Travelers Property Casualty Company of America v. Clear Blue Insurance Company

Nature of the Order

The court entered a stipulated confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). The parties requested protection for nonpublic and competitively sensitive information that might be disclosed during damages discovery. The court found good cause for an appropriately tailored order governing the pretrial phase of the action.

Information Covered

The order covers damages-discovery material designated as “Confidential.” A producing party may designate only material it reasonably and in good faith believes falls within specified categories, including:

- material protected by attorney-client privilege or work-product protection in connection with the identified underlying state-court action; - defense counsel, consultant, vendor, and expert rates, fees, and retainers connected with that action; - audits of those charges; - personal or intimate information about an individual; and - other information the court later gives confidential status.

A producing party must clearly mark the protected material and provide a version with confidential information redacted for future public use. The producing party may later designate material that was initially produced without a confidentiality designation by notifying prior recipients in writing.

Disclosure Limits and Permitted Recipients

Recipients generally may not disclose confidential damages-discovery material except as the order permits. Permitted recipients include the parties, subject to a stated restriction on certain Clear Blue employees and representatives; counsel retained for this action and their staff; mediators or arbitrators; people identified on a document as its author or recipient; potential witnesses; experts and other people providing specialized advice; and the court and its personnel.

Mediators, arbitrators, potential witnesses, experts, and specialized advisers must first receive the order and sign a nondisclosure agreement. Counsel must retain those agreements and produce them to opposing counsel before the person testifies or when the case concludes, whichever comes first.

Court Filings, Challenges, and Use

A party filing confidential material must publicly file a redacted version and file the unredacted version under seal. A sealing request must include a letter brief and supporting declaration that specifically justify continued sealing. The order states that the court may unseal material if the required findings for sealing cannot be made and that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation before trial by giving written notice stating the grounds with particularity. A party may also request additional disclosure limits, such as attorneys’-eyes-only treatment in extraordinary circumstances. Unresolved disputes are to be presented to the court under its individual practices.

Confidential material may be used only to prosecute or defend this action and any appeals, not for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privilege, or protection, and it does not decide whether evidence is admissible at trial.

End of the Case and Enforcement

Within 60 days after final disposition, including appeals, recipients generally must return or destroy the confidential material and certify that they have not retained copies or other reproductions. Counsel specifically retained for the action and the parties may keep archival copies of specified case materials, but those copies remain subject to the order.

The order continues after the litigation ends. The court retains jurisdiction over people subject to the order as necessary to enforce its obligations or impose contempt sanctions. Judge Paul G. Gardephe entered the order; the opinion does not resolve the underlying insurance dispute.