I wonder how concerned some insurance companies would be if they learned that one of their former managers who was responsible for claims conduct lawsuits spoke to a group of policyholder attorneys. After hearing and learning from such an individual yesterday, I have a new appreciation for how sophisticated the litigation management can be in some insurance companies and how important discovery involving improper insurance company conduct can be to success for my clients. I also wondered how much of a disservice some attorneys do to their clients by failing to invest time and money in conferences such as this.

Attorney Jerry Ramsey gave a presentation about the recurrent issue of underinsurance. Given my recent post, Insurance Agents and Brokers Should Be Concerned Writing Risks with 100 Percent Coinsurance to Avoid Error and Omission Claims, Ramsey’s suggestions regarding the remedies that are available for policyholders with such issues is invaluable, and could only be learned by those attorneys who went to AAJ Convention and are members of the Bad Faith Litigation Group. I am much better today representing clients with these problems. How many of my colleagues do not even appreciate that the issue exists, much less have been trained to do something about it. I strongly urge attorneys with clients that have been underinsured to read Ramsey’s article, “Underinsurance Litigation: The Hidden Deductible,” in the November/December issue of the Consumer Attorneys of California magazine, Forum, Volume 38, number 6.

Since the former insurance company litigation claims manager made a point about how important discovery can be to finding embarrassing conduct in claims departments, I was also proud that Slabbed in “If you don’t stand for something you’ll fall for anything – Plaintiffs’ growing opposition to State Farm Protective Orders,” described Deborah Trotter as a hard nose policyholder attorney hell bent on getting to the truth regarding State Farm in Mississippi. Slabbed quoted from one of Deborah’s briefs at length. I assigned the job of discovery disputes involving literally millions of documents in our case representing the Port of New Orleans to Deborah. She became an expert in electronic retrieval of information from computers, and I am happy she is using her knowledge and experience to get at State Farm’s misdeeds. I felt the conclusion of her brief was just as good as the quoted portion by Slabbed:

Several years ago, a Federal District Court Judge observed:

“District Courts are today being bombarded by an ever increasing number
of requests for protective orders. Some of the increase may be attributed
to legitimate attempts by litigants to stem the increasing use of abusive
discovery tactics. Much of the increase, though, must be attributed to a
practice among some attorneys to automatically seek protective orders in
every case where any potential for embarrassment or harm, no matter how
slight, exists.”

Ericson v. Ford Motor Co., 107 F.R.D. 92, 94 (E.D. Ark. 1985)

Many courts have come to recognize a defendant’s true objective in seeking estrictive confidentiality orders, and in objecting to production of internal documents. See, e.g., Wilson v. American Motors Corp., 759 F. 2d 1568, 1571 (11th Cir. 1985)(Discussing harm to a defendant’s reputation); Earl v. Gulf & Western Mfg. Co., 366 N.W. 2d 160, 164-65 (Wis. Ct. App. 1985)(Discussing a defendant’s concern that the plaintiff might pass discovery information along to other plaintiffs involved in similar
litigation, and explaining that this rationale does not constitute good cause for a
protective order).

A number of legal scholars have recognized that the true motivation behind the
tactics utilized by large defendants, in seeking to cloak information with the robe of
secrecy, is to deny the plaintiff the benefit of coordinating discovery efforts, and to
otherwise prevent the disclosure of potentially embarrassing internal information:
“Frivolous claims of confidentiality have been asserted to cause delay and disruption, to drive up discovery expenses, and make it difficult for opposing counsels to simply understand the information being sought.” Martin I. Kaminsky, Proposed Federal Discovery Rules for Complex Civil Litigation, 48 Fordham L. Rev. 907, 929 (1990). Many courts, therefore, favor access to discovery conducted by other parties in collateral or similarly situated litigation. It makes the administration of justice more efficient. Any other result would require that “each litigant who wishes to ride a taxi to court must undertake the expense of inventing the wheel.” Ward v. Ford Motor Co., 93 F.R.D. 579, 580 (D. Colo. 1982). See also Wauchop v. Domino’s Pizza, Inc., 138 F.R.D. 539, 546-47 (D. Ind. 1991) (Federal Rules of Civil Procedure should be construed to foster the just, speedy, and inexpensive determination of every civil action….collaborative use of discovery material fosters that purpose.); Baker v. Ligett Group, Inc., 132 F.R.D. 123, 126 (D. Mass 1990)(To routinely require every plaintiff to go through a comparable, prolonged and expensive discovery process would be inappropriate.); Patterson v. Ford Motor Co., 85 F.R.D. 152, 154 (W.D. Tex. 1980)(The sharing of discovery information between plaintiffs may reduce time and money which must be expended in similar proceedings, and allows for effective, speedy, and efficient representation.); Cipollone v. Liggett Group, Inc., 113 F.R.D. 86, 87 (D. N.J. 1986)(Maintaining a high cost of litigation for future advisories is not a proper purpose under Rules 1 or 26.); Wilk v. American Medical Ass’n, 635 F.2d 1295, 1301 (7th Cir. 1980) (That the expense of litigation deters many from exercising that right is no reason to erect gratuitous road blocks in the path of a litigant who finds a trail blazed by another.); U.S. v. Hooker Chemicals & Plastics Corp., 90 F.R.D. 421, 426 (W.D. N.Y. 1981) (Use of discovery fruits disclosed in one lawsuit in connection with other litigation and even in collaboration among plaintiffs attorneys, comes squarely within the purposes of Federal Rules of Civil Procedure.); Foltz v. State Farm Mut. Ins. Co., 331 F.3d 1122, 1131 )(9th Circ. 2003) (This court strongly favors access to discovery materials to meet the needs of parties in collateral litigation.”)

Her point is well taken. When attorneys share information and ideas, our clients are the better for it. I am certain that the last thing the insurance industry wants is a better informed legal bar pointing out how unfair and wrongful some of its practices and conduct has become. Attorneys are in a better position to do so when they make the investment in their profession to come to the events such as those sponsored by the AAJ.