TIG Insurance Company v. Swiss Reinsurance America Corporation

Background

TIG Insurance Company, as successor to Ranger Insurance Company, and Associated Electric and Gas Insurance Services Limited are the plaintiffs. Swiss Reinsurance America Corporation, formerly known as North American Reinsurance Corporation, is the defendant. The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c), which allows a court to protect parties from harm involving discovery. The parties stipulated to the proposed terms, and the court found good cause for an appropriately limited order covering the pretrial phase of the case.

Protective-order requirements

The order defines “Discovery Material” as information produced or disclosed during discovery. Such material may be used only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or unrelated litigation purposes.

A producing party may designate material as “Confidential” when it reasonably and in good faith believes the material includes specified categories, such as previously undisclosed financial information, competitively sensitive information, information covered by third-party confidentiality agreements, protected personal or cybersecurity information, nonpublic-company ownership information, business or marketing plans, or personal or intimate information. The order provides procedures for marking ordinary discovery and for designating deposition testimony and exhibits. A producing party may also later designate material that was initially produced without a confidentiality designation, subject to notice and replacement-copy requirements.

Confidential material may be disclosed only to the groups identified in the order. Those groups include the parties and certain of their personnel, counsel and assigned support staff, litigation vendors, mediators or arbitrators who sign the required nondisclosure agreement, people identified as recipients of a document, potential witnesses, and experts or other specialized advisers who sign the required agreement. Counsel must retain signed nondisclosure agreements for experts and produce them to opposing counsel before the expert testifies or when the case ends, whichever comes first.

The order separately addresses “Highly Confidential” material. It identifies as highly confidential a settlement agreement resolving specified coverage litigation and material designated confidential under that litigation’s protective order. Parties must redact or seek to seal such material when filing it with the court under applicable public-access rules. The order states that the court may unseal documents unless it makes specific findings that closure is essential and narrowly tailored.

Challenges, subpoenas, and enforcement

A party may object to a confidentiality designation before trial by giving written notice explaining the grounds. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the applicable local rules and the judge’s individual practices. A party seeking additional disclosure limits, such as attorneys’-eyes-only treatment in extraordinary circumstances, must use a similar procedure.

The order does not prevent a person from producing confidential material in response to a lawful subpoena, other compulsory process, or a legal or governmental requirement. The person must provide notice to the producing party as soon as reasonably possible and, when the time allowed permits, at least 10 days before disclosure. The producing party bears the burden of opposing compliance if it chooses to do so. Everyone with access to confidential material must take reasonable precautions against unauthorized or accidental disclosure.

The court expressly stated that the order does not waive objections to discovery, waive privilege or other protection, or decide whether evidence is admissible at trial. It also stated that the court had not determined that any particular discovery material was confidential and retained discretion over whether to grant confidential treatment when material is submitted in connection with a court filing or proceeding. The order warns that the court is unlikely to seal or protect material introduced at trial solely because it was previously designated confidential.

Disposition

The court ordered the parties and covered persons to follow the protective-order terms, subject to contempt sanctions. The order survives the end of the litigation, and the court retains jurisdiction as needed to enforce its obligations or impose contempt sanctions. This was a discovery and confidentiality order; the opinion does not decide the parties’ underlying insurance dispute.