Olin Corporation v. INS. Company of N.A.

Background

The parties agreed to an amended protective and disclosure order. Judge Rakoff found good cause for an appropriately tailored confidentiality order governing the pretrial phase and found that disclosure of certain confidential discovery was warranted. The opinion is an order about discovery confidentiality; it does not decide the underlying insurance or environmental issues.

Materials Required to Be Disclosed

The order requires disclosure of copies of specified settlement agreements. One category covers agreements between Olin Corporation and identified insurers concerning certain excess or umbrella insurance policies issued to Olin from approximately 1950 through 1969, and concerning issues to be tried on remand or under Olin’s Fourth Amended Complaint. Another category covers settlement agreements and related communications involving General Dynamics–Ordnance and Tactical Systems, potentially responsible parties under the Comprehensive Environmental Response, Compensation, and Liability Act, or the United States, concerning costs or enforcement related to the Additional and Uncharacterized Sites Operable Unit at the Crab Orchard National Wildlife Refuge Site.

The order also requires disclosure of non-attorney-client-privileged and non-attorney-work-product-protected communications regarding those settlement agreements. Settlement agreements and settlement communications may be disclosed to experts or other people retained to provide specialized advice in the case if they first sign the required nondisclosure agreement.

Confidentiality Rules

People covered by the order—including the parties, their representatives, agents, experts, consultants, third parties providing discovery, and others with actual or constructive notice—must not disclose discovery material designated as confidential except as the order permits. Permitted recipients include the parties, specified individuals and administrators, litigation counsel and their support staff, certain people identified on a document, potential witnesses who sign nondisclosure agreements, experts and specialized advisers who sign those agreements, deposition transcribers, the court and its staff, and defendants’ and third-party defendants’ reinsurers in the ordinary course of making or adjusting reinsurance claims.

Confidential designations may cover previously undisclosed financial information; information about company ownership or control; business, product-development, or marketing information; the specified settlement agreements and communications; personal or intimate information; previously undisclosed information about study, review, or remediation of the Additional and Uncharacterized Sites Operable Unit; and other categories later given confidential status by the court. The producing person must mark protected material and provide a redacted copy for future public use, subject to special procedures for deposition transcripts and exhibits.

The order permits parties to challenge confidentiality designations or request additional limits on disclosure. If the parties cannot promptly agree, counsel must arrange a telephone conference with the court. Confidential material filed with the court, and filings that disclose it, must be filed under seal, with a publicly filed copy that redacts only the confidential material itself. The parties may file such material under seal without first obtaining the court’s permission, while using their best efforts to avoid unnecessary sealing. The court stated that it is unlikely to keep material confidential if it is introduced at trial and retains discretion over confidentiality for material submitted in connection with motions or other proceedings that may lead to a court order or decision.

Privilege and End of the Case

If a party inadvertently discloses material subject to attorney-client privilege or attorney-work-product protection, the disclosure does not waive or forfeit the protection under the order, which invokes Federal Rule of Evidence 502(d). After receiving a claim of inadvertent disclosure, the receiving party must return or destroy the material within five business days and provide counsel’s certification. The disclosing party must then provide a privilege log within five business days after notification that the material was returned or destroyed. The receiving party may ask the court to compel production, and the disclosing party retains the burden of establishing privilege or protection.

Within 30 days after final disposition, confidential discovery and copies must be returned to the producing person or destroyed with that person’s permission. The protective order survives termination of the litigation, and the court retains jurisdiction as needed to enforce the order or impose contempt sanctions.

Ruling

Judge Jed S. Rakoff ordered the parties and covered persons to comply with the amended protective and disclosure order. The order was stipulated and agreed by the parties and was marked “SO ORDERED” on June 19, 2020.