This article springs from "An Unopposed Christmas Miracle in Pennsylvania," which was published here on December 20, 2017.
I noted in an article published on Insurance Claims and Bad Faith Law Blog on December 26, 2017, that I reviewed the electronic court file of a federal case in California on PACER. I have since reviewed that electronic court file even more closely, and the results are startling.
The case is Feller v. Transamerica Life Ins. Co., No. 2:16-cv-01378-CAS-AJW, filed in the U.S. District Court for the Central District of California. The issue is concealed evidence in this insurance case. The plaintiffs sued their life insurance company based on claims that their carrier overcharged them for premiums.
That fact should be kept in mind, or nothing wonderful can come of this story, to borrow a line from Dickens' A Christmas Carol. Made concrete and applied to this life-insurance-premium case, it clearly outlines the range of conceivable needs, if any, and of course desires for "redaction," "sealing," and secrecy, in short, for concealing the evidence.
The results of two searches on the electronic docket are revealing (no pun intended). The first of my searches that I want to report here was for the word, "stipulation." The word was found 48 times since the first document was filed 23 months ago on February 28, 2016.
That is an average of more than 2 stipulations per month.
The second of my searches that I want to report here was for the word, "seal." This search yielded 205 results. That means that the docket referenced 205 times when evidence was requested to be sealed, including of course many repetitions of the word, but still resulting in a total of 205 results.
Some of the things that were sealed either raise questions or are outright unknown except to the parties and perhaps to the District Judge or to the Magistrate Judge. Two examples, in turn, will be sufficient here to illustrate.
Document Number 136 is an Order Granting the Plaintiffs' Application (Motion) to File Documents and Deposition Under Seal That Defendant Has Designated as "Highly Confidential -- Attorneys' Eyes Only'," filed two days after the Plaintiffs apparently filed their Application. Download Gordon Feller v. Transamerica Life Ins. Co. Doc. No. 136 Order Granting Ps Application to F Docs and Depo Under Seal etc. F'd 10.12.16 (C.D. Cal. Case No. 2.16.cv.01378.CAS.AJW; s by USDJ). (Their Application did not actually have that revealing title according to the Clerk's electronic docket.)
The judge made one change, apparently. The District Judge crossed out the word, "PROPOSED," before she signed the Order.
There are no findings in the Order that the District Judge signed.
There are no recitals of fact in it at all.
There are no citations of legal authorities.
We know only from the Clerk's docket that the District Judge's Order sprang out of the Plaintiffs' Application. We cannot see this Application, however, because the public is not allowed to see it.
The Application is designated as Doc. No. 132 on the Clerk's electronic docket, filed October 10, 2016. It is not accessible. It is known only from the docket entry written by the Clerk.
To put it simply, among the many things we are not going to know from this, is what documents were sealed by this slice of the proceedings and what testimony was concealed from public view by this one motion and one Order among many.
In a case alleging not state secrets, but instead alleging overcharged-insurance-premiums-claims.
The second example from reviewing the electronic court file that illustrates the existence of questions concerning rulings and sealings, concerns the pleadings. This specific example relates to Doc. No. 149 on the Clerk's electronic docket, apparently filed on Halloween in 2016 after a pair of secrecy orders were entered.
This pleading is identified by the Clerk as the Plaintiffs' Memorandum in Support of their Renewed Application for Preliminary Injunction. This seems like pretty significant stuff, and it probably is. In their original motion for Preliminary Injunction, Doc. No. 131 filed 10.10.16, the Plaintiffs announced that they asked for a Preliminary Injunction in part on the basis of their Memorandum, naturally Download Gordon Feller v. Transamerica Life Ins. Co. Doc. No. 131 Ps Application for PI F'd 10.10.16 (C.D. Cal. Case No. 2.16.cv.01378.CAS.AJW).:
This renewed application is based on the accompanying memorandum of points and authorities, the declaration of Larry N. Stern and attached exhibits, the declaration of Andrew S. Friedman and attached exhibits, and such further and other evidence as may be presented at or before the hearing of this motion.
It should be noted that much of the other evidence cited in this motion is sealed.
So is the Plaintiffs' Memorandum in Support of their Renewed Application for Preliminary Injunction.
It is a pleading on which a judge is asked to rule in a case affecting the premiums paid to a life insurance company.
Still and all, we cannot see it. It too is sealed from public view.
Dennis Wall is continuing to work on a book based in part on investigations into public records of actual court files involving concealed evidence and how it affects our lives.
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HAVE A HAPPY NEW YEAR THROUGHOUT 2018!