In my August 30, 2013, post, I discussed the “trade secret” (a/k/a/ confidential) discovery objection that insurance companies all-too-often raise. This post is somewhat related, pertaining to Allstate’s post-trial efforts to seal discovery it produced pre-trial under a trade secret/confidential protective order and was introduced by the insured at trial without objection from Allstate.

On page eleven of the order that is the topic of this post,1 the Weiss Court describes the discovery that Allstate produced pre-trial under protective order and sought to have sealed from the public post-trial, notwithstanding a failure to object to its introduction as trial exhibits. Because Allstate did not object to the introduction of previously protected documents into the public trial record, the Weiss Court properly decided that Allstate waived any ability to insist that such documents be sealed from the public post-trial. This is a valuable lesson in and of itself, but there is more.

In considering Allstate’s post-trial request to seal trial exhibits, the Weiss Court was also not persuaded by Allstate’s pronouncement that public disclosure of supposedly trade secret/confidential documents would put it at risk of competitive injury:

Moreover, simply because plaintiffs may have access to these documents before they otherwise would have obtained them through discovery is hardly prejudicial to Allstate in light of its failure to specifically demonstrate what, if anything, is sensitive or confidential about these documents.

This underscores that which I have discussed in previous posts in this series – naked objections do not fly. Objections must be substantiated.

In considering Allstate’s post-trial request to seal trial exhibits, the Weiss Court also weighed the benefit of making Allstate’s pre-trial production available to the public with Allstate’s argument that it would be prejudicial. I find this discussion very informative, so I quote at length:

The Court likewise finds meritless Allstate’s second contention that it would be substantially prejudiced in litigating over [Hurricane] Katrina claims if these exhibits were not sealed. ‘Courts routinely allow information discovered in one proceeding to be used in other forums.’ … In Patterson, [the Western District of Texas federal court] stated that ‘such collaboration among plaintiffs’ attorneys would come squarely within the aims of the Federal Rules of Civil Procedure to secure the just, speedy, and inexpensive determination of every action.’ … When, as here, the documents are in the possession of the court as trial exhibits, the case is even stronger for permitting other litigants to have access to them. … The Court therefore does not find it appropriate to seal exhibits that have already been introduced into the public record simply because Allstate would like to prevent other Katrina plaintiffs from obtaining them in a more efficient, less expensive way. … Allstate has provided no justification that outweighs the well-established presumption in favor of public access to judicial records….

Make use of this dynamite discovery decision, folks.

To read previous posts in my series on dynamite discovery decisions, click here.

1 Weiss v. Allstate Ins. Co., 2:06-cv-03774-SSV-ALC, D.E. 255 (E.D. La. Aug. 16, 2007).