In Dye v. Omni Hotels Mgt. Corp., NO. 3:23-CV-692-WWB-PDB, 2024 WL 4170144 (M.D. Fla. Sept. 12, 2024) (Barksdale, Patricia D., USMJ), the sealing of Exhibit 4 is something that concerns us even though this is not an insurance bad faith case. Here’s why it is of concern to us who practice in insurance bad faith cases.
Exhibit 4 is the defendant's “Loss Prevention Standard, Water Management Plan, and Operational Standard for Swimming Pool/Spa & Decorative Fountain.” S-Docs. 28-4/30-3.
Dye, 2024 WL 4170144, at *2. The injured plaintiff filed this exhibit to establish that the defendant hotel failed to keep the area where the plaintiff was injured “’free of hazards’” and that the defendant’s policies were “’deficient’” in any case.
The plaintiff filed Exhibit 4 under seal because he had to, given his apparently stipulated protective order with the defendant, a usual provision of which is that if there is a contest over confidentiality, then the party seeking to have the “confidential” label removed must file the document under seal with an appropriate motion.
In this case, the defendant hotel also filed a motion to seal Exhibit 4. The Court revealed why Exhibit 4 is so important to the hotel when it noted that “Exhibit 4 contains the defendant's confidential and proprietary internal guidelines, which are not available to the public. Doc. 35 at 2; Doc. 36 at 5.” Dye, 2024 WL 4170144, at *2.
The Court granted the motions to keep Exhibit 4 under seal but pointed out that if the document was introduced into evidence at trial, the seal would be removed. Dye, 2024 WL 4170144, at *2.
Similarly, if a defendant insurance carrier should succeed in keeping its own “confidential and proprietary internal guidelines” a secret under seal in any given case, should it establish any, then they too would be subject to public access if they were introduced at trial. That might conjure up images of winning the battle during discovery but losing the war at trial.
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