This new article is drawn from research for the manuscript of the 2020 Supplement of LITIGATION AND PREVENTION OF INSURER BAD FAITH, which I have just completed:
The requirement of establishing "good cause" for secrecy was addressed by a recently written provision of a Stipulated Protective Order submitted for signature in a federal court case. The parties and their lawyers offered the Court their own interpretation of what is and what is not "good cause."
The so-called good-cause statement in this proposed order was written by an insurance carrier and the individual plaintiff suing it, in Zehtab v. Principal Life Insurance Co., No. 8:19-CV-01649-JLS-KES, 2020 WL 2079987, at *1 (C.D. Cal. April 30, 2020). Their joint stipulation was clearly an attempt to base all future determinations of "good cause" for secrecy in that case exclusively or primarily on the good intentions of the parties and their lawyers in that case. (Their proposal also reflects several attempts, one or two for each side in a negotiated agreement, as it were, to stretch the secrecy protection to things not ordinarily deemed worthy of protection under the Constitution and rules.)
For ease of reference, I have highlighted the significant assertions in the "good cause" provision of this agreed secrecy order:
B. GOOD CAUSE STATEMENT
The parties anticipate producing certain confidential documents or information in connection with discovery in this matter. Such confidential and proprietary materials and information consist of, among other things, confidential business information, information regarding confidential business practices, or other commercial information, information otherwise generally unavailable to the public, or which may be privileged or otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses of such material in preparation for and in the conduct of trial, to address their handling at the end of the litigation, and serve the ends of justice, a protective order for such information is justified in this matter. It is the intent of the parties that information will not be designated as confidential for tactical reasons and that nothing be so designated without a good faith belief that it has been maintained in a confidential, non-public manner, and there is good cause why it should not be part of the public record of this case.
Zehtab, 2020 WL 2079987, at *1 (emphasis added).
Like many other stipulated protective orders, this one appears to have been entered by the Court without change from what the parties wrote. For one thing, the Westlaw report ends with a California-required "Proof of Service" by one of the lawyers in the case. Zehtab, 2020 WL 2079987, at *8. For another, there is not even a signature line for the Judge, although the parties' proposed Stipulated Protective Order does recite that "FOR GOOD CAUSE SHOWN, IT IS SO ORDERED." Zehtab, 2020 WL 2079987, at *7.
Please read the disclaimer. This blog article ©2020 Dennis J. Wall. All rights reserved.
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