September 28 is shaping up to be an important day in the developing Oklahoma litigation over State Farm’s wind and hail claims practices. Two different judges will be asked to decide two very different questions. In Oklahoma County, Judge Amy Palumbo is scheduled to consider whether State Farm’s blanket confidentiality designations should be struck and whether additional internal documents should become public. In Cleveland County, Judge Jeff Virgin is scheduled to hear State Farm’s motion to dismiss the Oklahoma Attorney General’s separate enforcement action. Meanwhile, State Farm has added another contest to the docket by asking the Cleveland County court to disqualify my longtime colleague Reggie Whitten and the Whitten Burrage law firm from representing the State.
I have known Reggie for more than twenty years. He is a tenacious trial lawyer, and nobody should be surprised that an insurance company facing him would prefer a different opponent. Insurance companies have tried to disqualify me from cases as well. That maneuver is not exotic. If you do not like the lawsuit, attack the claim. If you do not like the discovery, attack the discovery. If you really do not like the lawyer asking the questions, attack the lawyer. The Attorney General of Oklahoma never retained me to help prosecute a statewide enforcement case, so Reggie has now taken this particular rodeo to a level I have not personally experienced.
The timing matters because discovery in these private cases is finally producing information that State Farm fought to keep from public view. In West v. State Farm, Comanche County Judge Grant Sheperd ruled on August 20 that State Farm’s uniform confidentiality designation did not satisfy the protective order’s requirement of a good-faith determination. The court de-designated 31 of 44 disputed documents and required State Farm to justify continued confidentiality document by document. State Farm then sought more time, explaining that it needed to revisit 55,913 documents while its discovery vendor was hosting more than one million documents across the Oklahoma cases. That request illustrates the strange gravitational force of modern insurance litigation: a single roof claim can eventually attract a million documents and more lawyers than some small towns have residents.
The Hursh case has its own secrecy battle. The policyholders contend that State Farm marked every produced document confidential, including blank pages, and failed to provide evidence showing why the disputed materials qualified as trade secrets or confidential commercial information. Their pending motion asks Judge Palumbo to strike the blanket designation and make specified documents public. Those materials allegedly include discussions of billions of dollars in reduced indemnity payments, calculations suggesting that a one-percentage-point change in claim outcomes could represent approximately $78.8 million, and management review procedures aimed at reducing full-roof-replacement decisions. State Farm disputes the plaintiffs’ characterization of those documents and the underlying accusations. The September 28 hearing is important precisely because the public should be able to distinguish proven facts from allegations by reading the actual materials whenever the law does not justify secrecy.
Discovery in Hursh is expanding beyond State Farm. On September 10, the policyholders moved to compel Accenture to comply with a subpoena seeking records concerning its consulting work on State Farm’s wind and hail initiative. According to the motion, Accenture was served in Oklahoma City, objected to the requests, produced no documents, identified no custodians or search terms, and supplied no privilege log. The policyholders allege that Accenture helped develop the vocabulary, benchmarks, and analytical machinery used in the initiative and was paid more than $1 million for that work. Accenture disputes the subpoena on jurisdictional, relevance, burden, and other grounds. The court has not yet ruled, but the question is obvious: if a consultant helped build the measuring stick State Farm invokes as an industry standard, should the consultant’s own files be examined to determine how that stick was constructed?
State Farm has disclosed some remarkable discovery numbers of its own. It reported 117,019 Oklahoma wind and hail claims with dates of loss from January 2019 through November 2025, including 26,089 claims closed without payment. It also said approximately 1.8 million documents, totaling more than 518 gigabytes, had already been collected in Hursh; that discovery-vendor expenses had exceeded $1 million; and that completing one requested review could require 100 attorneys working ten-hour days for nearly 179 business days at a projected cost of approximately $11.6 million. Those figures do not prove wrongful claims handling. They do demonstrate why these cases cannot honestly be described as a couple of isolated disagreements about shingles.
Against that background, State Farm filed its 114-page Motion to Disqualify Whitten Burrage on September 18. The motion argues that the Attorney General’s Oklahoma Racketeer-Influenced and Corrupt Organizations Act claim is quasi-criminal and that due process does not permit lawyers with financial interests in related private lawsuits to exercise prosecutorial authority. State Farm also contends that Oklahoma law restricts access to confidential ORICO investigative materials, that the Attorney General failed to post the contingency-fee agreement on his website within the required time, and that the agreement is therefore void. The motion even brings campaign contributions into the story, alleging that Whitten Burrage lawyers donated to Attorney General Gentner Drummond’s gubernatorial campaign shortly before the firm was retained.
This is not a frivolous motion, and anybody who dismisses it as mere insurance company theater is overlooking serious constitutional questions. State Farm relies on decisions holding that a prosecutor must be disinterested and that a private lawyer’s financial stake can create due-process problems in criminal or quasi-criminal proceedings. The Oklahoma Supreme Court previously refused to allow the Attorney General to intervene in Hursh, explaining that the State should bring its broader claims in a separate proceeding. State Farm now argues that the Attorney General accomplished indirectly what the Supreme Court prevented directly by filing a separate case and then retaining the same private lawyers.
That brings us to State Farm’s free algebra lesson. The motion says, “In algebra, A + B equals the same thing as B + A.” State Farm reasons that the Attorney General joining Reggie’s private case is constitutionally the same as Reggie joining the Attorney General’s public case. The commutative property is unquestionably safe. Whether it decides a due-process dispute is another matter. If constitutional law were that easy, we could replace the Oklahoma Supreme Court with a seventh-grade math teacher and finish oral argument before lunch.
The legal arrangements are not necessarily interchangeable. The Supreme Court said the State’s broad interests belonged in a separate action, and the Attorney General filed one. The retention contract states that the Attorney General keeps exclusive control over settlement and the course of the litigation. It requires confidentiality, places the private lawyers under the Attorney General’s supervision, and expressly says the firm is assisting the State. Those provisions do not automatically defeat State Farm’s conflict argument, but they make A and B legally different variables even if State Farm would prefer to simplify the equation.
The fee agreement is also interesting. Whitten Burrage receives nothing if there is no recovery. The contract provides 20 percent of the first $10 million, followed by declining percentages of 16, 12, 8, and finally 4 percent on amounts above $25 million, subject to a $50 million cap. My personal reaction is that the percentages are moving in the wrong direction. Recovering the first dollars is often easier than obtaining the last and largest dollars after an insurer has hired enough lawyers to populate a respectable convention. The work, risk, expense, delay, and resistance usually increase as the stakes rise. If Oklahoma wants private lawyers to finance litigation of this magnitude with no assurance of payment, I would give Reggie a higher percentage on the upper amounts, not a lower one. I do not expect State Farm to cite me as its contingency-fee expert.
The disclosure issue is more troublesome for the Attorney General and should be answered directly. If Oklahoma law required the agreement to be posted within five business days and it was not posted, the public deserves an explanation. Transparency rules should apply to the Attorney General just as surely as they apply to State Farm. The harder legal question is whether a posting failure requires disqualification, voids the agreement from its inception, can be cured, or warrants some other remedy. State Farm says the answer is disqualification. Reggie and the Attorney General have not yet filed their response, and the judge has not ruled.
The motion to disqualify is separate from the September 28 hearings and, as of this writing, no hearing date has been set. September 28 nevertheless matters enormously. One court will consider whether State Farm’s internal materials remain under a blanket of confidentiality. Another will consider whether the State’s enforcement lawsuit survives State Farm’s motion to dismiss. Those rulings could determine how much the public learns, how quickly it learns it, and whether the Attorney General reaches discovery into the alleged Hail Focus Initiative.
State Farm is entitled to defend itself, challenge genuinely excessive discovery, protect actual trade secrets, and raise legitimate constitutional objections to opposing counsel. Policyholders are equally entitled to test whether claim decisions flowed from individual facts or from undisclosed corporate objectives, benchmarks, training, and financial targets. Those following these cases should not prejudge either side, although I am certainly rooting for the policyholders.
I will be watching what happens on September 28. I will also be watching the response to the disqualification motion because I know Reggie Whitten, I know his persistence, and I doubt State Farm’s algebra lesson will be the final word. In litigation, A plus B may equal B plus A. But facts plus transparency usually produce a much more useful answer.
Thought For The Day
“Transparency is not optional.”
—Oklahoma Attorney General Gentner Drummond
