Claims and Bad Faith Law Blog

FEDERAL JUDGES SURVEY THE OUTER BOUNDS OF SECRECY.

In Atlantic Specialty Ins. Co. v. Royal Alliance Assoc's, Inc., No. 23-CV-9555 (JGLC), 2023 WL 8600548 (S.D.N.Y. Dec. 12, 2023), a federal judge once again stretched the rubber band of secrecy farther than it will usually go.  To put it another way, the judge surveyed the outer bounds of secrecy in this insurance case.

          Royal Alliance Associates (sometimes also called "the Associates") is a brokerage.  It was issued a Securities Broker/Dealer Professional Liability Insurance primary policy.  Atlantic issued the Associates an excess policy.  The Associates made a claim for insurance coverage with Atlantic.  Atlantic sued for declaratory relief of no coverage for the amounts claimed by the Associates, i.e., of no coverage for the settlements that Royal Alliance Associates made with their investors-customers. 

    Two initially filed versions of Atlantic's complaint are inaccessible on PACER, the Public Access to (Federal) Court Electronic Records.   Ultimately, a redacted version of the complaint was made accessible to the public in this case.  See Atlantic Spec. Ins Co. v. Royal Alliance Assoc's, Inc., Complaint, DE 21 (S.D.N.Y. Case No. 23-CV-9555 (JGLC)).

          Royal Alliance successfully requested that the "names and amounts of the settlements" it made with its customers, for which it sought the insurance coverage from Atlantic, should be blacked out – in Atlantic's complaint.  After repeating the oft-repeated acknowledgement that complaints are "'the cornerstone of every case,'" and after restating that the public presumption of access is protected both by the common law and by the First Amendment to the United States Constitution, the Court in this case equated "'the sealing of settlement negotiations materials'" with the names and amounts of the resulting settlements.  In other words, the Court confused the process with the results.

          The Court granted the motion to redact from Atlantic's complaint with respect to, among other things,  the names and amounts of the settlements that the Associates made with their broker-customers including in Financial Industry Regulatory Authority (FINRA) arbitrations, for which the Associates now seek insurance coverage from Atlantic.  No cornerstone here, no presumption this.  No access either, at least not by the public in this case.

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

REFUSING TO SILENCE THE CONTRACT PROVISIONS IN AN INSURANCE CASE.

In Polcom USA, LLC v. Affiliated FM Ins. Co., No. 20 Civ. 9206 (NRB) & 22 Civ. 0092 (NRB), 2023 WL 5573871 (S.D.N.Y. Aug. 29, 2023), an insurance case. unidentified parties (it is unclear who) apparently tried to seal "provisions in the parties' contracts[.]"  Polcom, 2023 WL 5573871, at *2n.3.  The Court resolved the "sealing" controversy here by telling the parties either to resubmit without sealing or not to resubmit at all.

Section 2:18 by the author in Volume 1 of Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters (Thomson Reuters Nov. 2023 Ed.), addresses Post-Claims Handling Practices Issues—The Presumption of Public Access vs. Stipulated Secrecy Orders.

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

"SHARING CLAUSES" AVOID DUPLICATIVE DISCOVERY, REQUIRE SHOWING.

There is a recognized exception to the usual prohibition on sharing discovery in one case with other cases.  That exception concerns "sharing clauses" written into stipulated protective orders and authorized by the courts.

Federal courts disfavor sharing clauses.  This observation was made by a U.S. Magistrate Judge in a case in which she refused to authorize a sharing clause.  SRH Holdings, LLC v. Gov't Emp's Ins. Co., No. 23-10325-DJC, 2024 WL 51279, at *1 (D. Mass. Jan. 4, 2024) (Boal, USMJ).  The Court noted that so far, courts have allowed sharing clauses only when the party seeking to share has made a showing that the discovery in question is "highly relevant to other litigation,"  i.e., sharing the discovery among different cases would avoid duplicative discovery and "would promote efficiency, minimize discovery costs, and conserve judicial resources."  SRH Holdings, 2024 WL 51279, at *1.

This deserves further attention in future cases.

Section 2:18 by the author in Volume 1 of Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters (Thomson Reuters Nov. 2023 Ed.), addresses Post-Claims Handling Practices Issues—The Presumption of Public Access vs. Stipulated Secrecy Orders.

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

SEALING PREVIOUS SETTLEMENT AMOUNTS IN INSURANCE CASES AS "NEGOTIATIONS MATERIALS."

In a recent decision, a federal judge new to the bench in the Southern District of New York granted a defendant's motion to redact parts of the plaintiff's complaint because the plaintiff's allegations included the names, amounts, and "details regarding the negotiation" of settlements between the defendant and "its customers[.]"  Atl. Spec. Ins. Co. v. Royal Alliance Assoc's, Inc., No. 23-CV-9555 (JGLC), 2023 WL 8600548, at *1 (S.D.N.Y. Dec. 12, 2023).

The federal judge in New York effectively ruled that everything about those settlements was confidential, and granted the defendant's motion:

Accordingly, confidential information contained in settlement agreements between Royal Alliance and its customers, including the amounts of the settlements and the counterparties thereto, as well as details regarding the negotiation of these settlements, may be properly redacted.

Atlantic Specialty Insurance Co., 2023 WL 8600548, at *2.  (Although the federal judge did not say so, access to the unredacted portions of the complaint on PACER reveals that this is a "DJA" or declaratory judgment action over insurance coverage.)

In a decision more than a decade earlier, a federal judge who has been on the bench since President George W. Bush appointed her to the Southern District of California made a more surgical decision.  The federal judge in California approved a Magistrate Judge's decision to deny a defendant's motion to seal or alternatively to redact a settlement conference transcript allegedly "containing the terms of the parties' settlement."  Platypus Wear, Inc. v. Utd. States Fid. & Guar. Co., No. 09CV2839 JLS (WVG), 2010 WL 4281805, at *1 (S.D. Cal. Oct. 25, 2010).  The plaintiff in that case did not oppose the defendant's motion but the Court denied the motion anyway.

The Magistrate Judge viewed the defendant's motion as an attempt "to insert, after-the-fact, a confidentiality provision into the parties' recitation of the terms of the settlement[.]"  Platypus Wear, Inc. v. Utd. States Fid. & Guar. Co., No. 09-2839-JLS (WVG), 2010 WL 4055540, at *3 (S.D. Cal. Oct. 15, 2010) (Gallo, USMJ).  Ten days later, the District Judge in California issued her opinion affirming the Magistrate Judge and going one step further.

The District Judge in California distinguished settlement discussions from settlement terms, a distinction that the District Judge in New York failed to make:

          In making its argument to seal the transcript containing settlement terms, Defendant conflates settlement discussions with final settlement terms. Failing to differentiate between the two results in an unsettling conclusion....

          The Court recognizes the importance of confidentiality in settling disputes. But the Court also differentiates between confidentiality necessary for settlement negotiations and confidentiality of settlement terms. The Local Rules and public policy speak to the settlement negotiation process. That process is not at issue here. Instead, Defendant requests the Court to seal settlement terms. And for that request, the Court begins with a strong presumption in favor of access.  [Citation omitted.]   Defendant has failed to provide the Court with reasons to overcome the presumption. Instead, Defendant focuses on Local Rules and public policy, both of which are inapposite in this situation.

Platypus Wear v. U.S.F.&G., 2010 WL 4281805, at *2.

As a practitioner, I often argued that the amounts of previous settlements should be kept secret.   From an objective point of view today, I cannot find any justification for keeping names and amounts of previous settlements away from the public in every case, as the federal judge in New York seems to have done.

Rather, there is a clear distinction between settlement discussions and settlement terms which would necessarily include amounts, of course, in terms of the level of protection, if any, afforded one or the other, as the federal judge in California recognized.    The distinction is crucial when secrecy is demanded in opposition to the constitutional and common law presumptions of public access to documents filed with the courts.  This is particularly true where the court-filed documents contain requests for judges and juries to review the documents or the information in them, and make decisions accordingly.

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

CONFIDENTIALITY OF INSURANCE RATES DESPITE FILED RATE DEFENSE

ONE OF THE MANY ORDERS OF DECEMBER 14, 2023

The Court issued many Orders on December 14, 2023 in a single insurance case.  The case is of interest because the defendant raised a defense of "a filed insurance rate doctrine" to claim immunity from civil prosecution.  In turn, one of the Orders of December 14, 2023 is of interest because it effectively sealed the rates from  public view.  The decision is reported as Benanav v. Health Paws Pet Ins. LLC, No. 2:20-cv-00421-LK, 2023 WL 8648962 (W.D. Wash. Dec. 14, 2023), and it stands at DE 237 on the PACER electronic docket of that case.

          In order to understand this particular ruling, context is required, as is usual in litigation. 

THE SPREADSHEET IS SEALED

Relatively early on in the case, an Exhibit E that was filed in the Court file was filed under seal.  That was in August, 2022.

          On February 6, 2023 the Court ordered that Exhibit E be kept under seal.  We would later find out in December, 2023 that this Court understands a distinction in the tests for sealing and unsealing documents in a Court file:  "Compelling reasons" specifically set forth in order to seal Court filings v. "good cause" "when the documents are only tangentially related to the merits."  Benanav, 2023 WL 8648962, at *2.

          In its February Order granting Healthy Paws' motion to keep Exhibit E, the Insurers' spreadsheet, under seal, the Court ruled that "[b]ecause Exhibit E was submitted with a discovery motion that is only tangentially related to the merits, a good cause standard applies."  Benanav v. Healthy Paws Pet Ins. LLC, No. 2:20-cv-00421-LK, 2023 WL 1778830, at *2 (W.D. Wash. Feb. 6, 2023).  In the next sentence, the Court also said that it "finds that the Insurers have made a sufficient, particularized showing of good cause," id., which sounds confusingly like the "compelling reasons" standard.

          Even if the more difficult standard of "compelling reasons" was at work here,  there were compelling reasons specifically set forth in order to seal the spreadsheet filed in the Court file of this particular insurance case.

COMPELLING REASONS, SPECIFICALLY SET FORTH, TO SUPPORT KEEPING THE INSURERS' SPREADSHEET SEALED

A declaration of one Nicholas Gatt, dated August 1, 2022, was filed in support of Healthy Paws' motion to keep Exhibit E under seal.  Download Benanav v. Healthy Paws Pet Ins. LLC Declaration of Nicholas Gatt dated 08.01.22 DE 96 filed 08.01.22 (W.D. Wash. Case No. 2.20.cv.00421.LK)  Mr. Gatt was the COO of the Programs under which non-party Insurers issued insurance policies through the sole defendant, Healthy Paws Pet Insurance, LLC.  Exhibit E was actually filed by Healthy Paws under seal.  We do not learn it from the Court's Order, but Exhibit E is a spreadsheet put together by the Insurers.

          The spreadsheet put together certain information regarding what the Insurers called their "base rates," meaning in simple terms the foundational or rock-bottom rates which were adjusted depending on how a range of factors were applied.  The factors to be applied were presumably unique to each risk or applicant for insurance.  Declaration of Nicholas Gatt, dated August 1, 2022, DE 96 at ¶ 5.  Download Benanav v. Healthy Paws Pet Ins. LLC Declaration of Nicholas Gatt dated 08.01.22 DE 96 filed 08.01.22 (W.D. Wash. Case No. 2.20.cv.00421.LK)

          "Because of the pricing information contained in the document, as well as the unique manner in which it is compiled," the Insurers held the document confidentially (although of course they shared it with Healthy Paws, presumably among others) and declared that the spreadsheet is "competitively sensitive."  Id., ¶ 6 (emphasis added).  If other pet insurers accessed this document, they might gain "a competitive advantage in pricing and marketing their policies against the Insurers' policies."  Id.

           This is because, Mr. Gatt testified in his declaration, "[i]f the Insurers’ competitors in the pet insurance industry were to obtain the data in the document compiled in this fashion, they could use the base rate data which they do not ordinarily have access to for the purpose of developing a strategy to market competing products against the Insurers, including by undercutting the Insurers on pricing in these markets."  Id., ¶ 7 (emphasis added).

          And so the Court kept the spreadsheet under seal as it had been since the date it was filed.  A visit to the PACER docket entry for this spreadsheet is futile; the document is inaccessible because it is under seal.

THEN THEY CAME FOR THE BASE RATES REGARDLESS OF THE SPREADSHEET

That all happened as of February.  In December, Healthy Paws and the Insurers asked the same judge to seal the base rates information that they themselves filed in other documents in the Court files.  It will be recalled that in this case, the defendant also raised the filed insurance rate defense as a reason for it, the defendant, to enjoy immunity from being sued in this case.

          In February, the Court had ruled that the Insurers' spreadsheet should be kept sealed because "the Insurers have made a sufficient, particularized showing of good cause to keep Exhibit E [the Insurers' spreadsheet] under seal because it contains their sensitive business information that could be used unfairly by competitors to harm their business interest."  Benanav, 2023 WL 1778830, at *2.

           In December, the Court's focus was seemingly no longer on harm to the business interest of the Insurers, but instead on harm to the business interest of Healthy Paws.  In its December ruling, the Court ruled as to other Exhibits filed in the Court file that, regardless of the way in which those documents presented or configured the information, "Healthy Paws has made a sufficient, particularized showing to keep those documents under seal because the sensitive financial information therein could be used unfairly by competitors to harm its business interests."  Benanav, 2023 WL 8648962, at *4.

          The net result by December, 2023 seems to be that Healthy Paws gets to raise its defense of immunity because its rates were filed, but no-one will be allowed to figure out how those rates were calculated and why.  So long as Healthy Paws' Insurers, or Healthy Paws itself depending on whether one reads the February Order or the December Order, "could" be harmed by business competitors, the information about base rates will simply not be disclosed.  If no-one else will be permitted by these rulings to figure out how it came to be that the plaintiffs were charged the insurance rates that they were charged, the only evidence at trial that any party can possibly present, presumably in open Court for the world to hear and see, is apparently just that the insurance rates at issue were filed.

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

SUNSHINE WEEK CONTINUES! AND WE HAVEN'T FORGOTTEN YOU, MS. MOODY.

(Gridview_imagefull / FDAC)

In Wiens Capital Mgt., LLC v. Advocate Consulting Legal Grp., PLLC, No. 2:23-cv-81-SPC-KCD, 2023 WL 2435806 (M.D. Fla. Feb. 16, 2023) (USMJ), a U.S. Magistrate Judge faced a motion "to seal a portion of the disclosure statement required by Federal Rule 7.1 and Local Rule 3.03 that lists the identities of the individual members of Wiens Real Estate Ventures, LLC[.]"  Wiens Capital Management, 2023 WL 2435806, at *1.  Ventures was the sole member of Management, the plaintiff that filed this lawsuit.  Wiens Capital Management, 2023 WL 2435806, at *1.

The Magistrate Judge denied the motion.  The people who requested secrecy from public view failed to overcome the presumption of public access.  In short, the identities of these people are in the sunshine now.  What a positive ruling to report for Sunshine Week in Florida!

Ms. Ashley Moody, we have not forgotten your self-stated "vow to safeguard" Florida's Sunshine Laws.  Nice words, those.  You did not have to say them, in fact, you did not have to say them for years whenever Sunshine Week rolls around.  What say you now about people who do not comply, such as the Florida governor?  The people of Florida deserve more than crickets from you, Ms. Moody, especially since you said a vow (to safeguard, no less) that you offered up voluntarily.  See Sunday's article published on our sister blog, IT'S THE FIRST DAY OF SUNSHINE WEEK IN FLORIDA!

Make your vows over the years to safeguard Florida's Sunshine Laws more than press releases, Ms. Moody.  Make them real.  

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

Ocasio v. C.R. Bard: READING THE LOCAL RULES ONE YEAR LATER.

Ocasio v. C.R. Bard, Inc., No. 8:13-cv-1962-CEH-AEP, 2021 WL 2477259 (M.D. Fla. June 17, 2021) was decided on June 17, 2021.

Three were 7 lawyers of record by my count.  Four were from outside Florida.  These 4 were obviously the lead counsel and the remaining lawyers apparently served as local counsel.

The decision in this case by Judge Honeywell was to deny unopposed motions of the plaintiffs and of the defendants to seal certain deposition transcripts.  The parties jointly requested the Court to seal “53 deposition transcripts that the parties intend to play at trial.”  Ocasio, 2021 WL 2477259, at *1.

The Court denied this unopposed joint request to seal testimony for several reasons.

First, the defendants represented to the Court that sealing the entire set of 53 deposition transcripts was the narrowest method they knew of keeping proprietary information confidential.  Judge Honeywell’s answer was that “the Court finds this blanket statement to be unsupported and improbable.”  Ocasio, 2021 WL 2477259, at *2.

Next, the parties proposed to read or play the depositions “in open court and thus the matter will not be kept confidential from any member of the general public attending the trial.”    Ocasio, 2021 WL 2477259, at *2.

Third, the fact that the parties declared these transcripts to be confidential did not by itself make them confidential.  Ocasio, 2021 WL 2477259, at *2.

In short, for all these reasons the parties did not jointly show “good cause” and they did not in their unopposed motions overcome the presumption of public access to these documents.  Ocasio, 2021 WL 2477259, at *2.  But none of these reasons was the main reason for decision here.

The most important reason for denying the parties’ joint unopposed motions to seal was that they apparently did not read Middle District of Florida Local Rule 1.11(a).  Whether they read it or not, they obviously did not follow it.  If they had, they might have succeeded.  Local Rule 1.11(a), relied on by the Court as a basis for its Order, provides in full as follows:

Rule 1.11 - Filing Under Seal in a Civil Action

• PUBLIC RIGHT OF ACCESS. Because constitutional law and common law afford the public a qualified right of access to an item filed in connection with the adjudication of a claim or defense, sealing is unavailable absent a compelling justification. Sealing is not authorized by a confidentiality agreement, a protective order, a designation of confidentiality, or a stipulation.

M.D. Fla. Local Rule 1.11(a) (emphasis added).

The lesson for practitioners is pretty well summarized (if I do say so myself) in the title of my Letter to the Editor about the Ocasio v. C.R. Bard decision, published in the August 1, 2021 edition of The Florida Bar News:  Read The Local Rules.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

ELECTRONICALLY STORED INFORMATION (ESI), AMAZON, AND MODEL ORDERS.

In Crosby v. Amazon.com, Inc., No. 21-1083-JCC, 2022 WL 522953 (W.D. Wash. Feb. 22, 2022), the plaintiffs successfully challenged the use of a U.S. District Court's Model Agreement And Proposed Order, and lived to tell the tale.

The plaintiffs challenging Amazon in the Crosby case are individuals.  They could not agree with Amazon on what a court order should say to regulate the production and handling of Electronically Stored Information (ESI) in that case:

The parties have been unable to come to an agreement whether to adopt, without modification, the District's model agreement governing Rule 34 production of electronically stored information (“ESI”). See [MODEL] AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND [PROPOSED] ORDER, available at https:// www.wawd.uscourts.gov/court-forms.

Crosby v. Amazon.com, 2022 WL 522953, at *1.

The District Court granted the plaintiffs' motion to modify the Western District of Washington's Model Agreement and Proposed Order, in part.  At the plaintiffs' request, the Court added ten additional search terms and granted the plaintiffs' request for an "expanded timeframe."  Crosby v. Amazon.com, 2022 WL 522953, at *1.

The rest of the plaintiffs' requests were denied.  Thereafter, the Court entered a detailed order accordingly, see Crosby v. Amazon.com, 2022 WL 522953, at *2-*5, during the course of which the Court set forth a compelling justification for its actions:

1. General Principles

1. An attorney's zealous representation of a client is not compromised by conducting discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions.

Crosby v. Amazon.com, 2022 WL 522953, at ¶1, p. *2.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

THE CONSTITUTION PRESUMES THAT THE PUBLIC CAN ACCESS COURT DOCUMENTS!

I welcome the invitation of the American Constitution Society and Barry Law School to speak at the Seventh Annual Constitutional Law Scholars Forum on Friday, February 25th.  I will be speaking about the Constitution's Presumption of Public Access to Court Files.  The Forum is presented free and online this year, as it was last year.

Join the Forum online!  The Forum is being broadcast from Barry Law School in Orlando, here!  It's free and open to everyone!

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

PUBLIC ACCESS TO COURT RECORDS PROTECTED BY THE U.S. CONSTITUTION!

I am grateful to the American Constitution Society and to Barry Law School for their invitation to speak at the Seventh Annual Constitutional Law Scholars Forum.  I will be speaking on Friday, February 25th about the Constitution's Presumption of Public Access to Court Files.  The Forum is presented free and online this year, as it was last year.

Join the Forum online!  The Forum is being broadcast from Barry Law School in Orlando, here!  It's free and open to everyone!

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

GENERAL OBJECTIONS IGNORED, COURT'S STANDARD STIPULATED PROTECTIVE ORDER OBSERVED.

Once again, general objections repeated endlessly in reply to specific discovery requests are not responses at all.  Stated differently, general objections are not given any attention by the courts whenever specific objections to discovery requests are required by the applicable rules.  See Dyno Nobel, Inc. v. Johnson, NO. 5:21-cv-00322-KKC-MAS, 2022 WL 507431, at *3 (E.D. Ky. Feb. 18, 2022) (Stinnett, USMJ).

Dyno was requested to produce documents in this Kentucky case that were subject to a federal court's standard stipulated protective order in use by the federal court where litigation is pending in Utah.  In this case, the Utah protection was provided in Kentucky as well.  Dyno Nobel, 2022 WL 507431, at *5.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

DISCOVERY CONFIDENTIALITY WEBINAR TOMORROW!

It's a real joy and an honor to be invited to moderate the National Association of Consumer Advocates Discovery Confidentiality Webinar on Tuesday, February 22nd.  The Webinar has a fine, experienced panel that will address confidentiality orders used in litigation, Ariana J. Tadler and Jody Thomas Lopez-Jacobs.  NACA vets attendees at its Webinars, so Email [email protected].  It's an exciting opportunity to share experiences and education!
 

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

JOIN THE ONLINE ACS CONSTITUTIONAL LAW FORUM ON FEBRUARY 25!

Honored to accept the invitation to speak on February 25 at the American Constitution Society's Seventh Annual Constitutional Law Scholars Forum.  I will be presenting on the Constitution's Presumption of Public Access to Court Files.

Join the Forum online at Barry Law School in Orlando, here!  It's free and open to everyone!

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

DURHAM DISCLOSURES.

Durham disclosures.  They may not be what you think.

On February 11th, Mr. Durham's office filed his Motion to Inquire Into the defense attorneys' Potential Conflicts of Interest.  U.S.A. v. Sussman, Motion, Doc. 35, filed Feb. 11, 2022 (D.C.D.C. Criminal Case No. 21-582 (CRC)).  It alleged dozens of times that the defense attorneys may have had "potential" and "possible" conflicts of interest that would disqualify them as counsel in the case.

Now any attorney that has filed a motion to disqualify opposing counsel, and I have, knows very well that the way to go is to file a motion to disqualify and meet your burden of proof.  If you cannot meet your burden of proof, you do not file a motion to disqualify opposing counsel.

Mr. Durham's office did not file a motion to disqualify opposing counsel.

The motion they filed is a distraction.  It is a distraction from Mr. Durham's previous filings that prosecuted the case against Mr. Sussman, if any, in motions allegedly filled with innuendo and deception.   This one does not cite cases that support any of the "potential," "possible" alleged conflicts of interest.

One case citation does have a glaring typo, however, that proofing would have found if the motion had been proofed.  Even a computer spell check would have picked up this one.  But perhaps this motion that was filed in federal court and submitted to a federal judge should not, in the end, be remembered for a typo in a case citation by a lawyer.  

There may be more to remember than that.  The prosecutor in Mr. Durham's office that signed this motion is one of a team of prosecutors that a federal judge says withheld evidence in another case.  The federal judge, the Hon. Alison Nathan, is a highly respected federal judge, appointed before January 20, 2017.  The federal judge wrote of Mr. Durham's current assistant that "repeated failures to disclose exculpatory evidence and misuse of search-warrant returns" were errors "so severe that following a jury verdict in [the Government's] favor," both parties requested the Court to vacate the jury verdict.  The Court "vacated the jury verdict and dismissed the charges" with prejudice.  USA v. Nejad, Order, Doc. 397, at 1, filed Feb. 17, 2021 (S.D.N.Y. Case No. 18-cr-224 (AJN)).  Download USA v. Nejad Order Doc.. 397 filed 02.17.21 (SDNY No. 18-CR-224 (AJN))-prosec-misconduct-opinion.

In the same Order, Judge Nathan urged "a full investigation by DOJ's Office of Professional Responsibility of all matters related to prosecutorial misconduct in this case."  Id. at 2.

After entering the February 17 Order, Judge Nathan entered another Order on the same date.  The second Order was filed on Feb. 22, 2021.  The Judge ordered that the prosecutors file declarations (affidavits) explaining their conduct and the prosecutors requested that their testimony be kept a secret.  See USA v. Nejad, 521 F. Supp. 3d 438 (S.D.N.Y. 2021).

Back to February of 2022.  Mr. Durham told the Court in his prosecution against Mr. Sussman that he, Mr. Durham, "would make future filings under seal if they contained 'information that legitimately gives rise to privacy issues or other concerns that might overcome the presumption of public access to judicial documents.'"  Charlie Savage, Durham Distances Himself From Right-Wing Falsehoods, NEW YORK TIMES, Friday, Feb. 18, 2022, at A18.

There you are:  Durham disclosures.   

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.