Even with my inability to locate a site map or search option, the site was still a knock out because of the range of information accessible – take a look at the set of forms listed for pro se.

Best article I read: “Do I Really Have To Do That?” Rule 26(a)(1) Disclosures and Electronic Information (David Waxse, Richmond Journal of Law and Technology)

Article documented court implementing anti-squabble requirement

Referring directly to the Federal Rules of Civil Procedure, the court noted that the party’s description and categorization must be sufficient to enable opposing parties “(1) to make an informed decision concerning which documents might need to be examined…and (2) to frame their document requests in a manner likely to avoid squabbles resulting from the wording of the requests.”

Since even using my best non-party manners do not make it possible to serve you a fresh cup of coffee and the pastry of your choice, I’ll close with food for thoughtan ounce of prevention is worth a pound of cure.

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5 thoughts on “What’s the Score? dog-wagging-tail protective orders turn game around (part 2 of 2)”

  1. Great article, Nowdy! You’re such a thorough investigator.

    Sounds like West Virginia has it “going on” w/the Best Model for Protective Orders. Sounds very logical.

    SHIRLEY HEFLIN

  2. Thanks, Shirley. I understand litigation means the two parties could not reach an agreement and that continued disagreement is expected.

    It’s just that the disagreement about protective orders in discovery is so over the top that it’s starting to feel like a very long vacation trapped in a car with children fighting in the back.

  3. Nowdy: For the client’s sake (and not the attorneys’ wallets) one can only hope that they get a Judge who tires easily of seeing the same faces OVER AND OVER AND OVER ABOUT THE SAME THING DAY AFTER DAY AFTER in the litigation matter. I especially like the Judges who get so mad that they whip out an Order b4 the attys. leave the hearing – this, in addition to getting an order entered very QUICKLY, this method eliminates the attorneys fighting over who’s preparing the Order and the debate regarding the wording of the “proposed order.” Indeed, when the attorneys do it, it could linger on for days and days, yet when the Judge does it, it’s quick, it’s RIGHT and it’s FREE. It just too bad there aren’t many more Judges around willing to do that – there are some though! 🙂

    SHIRLEY HEFLIN

  4. I think the judges are already mad and that’s why they keep granting protective orders without property inquiry and documentation.

    On the surface, State Farm looks lucky; but, every one of those orders strikes another blow to the Company’s reputation and contributes to the loss of policyholders. IMHO

    If the tail wags the dog long enough, at some point it will get close enough for the dog to bite it – but that hurts so it’s best if the court takes control before it happens.

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