A physician named Jalowsky was represented in an insurance bad faith case by lawyers who had received discovery in an earlier case from the current defendants, the Unum Group of insurance companies.
Dr. Jalowsky "intends to issue" a subpoena for the information from his own attorneys. However, the attorneys had received the information subject to a protective order, apparently a stipulated protective order, in the earlier litigation.
The order provided that the information could only be used in the earlier case. It is common for stipulated orders to have an "only-in-this-case" limitation on the use of evidence.
After discovery closed in the bad faith case, Dr. Jalowsky's lawyers asked Unum for permission to use the evidence in question in the bad faith case, a delay which was fatal in the eyes of the Magistrate Judge, as it turned out. We may never know what the result might have been if, as the Magistrate Judge suggested, the attorneys had carefully crafted a timely request for production of the same materials in the insurance bad faith case.
In any event, Unum refused Dr. Jalowsky's request to use the materials in question in his insurance bad faith case.
Rather, Unum filed a motion to quash the subpoena and for a protective order. To say again, the Court revealed that Jalowsky "intends to issue a subpoena" -- how and through whom, it is not clear from the opinion -- against his own attorneys for documentation they had gotten ahold of in the earlier litigation.
The U.S. Magistrate Judge quashed the subpoena and granted Unum's motion for (another) protective order. The material in question was subject to an order in the earlier case which limited the use of that material to that case, meaning the case in which the material was produced in the first place. There are no exceptions, said the Magistrate Judge in Jalowsky v. Provident Life & Acc. Ins. Co. and Unum Grp., No. CV 18-279-TUC-CKJ (LAB), 2020 WL 8184343, at *1 (D. Ariz. June 19, 2020) (USMJ).
Counsel for plaintiffs should exercise caution when entering into stipulations for secrecy: Their clients in later cases may be barred from using the evidence in their cases.
Counsel for defendants should be aware of the same thing.
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