Insurance Bad Faith Litigation: Strategies and Practical Tools to Successfully Resist Entry of Protective Orders

This CLE webinar will provide litigators with practical tools to successfully resist and prevent entry of protective or confidentiality orders in bad faith insurance cases. The panel will discuss how to overcome assertions that information warrants confidential treatment or was treated as such, the standards for obtaining confidentiality/protective orders and sealing at different stages of litigation, determining when information or documents amount to judicial records, competing interests that weigh against confidentiality, important decisions that limit confidentiality orders, and production of confidential settlement agreements in subsequent litigation.

"Sealing orders are not like party favors, available upon request or as a mere accommodation," said the First Circuit in R&G Mortgage Corp. v. Fed. Home Loan Mortgage Corp., 584 F.3d 1, 12 (1st Cir. 2009). Protective orders are only available for "good cause" to protect someone from annoyance, embarrassment, oppression, or undue burden or expense. Nonetheless, in almost every bad faith case, when the policyholder requests documents or notices a deposition about the insurer's practices and procedures for investigating and paying first-party insurance claims and other related topics, insurers assert the information is confidential and seek a protective order that has the effect of frustrating and preventing legitimate discovery. 

Strategies do exist, however, for successively avoiding protective or confidentiality orders that do not meet the required standards or that overburden the requesting party. Counsel must stay one step ahead and be proactive rather than reactive. Many arguments advanced in favor of protective orders dissolve when exposed to the light. Where some information is truly confidential, proper and limited restrictions on disclosure can be negotiated, including sharing provisions. 

Listens as this experienced panel discusses strategies and practical tactics for successfully preventing the entry of protective orders in bad faith litigation.