the pause that refreshes – all but five “confidential exhibits” declassified in Schafer v State Farm

SLABBED readers were introduce to Schafer v State Farm in the scheme,  fourth chapter – the blame game:

This is a case about State Farm’s uniform, corporate-wide practice of undervaluing Louisiana insured’s property damage after Hurricane Katrina and Xactware’s active and intentional collusion. State Farm required its adjusters to use the computer program Xactimate to compute the replacement value of damaged property for as much as 60% below the actual market place value.

In the year plus since the scheme was published, the case was denied class status but, alone, Schafer v State Farm is moving toward trial set to begin on the 28th of June before Judge Africk – reportedly the most likable pro-insurance judge on the bench.  Perhaps the best background on the case published on SLABBED is found in the January 2010 post State Farm’s Protective Orders are Dispositive Motions in disguise.

Now for the Order released on PACER today – one I’ve been waiting for since September 3, 2009 when the Schafer’s filed a Motion to Declassify Exhibits“:

The Court has completed the in camera inspection of documents furnished by State Farm in the above captioned matter in connection with the plaintiffs’ motion to declassify and the defendants’ joint motion for return of certain confidential documents…

In essence, plaintiffs have contended the documents exchanged in discovery were wrongfully classified under the existing protective order and should be considered public in nature. Defendants, on the other hand, argue that they are confidential or highly confidential as defined in the protective order and should be returned. Continue reading “the pause that refreshes – all but five “confidential exhibits” declassified in Schafer v State Farm”

State Farm’s Protective Orders are Dispositive Motions in disguise – more games scheduled for the qui tam Olympics

Companies will soon learn that the best protection and defense against a potentially serious and morale lessening whistleblower suit is to have in place a corporate culture that emphasizes ethical conduct by all involved in the company.

In contrast to the opinion expressed in a lecture at the Brookings Institute, the dockets of Katrina litigation provide ample evidence that the corporate culture of State Farm is one that, instead, views a protective order as the Company’s best protection and defense.  At SLABBED we call the tactic gutting a case to settlement.  However, by any name,  the process begins with a protective order that consistently ends up disposing of so much evidence it effectively disposes of most plaintiffs’ Constitutional right to a jury trial and, in turn, either disposes of the case itself or forces settlement,.

SLABBED has published numerous posts documenting how the routine protective orders granted State Farm have repeatedly been used to shield damaging evidence of State Farm’s claims handling following Katrina. One such post quoted a plaintiff’s attorney who wrote:

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.

Discovery in a qui tam case, more than any other, should be transparent for the Relators stand in the place of the USA which in turn represents the public interest.  We the people, therefore, have a concomitant right to know.  Nonetheless, as SLABBED recently reported in Qui Tam Olympics – the protection game: ex rel Rigsby v State Farm, State Farm filed for a Protective Order seeking to limit the Rigsbys’ discovery. Counsel for the Rigsbys has now filed the Relators’ Response in Opposition :

State Farm asserts that the contested discovery requests “do not pertain to the McIntosh flood claim and amount to mere speculation by the Rigsbys of the type that has been condemned by this Court.” State Farm’s Motion at 6. In fact, the Relators have tailored carefully their discovery requests based on this Court’s August 10, 2009 Order…and  this Court’s related rulings in individual policyholder cases. Accordingly, all of the discovery sought by the Relators seeks information that may lead to admissible evidence regarding whether the Defendants submitted a false claim with respect the McIntosh flood claim. Continue reading “State Farm’s Protective Orders are Dispositive Motions in disguise – more games scheduled for the qui tam Olympics”

Qui Tam Olympics – the protection game: ex rel Rigsby v State Farm

Qui Tam Olymics – Defendants’ games pit Judge Vance (Branch) against Judge Senter (Rigsby) introduced the interplay between the Rigsby and Branch qui tam defendants.  The name of the Olympic event currently taking place in Judge Senter’s Mississippi courtroom is the Protection Game –  State Farm hardball versus the Rigsby sisters.  The next post in this series will cover the protection game going on in ex rel Branch over in Louisiana before Judge Vance – hopefully by then I’ll have mastered whatever trick is needed for the slides to run as a show!

[slideshare id=2931777&doc=theprotectiongame-100116212716-phpapp01]

What’s the score? 0 – 2 on tail-wagging-dog Protective Orders

Right of the bat, we’re going to find out if I cut my 7th inning stretch short.   Frankly, what I found when I later turned my attention to the docket of the day to check for any additions in cases SLABBED made me wonder if one day of reflection was going to be sufficient.

Magistrate Judge Parker pitched a Protective Order to State Farm in Lizana and Magistrate Judge Walker tossed the Company another in Montet .  Since it took Parker 2 (pages) to do what Walker did in 7, Parker is up first for examination:

State Farm has cited numerous cases within this jurisdiction, with facts and issues very similar to those involved in this matter, wherein protective orders have been entered with respect to the same types of information at issue here. As in those cases, State Farm has demonstrated good cause for the entry of a protective order and, accordingly, the motion will be GRANTED.

Walker said much the same, however:

The court, being duly advised in the premises, finds that good cause exists for the issuance of a Protective Order; therefore, it is ORDERED and ADJUDGED…

Now, a good portion of my 7th inning stretch was devoted to reflecting on “good cause” for a protective order in discovery.  I’ve observed that counsel for both parties in a case and the District Court “hang their hat” with the Fifth Circuit and, since I’m neither a lawyer nor an officer of the Court, I decided that I’d follow and hang mine on the 5th’s order quoted in the most recent SLABBED update on Montet which clearly states: Continue reading “What’s the score? 0 – 2 on tail-wagging-dog Protective Orders”

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. Continue reading “Condoms in the courtroom – State Farm wears protection, wants to %#!# you! EDITED”