Stipulations have recently taken over much of litigation. Agreements are reached in lieu of discovery which keep the evidence secret. In some cases, secrecy stipulations even provide that documents and testimony in other cases will remain secret if filed in the current litigation.
Secrecy Stipulations
One decision which illustrates the point came in the non-catastrophic claims case of Cabrera v. Government Employees Insurance Co.[1] That case involved an alleged class action against Government Employees Insurance Co. (“GEICO”) and Bell, LLC (“Bell”). The substantive claims consisted of alleged violations of the Telephone Consumer Protection Act.
The defendant Bell objected to certain discovery with this trade secrets objection:
Defendant’s processes are proprietary processes that have independent commercial value and are not generally known. They are trade secrets.[2]
The Court overruled these “summary statements.” These objections were held insufficient both to establish confidentiality and to demonstrate that disclosure would be harmful, which are the twin burdens of proof in successfully establishing a trade secrets objection.[3]
Even though this ruling is squarely in the mainstream of discovery law of discovery which requires trade secrets and other objections to be stated with particularity,[4] and when necessary to be established by proof such as the trade secrets objection, this is not the norm of legal rulings followed by courts in cases with secrecy stipulations filed by the parties.
[1] Cabrera v. Government Emp’s Ins. Co., 2014 WL 2999206 (S.D. Fla. July 3, 2014)(Seltzer, Chief U.S.M.J.).
[2] Cabrera v. Government Emp’s Ins. Co., 2014 WL 2999206, *9 (S.D. Fla. July 3, 2014)(Seltzer, Chief U.S.M.J.).
[3] See Cabrera v. Government Emp’s Ins. Co., 2014 WL 2999206, *9 (S.D. Fla. July 3, 2014)(Seltzer, Chief U.S.M.J.).
[4] See generally Dennis J. Wall, “Conditional and Other ‘Nonspecific’ Objections to Discovery Are No Objections at All in an Insurance (or in Any Other Case),” 33 Ins. Lit. Rptr. 437 (2011).
Reprinted with the permission of Thomson Reuters West from the manuscript of the author's 2015 Supplement chapters in “Catastrophe Claims: Insurance Coverage for Natural and Man-Made Disasters” ©2015 by Thomson Reuters West.
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