In Wright v. State Farm Fire & Casualty Co.,[1] the policyholders filed two motions to seal. Both were unopposed. That might set you to thinking that granting the two unopposed motions would be automatic. If you thought that, you would be wrong.
In this case, the policyholders’ motions to seal related to “several documents cited in their briefing [that] are covered by the parties’ stipulated protective order and should therefore be filed under seal.” The Local Rules of the Western District of Washington where this action is pending, incorporate the “strong presumption of public access to the court’s files.” To overcome this strong presumption, “a party seeking to file a document under seal must provide ‘[a] specific statement of the applicable legal standard and the reasons for keeping a document under seal, including an explanation of’ specific factors. LCR 5(g)(3)(B).”[2]
In the Wright case, the policyholders, the Wrights, were of course the parties “seeking to file a document under seal,” but they only provided a statement that State Farm had designated the documents in question “confidential” under a Stipulated Protective Order.
In the ordinary course of litigation, then, the Wrights’ motions to seal should simply have been denied because they did not provide the required specific statement in order to seal the documents. But that is not what the Court in this case did. Instead, this Court shifted the burden of proof entirely to the party claiming confidentiality, in this case, State Farm:
The Court does not reach the question of whether the presumption of public access has been overcome here. The Wrights seek to file the documents at issue under seal because State Farm “has designated [them] as confidential during discovery.” See LCR 5(g)(1)(A). Thus, to the extent State Farm wishes to maintain the confidentiality of these documents, it bears the burden of satisfying LCR 5(g)(3)(B).[3]
It appears to be a rule in the process of being established, if it is not in fact already an established rule in insurance and non-insurance cases alike, that the party actually seeking confidentiality in a given case is the party that bears the burden of proof on the confidentiality issue:
While Plaintiff technically constitutes the moving party for this Motion, where “a party moves to file material under seal because another party has designated that material as confidential, the party designating the material as confidential must file a response to the motion complying with requirements [around providing statements why sealing is necessary and references to the governing case law].” E.D. Va. Civ. R. 5(C). In light of Defendant’s designation of the relevant materials, and in accordance with Local Civil Rule 5, the Court finds that Defendant constitutes “the party seeking to restrict access” and therefore bears the burden to overcome the First Amendment right of access in this case. Va. Dep’t of State Police [v. Wash. Post, 386 F.3d 567] at 575 [(4th Cir. 2004)].[4]
This was exactly the approach taken by the Federal Trade Commission in recent litigation, such as in Federal Trade Commission v. Amazon.com Inc. in the Western District of Washington,[5] discussed in DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:107.50 and which of course is the same Court as the Court in which the Wright decision was issued, and such as in Federal Trade Commission v. U.S. Anesthesia Partners., Inc.[6]
[1] Wright v. State Farm Fire & Cas. Co., No. 2:23-cv-179, 2024 WL 4979849 (W.D. Wash. Dec. 4, 2024).
[2] Wright, 2024 WL 4979849, at *4.
[3] Wright, 2024 WL 4979849, at *4 (emphasis added).
[4] Mission 1st Grp., Inc. v. Mission First Solutions, LLC, No. 1:23cv1682 (DJN), 2025 WL 864278, at *2 n.2 (E.D. Va. March 19, 2025).
[5] Fed. Trade Comm’n v. Amazon.com Inc., (W.D. Wash. No. 2:23-cv-01495-JHC).
[6] Fed. Trade Comm’n v. U.S. Anesthesia Ptrs., Inc. (S.D. Tex. No. 4:23-cv-03560). The FTC v. U.S. Anesthesia Partnes case is discussed at greater length in Volume 2, id., §§ 9:28.50 and 9.30.
Case law on the issues discussed in this article is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:107.50, and in Volume 2 in §§ 9:28 & 9:30 (Thomson Reuters West Publishing Co., with 2025 Supplements in process).
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