The Charter Oak Fire Insurance Company et al v. American Capital, Ltd. et al

Filing 273

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 12/06/2013. (Attachments: # 1 Unredacted Memorandum Opinion, # 2 Proposed Redactions)(bas, Deputy Clerk)

IN

CHARTER OAK FIRE INSURANCE
COMPANY, et al.
Civil Action No. DKC 09-0100

v.

AMERICAN CAPITAL, LTD., et al.

MEMORANDUM

presently
case

pending

is an objection

Insurance
America

Company

issued

Schulze

on July

Production
Nos.

213

by

ready

Travelers

"Travelers"
United

or

States

& 214),

and

this

Casualty

"Plaintiffs")

Defendants'

with Defendants'

(ECF Nos.

217

The

insurance

Magistrate

Judge

Defendants'

Motion

motion

responses

to

Jillyn

been

For the following reasons, Plaintiffs'

overruled.
I .

of

Evidence

seal

K.

to Compel

filings

to Plaintiffs'

issues have

Fire

Company

(ECF
in

objections

briefed,

court now rules, no hearing being deemed necessary.
105.6.

Oak

to a discovery

Based on Newly Discovered

connection

226).

in

The Charter

Property

24, 2013 granting

of Documents

&

for review

filed by Plaintiffs

and

(together,

ruling

and

OPINION

and

the

Local Rule

objection will be

Defendants' motion to seal will be granted.

Background

On November
Judge Schulze

27, 2012, this case was referred

for resolution

of all discovery

to Magistrate

disputes

and for

determination
numerous

opinions

in this case have come before

familiari ty with
77,

92,

170,

regarding
the

(ECF No.

of non-disposi tive matters.

&

the facts is assumed.
184)

Because

a discovery

underlying

request,

factual

and

however,

procedural

object

a brief
issues

As

this one, some

ECF Nos.

(See

Plaintiffs

145).

42, 64,

to

a

ruling

background

in

the

on

case

is

necessary.
Beginning

Laboratories,

LLC

(100)

heparin.

1

2008,

Capital"),

( "American

hundred

in

Defendant
and

("SPL")

suits

American

pertaining

involved
to

Many of the complaints

about

whether

certain

primary

American

Capital

("the

Policies").

and

the

by Plaintiffs

judgment

action

seeking

Policies,

or, alternatively,

than

defective

A dispute

heparin

insurance

policies

filed

rescission

the
or

a declaration

2006

instant

drug
that

implicate
issued

through

to
2009

declaratory

reformation
that

one

subsequently

lawsuits

for the years

Travelers

more

Ltd.

Protein

in these lawsuits allege

underlying

umbrella

in

allegedly

SPL is a subsidiary of American Capital.
arose

Scientific

Defendant

became

Capital,

of

Travelers

not owe defense or indemnity coverage to either American

the
does

Capital

1 According
to the second amended complaint, "[hleparin is a
drug that is used to prevent the formation of clots within the
blood of humans."
(ECF No. 67 ~ 21).

2

or any of

its alleged

subsidiaries

for the underlying

heparin

lawsuits.2
During

discovery,

Defendants

requested

that

Plaintiffs

produce all claims handling materials

relating to the underlying

heparin

involving

and personal

injury

lawsuits

Defendants.

In

response, Travelers produced a limited number of claims handling
documents

from August 2008, but withheld approximately

documents,
2008

on

most
the

anticipation
also

ground

that

of litigation

provided

withheld

of which were created

a

such

privilege

documents

is

log

protected

on or after September

documents

and were

both

privilege and the work product doctrine.
On

November

production

20,

2012,

of the withheld

(See ECF No.

125).

First, Defendants

are not covered by the attorney-client
the

relevant

time

period,

created

that
the

2,
in

Travelers

each

of

the

attorney-client

(ECF No. 122-5).

Defendants

documents

were

thus protected.

indicating
by

596 other

moved

based
argued

compel

the

on three arguments.
that the documents

privilege

Travelers'

to

because, during

in-house

and

outside

counsel did not function as legal advisers but instead served as
2 In addition
to the underlying heparin lawsuits involving
SPL, Plaintiffs also seek a declaration that the Policies do not
afford
coverage
for either
American
Capital
or Defendant
Spectator Management Group ("SMG") in connection with a separate
lawsuit
involving
an injury suffered by a spectator
at a
sporting event.
According to the second amended complaint, the
complaint in that lawsuit alleges that SMG specializes in sportarena management and American Capital is SMG's parent company.
(ECF No. 67 • 29) .

3

claim

handlers

Second,

contended

Defendants

protected

by

prepared

in

business

of

the
the

work

claims
Third,

litigation.
Travelers

waived

otherwise

attached

by

of

than

posited

privilege

because

Travelers'

or

in
that,

protection

to the documents

by

not

they

were

state-regulated
anticipation
in

any

that

asserting

a

of

event,

may

have

rescission

at issue the extent and timing of Travelers'

regarding

American

are

doctrine

rather

Defendants

any

claim that places
knowledge

course

handling

function.

documents

the

that

product

ordinary

business

ordinary

an

performing

the falsity of certain

Capi tal

in

its

insurance

representations

made

(ECF No.

applications.

125)

On December 21, 2012, after conducting
hearing,

Judge

Defendants'

principles,

are

which
147,

Judge Schulze

documents

including
facts"

motion,

(ECF Nos.

order.

that

Schulze

facts

"either
and

wi thin

issued
she
148)

later
3

oral
confirmed

in

granting

ruling

As

to

the

a

paperless

applicable

legal

first held that the "general rule" is
shared

non-legal
an

an

an extensive motions

with

opinions

insurance

or
and

company's

created
thoughts
"ordinary

by

lawyers

about
course

the
of

) Judge Schulze ruled that Plaintiffs must produce to
Defendants: all claims handling material prior to September 18,
2008; all claims handling material created on or after September
18, 2008, with the exception of attorney mental impressions or
opinion
which
may
be
redacted;
reserve
information
from
September 2, 2008 forward; and reinsurance information from June
1, 2006 forward.
(ECF No. 148).
4

business"

and

thus

are

not

protected

by

either

the

attorney-

client privilege

or the work product protection

doctrine.

No.

77).

held

154-1,

at

Second,

documents created pursuant
at all.

that

a

(Id.

factual

is

performed

Applying

by

Schulze

went

on

that ordinary

to conclude

business

coverage

for the underlying

after

September

held

that,

protected
Travelers
rescission
of

refused

that

those

waived

Plaintiffs

at

(Id.

knowledge

created

that Judge Schulze

154).
clearly

outside

of

Accordingly,

discuss
Judge
created

Judge Schulze

further

that

after

were

presumptively

September

American

1B,

200B) ,

status by asserting

Capital's

a

and timing
purported

for the subject policies.

objections

to

things,

Judge

Schulze's

Plaintiffs

erred in determining
5

) .

for documents

78).

Among other

(Id.

to

in part, on the extent

numerous

whether

1B, 2 [OOB]," when

Travelers

protected

about

held

to her, Judge

"moved

suits.

in its applications

filed

(ECF No.

case

with

documents

any

coverage

counsel."

on September

the documents'

misrepresentations

this

heparin

claim that turns,

Travelers'

ruling.

those

regarding

outside

meet

Schulze

is not protected,

"there is protection"

to

(i. e. ,

that

to

1B, 200B.

as

or

function

Capital

ruled

Judge

to the facts presented

American

Schulze

company

in-house

these principles

Third,

) .

that

Insurance Regulations

investigation

that is done by an insurance
it

Schulze

to the Maryland

are not protected
"ordinarily,

Judge

(ECF

argued

that Travelers'

communications

with

that occurred

prior

the

anticipated

the

Plaintiffs

that,

privilege

coverage

Judge Schulze

product

outside

at

(Id.

by

coverage

counsel

18, 2008 are not protected

tying

the

11-18).

about

conflated

the

(Id.

heparin

at

of

the

reasonably
lawsuits,

the attorney-client

doctrine.

by

First,

applicability

to the date when Plaintiffs

litigation

improperly

work

and

privilege.

contended

attorney-client

in-house

to September

attorney-client

Plaintiffs

with

its

privilege

13).

Second,

argued that Judge Schulze clearly erred by concluding

that, before September
primarily

for

the

Capital's

insurance

18, 2008 Travelers
business

claims

purpose
because

consulted with counsel
of

adjusting

"[n]othing

in

American

the

record

suggests that coverage counsel was retained to conduct a factual
investigation

regarding

provide

advice."

legal

argument,

Plaintiffs

coverage
(Id.

cited

at
to

or

do

anything

12-13).
the

In

support

than

of

this

testimony

deposition

affidavit of Edward Zawitowski, a non-attorney

other

and

claims handler at

Travelers,

(Id.

at

By
2013,

15-16).

memorandum

opinion

the undersigned

and

overruled

and sustained them in part.

order

issued

Plaintiffs'

on

objections

(ECF Nos. 170 & 171).
6

February

11,

in part

Applying

the

deferential

standard of review required by Federal Rule of Civil

Procedure

72(a),

conclusions

I

found

regarding

attorney-client

the

privilege

I

privilege,

holding

that Plaintiffs

those

documents

the

error

presumptive

in

Judge

Schulze's

applicability

of

the

and the work product protection.

interpreted

client

establishing

clear

Specifically

No. 170, at 12-16)

of

no

(ECF

with respect to the attorneyJudge

Schulze's

ruling

failed to meet their evidentiary

privilege's

created

before

presumptive
September

18,

as

burden

applicability

to

2008,

it

because

was only as of that date when Judge Schulze viewed the evidence
as

establishing

counsel

primarily

capacity.
Schulze's
rescission
scope

of

Schulze's
related

that

Plaintiffs

in

(as

legal

at 15-16).

(Id.

consulting
opposed

to

with
a

coverage
business)

The opinion went on to uphold Judge

ruling that Plaintiffs waived privilege by asserting a
claim, but sustained Travelers'
the

relief

ruling

on

18,

the waiver

2008.4

of privilege

rescission
The

objections

Specifically,

awarded.

to Plaintiffs'

September

a

were

I

as to the

limited

Judge

for the documents

claim that were created

opinion

confirmed

that

after

"it

is

4
As a result of the waiver ruling, Judge Schulze ordered
production of all withheld documents created after September 18,
2008,
with
redactions
only
for
attorney
impressions
and
opinions.
I sustained Plaintiffs' objection on this ruling,
holding that "what is relevant to the issue of promptness is
limited to the timing of Plaintiffs' investigation into, and
conclusions about, the facts that American Capital allegedly
misrepresented in its insurance applications.
(ECF No. 170, at

7

irrelevant
documents

whether
that

employees,

such

were

in-house

factual

created

by

counsel,

information
Travelers'

or

outside

is

contained

non-attorney
coverage

in

claims

attorneys.

Consistent with Judge Schulze's ruling, attorney impressions
legal

opinions

Furthermore,

may

I instructed

[post-September

issue

of

redacted."

(ECF

No.

that "[i]f Plaintiffs

18, 2008] documents

entirety because
the

be

170,

such

should be withheld

documents

must

be

than

4,900

1, 2013,

pages

Plaintiffs

of previously

produced

withheld

in their

relevant to
submitted

Judge Schulze for in camera review" by March 1, 2013.
On March

26).

contend that any

they contain no factual information

promptness,

at

and

(Id.)

to Defendants

documents

to
5

more

pursuant

to

25) .
Consequently,
I ordered that Plaintiffs
produce
all
documents (or portions thereof) indicating - as a factual matter
when Travelers began to investigate whether, or reached a
conclusion that:
(1) American Capital had subsidiaries;
(2)
American Capital acquired SPL in 2006; (3) American Capital
acquired SMG in June 2007; (4) American Capi tal had been named
as a defendant in a heparin lawsuit prior to submitting its 2008
renewal application
to Travelers;
(5) the suspected tainted
heparin and heparin's active pharmaceutical ingredient had been
recalled
in early 2008;
(6) the allegedly
tainted heparin
ingredients had been processed in China; (7) SPL participated in
a joint venture that processed heparin sodium API in China; and
(8) the heparin
lawsuits predating
American
Capital's
2008
renewal application sought damages in excess of $10,000.
(Id.).
5
On February 15, 2013, Plaintiffs filed a motion for
reconsideration of the "limited portion" of the undersigned's
ruling
regarding
the
applicability
of
the
attorney-client
privilege to documents created before September 18, 2008.
(ECF
No. 172).
That motion was denied on May 17, 2013 because
Plaintiffs
simply
reiterated
previously
rejected
arguments.
(ECF No. 184, at 7) .

8

the

February

date,

11, 2013 Order.

Plaintiffs

review
July

all
27,

also

of

the

2012

Defendants

in

documents

did

enumerated

in

however,

Tr.)

telephonic
resubmi t

the

certify

none of

Plaintiffs'

privilege

February

11,

12,

review

documents
193,
III,

at

personally

the

11),

along

with

with

a

Plaintiffs'

reviewed

and believed

format

that

at

to

to
in

[the]
9

responsive
Hr'g.

Judge

indices

attested
for

documents has

to

the

Tr.).

Schulze

from James

each document submitted
"none of

by a

7,

who

a

counsel

accompanying

attorneys,

held

to

post-September

certification

Hr'g.

2008 documents

18,

(ECF No. 183,

6,

Plaintiffs

Plaintiffs'

log had any information

withheld

at

accompanied

fashion

post-September

resubmitted

particular

Schulze

directed

not,

documents to

ECF No. 183,
Judge

those

did

to

the

from

categories

Plaintiff

organize

directed

fully

tabbed

of

the

camera

Plaintiffs'

eight

documents

she

an indexed

Plaintiffs

in

one

in

the

2013,

which

2013 Order.

2013,

of

the

3,

from

in

believed

(See

She further

log.

that

camera

during

documents

new privilege

April

review.

for

Plaintiffs

2013 Order;

on April

hearing,

Schulze

same

withheld

or meaningfully

court's

On the

Plaintiffs

any

linking

6)

documents

because

11,

index

Consequently,

.

Judge

that

into

February

entries

the

log

fall

an

to

handling

entirety

not

log

facilitate

claims

their

include

privilege

submitted

privilege

the

(ECF No. 193, at

On

for

in

2008

18,

(ECF No.
E.

Rocap,

that

he

in camera review
any information

that is on Judge Chasanow's
On April

193-9 ~ 8).'

list of relevant

26, 2013, Plaintiffs

(ECF No.

facts .•

also provided

more

descriptive versions of their July 27, 2012 and January 18, 2013
privilege logs.
On May
"Defendants'

9, 2013, Defendants
Opposition

of Plaintiffs'

to

Plaintiffs'

Vaughn Indices,.7

a motion to compel production
on newly
this

discovered

submission,

evidence,

submitted

evidence.
Defendants

not anticipate

Counsel's

entitled

certification

which Judge Schulze construed as
of claims handling materials
(See

ECF Nos.

argued

including two new depositions

Seitz, Travelers'

a document

that

186

&

newly

based

193).8

discovered

of Mr. Zawitoski and Ms.

in-house counsel, revealed that Plaintiffs

litigation

"any earlier

In

than December

did

8, 2008,

, Mr. Rocap noted that Plaintiffs included drafts of the
complaint in the set of documents submitted for in camera review
because "they are not statements of facts, but are counsel's
non- final formulation of allegations.
They are also, in their
entirety, attorney impressions or opinions..
(ECF No. 193-9 ~
8). Defendants later explained their position that they "do not
seek the legal analysis reflected in draft complaints and draft
correspondence, but if there are recitations of purported facts
on
those
complaints
(which there
must
be)
or
in draft
correspondence,
Defendants
are entitled
to see those facts
pursuant to the Court's Order."
(ECF No. 195, at 18).
7
Plaintiffs assert that they did not submit
"'Vaughn
indices' nor did they understand the Court to have directed them
to do so."
(ECF No. 217, at 2 n.2).

8 As Plaintiffs' counsel notes, this motion was submitted
The
directly to Judge Schulze without docketing on PACER.
as ECF No.
motion was subsequently docketed on July 17,2013
193.
10

or

December

Plaintiffs

were

19,

performing

functions

handling
Defendants
December

sought

2008

business,

before

documents

Defendants

agreed

Plaintiffs

opposed

Defendants

are

to

them,

and

anticipated
19)

is inclined

on

provide

an

in

counsel,

to

regarding

counsel's

Declaration

(Id.

Leave
at

9

47)

to

Plaintiffs

the

pre-

the exception

2013,

a new

log that

that

was previously
Plaintiffs

2008."

of

available
"reasonably

(ECF No.

199,

at

stated that "[ilf the Court

a

basis
Court

arguing

"anticipation

these issues, Plaintiffs

with

further

are prepared

to

Declaration

of

additional

in the Fall

simultaneously

submit

with

7,

event,

would contain privileged

first submitting,
for

September

actions

claims

of

on the privilege

June

any

the

that

Consequently,

(9) categories

the evidence

camera

provide

on

by

to revisit

and

legal,

2008.

from proposing

In the opposition,

9

6)

(ECF No. 192, at 7, 29-37).

in

litigation

at

than

redactions,

identified

motion

because
that

rather

nine

were protected.

estopped

date

of

without

this

193,

December

production

of "forty or so" documents

litigation"

(ECF No.

2008"

2008.

information,

information

Because

Plaintiffs

with this Opposition,

Declaration

on

an

in

such a

camera

are

a Motion
basis."

.

The opposition

was docketed

199)
11

on July

17, 2013.

(ECF No.

On
submit

the same date,
declaration

motion,

of

Plaintiffs

Plaintiffs
Paul

filed a motion

Janaskie,

argued

that

in

Esq.

although

for leave

camera;

that

deemed

they

in

the

privilege

logs "sufficient to allow the Court to evaluate

privilege

claims

in an

abundance

of

the

Court

Janaskie,

in

camera

Plaintiffs'

Plaintiffs'

assertions

product protections."
to

Plaintiffs'

camera

declaration

declaration

outside
of

executed

coverage

counsel,

attorney-client

if

of

and

motion

Paul Janaskie

for

by
in

Mr.

leave
26,

Paul

support
and

Defendants

on June

should not be permitted

to submit

privilege

(ECF No. 202, at 2) .10

opposition

declaration

that Plaintiffs

a

[the]

caution

deemed necessary by the Court, Plaintiffs are prepared
to

to

replied

submit

2013,

(ECF No.

that. Plaintiffs'
submission

"Defendant.s having

arguing

to submit an in camera

195, at. 17-18).
broad

assertions

of documents

for in

a

fact

chance

to

camera submission.

(Id.

at

Defendants
of

camera
check

milit.ated against. grant.ing Plaint.iffs' motion

10

in

because

a fact witness.

previous

of

work

Mr. Janaskie

argued

to

further

privilege
review,

is

and

wi t.hout.

t.heir statements"
for yet another

in

18) .

This motion was also docketed on July 17, 2013.

202)
12

(ECF No.

On July 24, 2013, Judge Schulze granted

Defendants'

motion

to compel and deferred ruling on Plaintiff's motion to submit an
in camera declaration
Schulze

ordered

documents
Plaintiffs
sole

Plaintiffs'

that

proffered

responded

8,

Schulze

erred

motion

to

considering

of Paul Janaskie
(ECF

opposition

No.

on

217)

August

replied on September

in
.

29,

16, 2013

also filed a motion to seal on August
(ECF No. 226).

Standard of Review
Under

matters

28

!l 636 (b)(1),

U.S.C.

may be referred
A

determination.

been

erroneous

shown
or

that

contrary

non-dispositive

to a magistrate

district

portion of a magistrate
has

not

compel.

Plaintiffs'

Defendants

handling

(ECF No . 214). 11

by

in camera declaration

to

claims

2008.

29, 2013, which Plaintiffs did not oppose
II.

all

Judge

to the July 24, 2013 Order on the

(ECF No. 223) and Plaintiffs

(ECF No. 234).

produce

December

Judge

Defendants'

Defendants
2013

before

to

filed an objection

ground

deciding

Plaintiffs

created

(ECF No. 213)

of Paul Janaskie.

judge may

judge

modify

judge'S non-dispositive

the
to

magistrate
law."

11

judge'S

Id.;

see

pretrial

for hearing

or

set aside

ruling
order
also

and
any

"where it

is

clearly

Fed.R.Civ.P.

In addition to the nine categories of pre-December 2008
documents,
Defendants
sought
disclosure
of
two
additional
categories of withheld documents post-December 8, 2008.
(ECF
No. 193, at 36).
Judge Schulze deferred consideration
of
Defendants'
claim that Plaintiffs have waived protection for
post-December
18 documents
relating to counsels'
rescission
advice.
(ECF No. 213, at 11).
13

72(a);

Local

receive

further

magistrate
The
while

Rule

301.5.a.
evidence

or

erroneous"

legal conclusions
MMI Prods

v.

[district)

recommit

judge with instructions."

"clearly

to law."

"The

standard

judge

the

matter

28 U.S.C.

applies

to

may

also

to

the

~ 636(b)(1)(C).
findings,

if they are

will be rejected

factual

"contrary

231 F.R.D. 215, 218 (D.Md. 2005).

Long,

Under the clearly erroneous standard, the
reviewing court is not to ask whether the
finding
is the best
or only
conclusion
permissible based on the evidence.
Nor is
it to substitute its own conclusions
for
that of the magistrate judge.
See Tri -Star
Airlines,

Inc.

v.

willis

Careen

Corp.,

75

F.Supp.2d
835,
839
(W.D.Tenn.
1999) .
Rather,
the
court
is only
required
to
determine
whether
the magistrate
judge's
findings are reasonable and supported by the
evidence.
Id.
"It is not the function of
objections
to discovery
rulings to allow
wholesale relitigation of issues resolved by
the magistrate judge."
Buchanan
v.
Consolo
Stores
Corp.,
206 F.R.D. 123 (D.Md. 2002).

Int'l

of Machinsi

Ass' n

ts

&

Aerospace

Workers

V.

Wener-Matsuda,

390 F.Supp.2d 479, 485 (D.Md. 2005).
III. Analysis
A.

Plaintiffs'
2013 Order

Objections

to Judge Schulze's

July 24,

On July 24, 2013, Judge Schulze issued a memorandum
and

order

Defendants'

based

granting
motion

handling documents

to

on

compel

and deferring

14

newly

discovered

pre-December

8,

opinion

evidence
2008

claims

ruling on Plaintiff' motion for

leave

to submit

(ECF Nos. 213
to

declaration

should

214).12

July

24,

2013

not

the

&

have

Plaintiffs'

On August
Order

made

proffered

of Paul

on

camera

in

findings
submission

camera

opinion,

Plaintiffs

Judge

relating

documents

consideration

of

camera document
at

11)

received

may,

within

objections

protection

counsels'

to

Plaintiffs'

Schulze

motion

further

Plaintiffs'

thirty

days,

to Plaintiffs'

Schulze

considering

in support

dated

of their

for

privilege

after December
claim

"[0]

18

advice,

to submit

log."

8, 2008

and
an

in

(ECF No. 213,
nce

Defendants

documents,

their previously
logs.

she

post-December

for leave

pre-December

that

of Defendants'

s;:ated that

supplement

stated

rescission

to supplement the privilege

Judge

have

waived

objected

Judge

without

Schulze

review of documents

have

that

Camera.

In

(ECF No. 217, at 2) .13

8, 2008, and thus will defer consideration
that

Esq.

Plaintiffs

ground

factual

In the memorandum
in

12,2013,

the

privilege and work product claims.

"will defer

Janaskie,

they

submitted

The court will

then

Defendants
identified
forty-four
(44)
privileged
documents on Plaintiffs' privilege log which they did not seek
Plaintiffs to produce.
(ECF No. 193, at 37)
Thus, the July
24, 2013 Order to produce pre-December 8, 2008 documents does
not encompass these documents.
12

13 Plaintiffs assert that the July 24, 2013 ruling was
docketed, but counsel first received the Order on August 5,
2013.
(ECF No. 217, at 4 n.6).
Thus, Plaintiffs timely
objected within fourteen (14) days from receiving the Order.
See Local Rule 301.
15

determine

how

to

handle

any

Judge Schulze also observed

(Id.)."

2013 resubmission
review

to

the

February

documents dated prior to December
in

need

camera

review"

given

Plaintiffs did not anticipate
Thus,

Judge

Schulze

11,

created

before

protected,

withheld
2013

Judge

that

Plaintiffs
date

of the forty-four

documents which Defendants did not request.

any
that

Judge

Schulze

remaining

in

Plaintiffs

inappropriately

stated

camera
have

that

review,

unduly

responded

[would] not

finding

to

because

to

delayed
the

are

any
not

(44) privileged

how

consider

that

to handle
"the

fact
[and]

discovery

order

8, 2008.

produce
they

that

(ECF No. 213, at 11

in determining
she would

camera

contained

litigation until December

with the exception

n.4)

April 12,

Order)

Schulze's

review."

for in

8, 2008, "and this

instructed

documents

camera

that Plaintiffs'

of documents previously

(pursuant

in

remaining

they

produce

" Plaintiffs produced pre-December 8, 2008 claims handling
documents
on
August
15,
2013
and
August
22,
2013
and
"transcribed versions of handwritten notes that were part of
those August 11 and August 23 productions on September 12,
2013."
(ECF No. 235 , 3).
Defendants were scheduled to depose
Tracy Seitz, Travelers' in-house counsel, on October 8, 2013
"specifically on the subject matter of the documents produced by
Plaintiffs pursuant to the Court's July 24, 2013 Order."
(Id.'
4).
On September
19, 2013,
Defendants
requested
and
Plaintiffs consented to - an extension of time until October 30,
2013 to file, if necessary, a motion to compel Plaintiffs' postDecember 8, 2008 claims handling documents, in order to have
sufficient time to incorporate Ms. Seitz's deposition testimony
into any submission Defendants may make.
(Id.'
5)
Judge
Schulze granted Defendants' motion for extension of time on
September 23, 2013.
(ECF No. 237).
16

for in

documents
without

camera review, dropping off two large boxes

any attempt

document,

much

less

privilege

log."

(Id.

Plaintiffs
Schulze's
limited

match
at

state

factual
to

to organize

the

that

although

with

they

"the ground

Magistrate
in

document

an

entry

Judge's

at

(Id.

disagree

for

this

decision

camera submission

claims."

identify

she

made

proffered

factual

Plaintiffs
attempted

argue
"to

pre-December

declaration

findings
that

submit

a

on

with

a

Objection

not

to

on

by

in

an

camera

allegedly

proffering

more

the

particularized

18, 2008 documents

is

consider

in further support of
Plaintiffs

6).

Judge

essentially

challenge Judge Schulze's decision to defer consideration
Plaintiffs'

any

15

findings,

Plaintiffs' proffered
their privilege

11)

any

or meaningfully

of the

on the ground
incomplete

record.

declaration,
showing"

that

that

they
the

(ECF No. 217,

were privileged.

at 8).
Judge
whether

to

Schulze
conduct

acted
an

in

within
camera

her

discretion

review

of

Paul

in

deciding
Janaskie's

15
Judge Schulze noted that this "dump on the court alone
could have justified a ruling that Plaintiffs were not entitled
to withhold those documents."
(ECF No. 213, at 11); see Barr
Marine Products
Co., Inc.
v. Borg-Warner Corp.,
84 F.R.D. 631,
636 (E.D.Pa. 1979) ("[A] party resisting discovery on the ground
of
the
attorney-client
privilege
must
by
affidavit
show
sufficient
[f]acts as to bring the identified and described
document within the narrow confines of the privilege.
Nor will
submitting a batch of documents to the Court [i]n camera provide
an adequate or suitable substitute.") .

17

declaration
United

before

States

ruling on Defendants'

Court of Appeals

motion

to compel.

for the Fourth Circuit

The

has held

that:
[el
videntiary privileges may serve as valid
bases to block the disclosure
of certain
types of evidence, and the validity of such
privileges may be tested by in camera and ex
parte proceedings before the court "for the
limited purpose of determining whether the
asserted privilege is genuinely applicable."

United

States

(quoting
1986) )

v. Abu

Abourezk

v.

(emphasis

Ali,

528

Reagan,

F.3d

785

When

added).

210,

F.2d
a

245

1043,

party

(4th

Cir.

1060

2008)

(D.C. Cir.

refuses

to

produce

documents during discovery on the basis that they are privileged
or

protected,
for

basis

Guidelines
Inc.,

it

that

the

burden

claiming

documents,

providing

251,

and

do

so

in

information

itself

privileged

parties

assess

the

to

requirement

Inc. v. Creative

pipe,

Specifically,
nature

tangible
a

Discovery

"describe

must
or

evidentiary

(D.Md. 2008).

254 n.2

privilege

an

26(b)(5),

Fed.R.civ.P.

claim.

communications,

disclosed

This

of

9.c; see also Victor Stanley,

250 F.R.D.

party

has

manner
or

the

things
that

protected,
Fed.R.civ.p.

claim."

not

the

produced

without
will

of

a

revealing

enable

other

26 (b)(5)(A)(ii).

was added in the 1993 amendments

to the Rules

of Civil Procedure, and in the words of the advisory committee:
[asserting privilege/protection]
The
party
must also provide sufficient information to
18

or

enable
other
parties
to
evaluate
the
applicability
of the claimed privilege
or
protection.
Al though the person from whom
the discovery is sought decides whether to
claim a privilege or protection,
the court
ultimately
decides
whether,
if this
claim is
challenged,
the
privilege
or protection
applies.
Providing information pertinent to
the
applicability
of
the
privilege
or
protection
should reduce
the need for in
camera examination of the documents.
Fed.R.Civ.P.
In

26 advisory committee's note

written

protection

is

maintained

ensuring

discovery,

asserted

thereafter

properly

involves

in

(emphasis added).

the

several

a

that

privilege

or

instance

and

first

"First,

steps.

pursuant

to Federal Rule of civil Procedure 26 (b)(5), the party asserting
privilege/protection
document,

must

can
log

that

this

claimed,

regarding
the

communication,
document's

Sandler,

nature

of

the

of

No. PWG-11A party

16, 2013).
prepared

withheld,
the

privilege

and

contains

privilege/protection

making/receiving

person

subject

Discovery

Paul

W.

Grimm,

Problems

contents

of

matter.

and

Their

effective
19

e.g. ,

See,

Charles

each
which

for

Ngoubene,

a properly

document

for

the date and place of the communication,

10.d;

(suggesting

v.

(D.Md. Aug.

the

name

general

Guideline,

Elat

through

each

particularity

documents,

of

at *5

burden

identifies

information

with

is claimed."

2013 WL 4478190,

sustain

so

category

or

privilege/protection
29-31,

do

S.

Fax,

Solutions,

privilege

log).

&

the

and the
Discovery

Paul

62-64
If,

Mark
(2005)
after

this

has

been

sufficiency
party

may

burden

done,

the

of the asserted
no

of

longer

rest

establishing

deposi tion transcript,

A

of document.
must

be

on the privilege
evidentiary

or other

to do

produced

log, but
by

bears

affidavit,

of
Elat,

a

ruling

the

dispute

looking
party,

is

at

that

the

of

the

failure

No. PWG-11-2931,

2013

"If it makes this showing and the requesting

can

disputed

ready

the

to

submit

evidentiary

to

support

rule on the merits

documents

of

or category

party still contests the assertion of privilege/protection,
the

the

- for each element

so warrants

because

the

the asserting

for each document

asserting party to meet its burden.
WL 4478190, at *5.

challenges

basis

evidence

claimed

failure

party

privilege/protection,

an

each privilege/protection

documents

requesting

be produced

the

court,

offered

of the claim
for in

by

which,
the

or order

then
after

asserting
that

the

camera inspection."

Id.

(emphasis added).
Here,
8,

2008

Plaintiffs
claims

could not establish

handling

documents

that the pre-December

were

privileged.

Thus,

Plaintiffs now argue that Judge Schulze rejected their privilege
claims based on an incomplete record.
not

shown

incomplete

that

record

consideration
Janaskie's

the July

of

and

24,

that

Plaintiff's

declaration

in

2013
Judge

Plaintiffs,

ruling

was

Schulze's

motion

for

however, have

premised
decision

leave

to

upon
to

submit

defer
Paul

camera was clear error or contrary
20

an

to

law.
to

In

fact,

compel

not

Judge

on July

anticipate

Schulze

24,

2013

new

employees

previously

claimed"

to

in

compel

reviewed
193-6),

and

(ECF No.
first

Mr.

193-5,

time

counsel

Seitz's

after

claims

which

performed

18,

at

6).

new motion
Judge

Schulze

2013
April

in-house
213,

that

213,

(ECF No.
9,

"testified

(ECF No.

2008."

as

documents

from

by

of

early

as

26,

he

after

two

Defendants'

April

did
-

least

documents,

from

during

2008

(ECF No.

of

handling

activities

September

the

new deposition

19-79),

8,

litigation

merits

motion

Plaintiffs

"at

review.

deposition

at

that

reviewing

the

second

that

December

anticipate

after

Zawitoski's

about

after

not

evaluating
of

determined

in camera

for

Defendants'

showing

and

production
Tracy

until

did

submitted

Specifically,

and

evidence

Plaintiffs'

Plaintiffs

-

litigation

considering

granted

for
and

at

2013
the

outside

4).

Judge

- -- -- -- -- - - - Schulze

considered

193-22) ,

(ECF No.

consequently,

September
and outside

18,

she

2008

activities

counsel

entailed

(ECF No.

213,

Co.,

138

F.R.D.

held

that

at

performed
"ordinary

4);

see

also

655,

662

(S.D.Ind.

documents

that

concluded

any
21

by

Plaintiffs'

claims

Harper

constituting

many

v.

1991)
part

of

in-house

handling

matters."

Insurance

Auto-Owners
("[mJost
of

a

post-

the

courts

factual

have

inquiry

into
a

or evaluation

claim

of a claim,

decision,

are

insurer's

business

California

State

("[t]he

and

must

be

assurance

that

the

the

ordinary

course

of

Ins.

Co.,

insurance
its

files

are

has a duty

with respect
For

F.R.D.

company cannot

claims

when it

123

Zawitoski

202

reasonably

accumulated
investigate,

to claims

made on it
in

the

an
v.

that

being
provide

material

prepared

will

not

Foods

v.

1988)

the

anticipation

by its

to

(M.D.N.C.

evaluate

April

as

Fast

argue

in

material

business

Rinaldi's

198,

of

Schmidt

the
so

insurance

to

instance,

of

processing

Pete

at

182, 184 (D.Nev. 1989)

concrete

the

arrive

course

product.");

litigation

claims

to

ordinary

127 F.R.D.

sufficiently
routine

in order

the

work

Assoc.,

immunized from discovery.");
Am.

in

not

to possible

prepared

in

produced

Auto.

connection

undertaken

of

be

Great
(" [a]n

entirety

of

litigation

and make a decision

insured.").

26,

2013

deposition,

Mr.

-- ------ -------(ECF No. 193-5,

22).

Mr.

Zawitoski

further

testified

_

(Id.

(Id.

at

48)

22

Mr. Zawitosky

at

27)

stated

_

_

at

----

------- ---- --- -24-28,

48-50).

Judge

Schulze

testimony

also

(See

considered

Mr.

id.

at

Zawitosky's

_

(Id.

at

47).

Judge

Schulze

recognized

that

Mr.

Zawitosky's

new

testimony

Judge

that

this

Schul ze

determined,

however,

_

especially

given

(ECF No.
at

5)

16

Moreover,

-from

213,

April

26,

Judge
2013,

Schulze

assessed

_.
during

which

she

Ms.

Seitz's

---

testified

(ECF No.

193-6,

16
The undersigned
also
previously
agreed
that
"a fact
finder
could
reasonably
disregard
testimony
as
being
conclusory
and
self-serving,
given
Plaintiffs'
broad assertion
of privilege."

at 16).
23

deposition

at

22-23)

_

with
Defendants
Mr. Zawitosky's
particularly
(ECF No. 170,

IIIIIIII
-

(id. at

-

8).

Ms. Seitz

IIIIIIII _
•

further

•

•

._-

at

(Id.

9)

the

December 8,

appropriate

of

burden

and

this

of

in

ordinary

new evidence,

6-7);

see Nat'l

Sheet

Metal

that

the
).

Defendants'

the

8,

sustain

in

their

2008 documents were
as

opposed

handling.

to

the

(ECF No. 213,

Co. of Pittsburgh,

Ins.

that,

at

v. Murray

Pa.

litigation

document must

means that

of the

because

course

these

contend

the

prospect
of

of

Judge

(holding

litigation,"

business."

reasons,

that

would have aided

relied

new motion

not

claim

1992)

"ordinary

pre-December

Schulze

may

finding

did

litigation

2008, as

and

(emphasis
Schulze

in

granted

second motion to compel.

Plaintiffs
Janaskie

18,

Plaintiffs

pre-December

Schulze

967 F.2d 980, 984 (4th Cir.

of

For

September

protection,

of claims

Fire

Inc.,

"prepared

in

original)

Union

Co.,

when

Plai:ltiffs

of

purpose

anticipation

not

the

anticipation

business

have been

date

work product

showing that

prepared

than

_

•

Judge

rather

critical

attorney-client
light

2008,

on

Based

____

identified

-

explained

to

on

2008

the

Judge

documents

sufficient

compel without

proffered
Schulze
are

24

in

of

determining

whether

privileged.

evidence
having

declaration

to

in

But

granting

consider

Paul

Judge

Defendants'

any additional

proffered

in

Laboratories

camera,

the

Court

seek

to

Prowess,

(rejecting

plaintiff's

where plaintiff
in

request

argued

determining

compel are

that

whether

the

Paul

Plaintiffs

concede

that

"their

sufficient

to
if

allow

it

chooses

Plaintiffs

added) .
abundance

of

necessary

by

protections

with

tune

incomplete

an in

(Id. )

and
record,

deferred

review

Janaskie

- which declaration

necessary
motion

to

declaration
instead,

for

of

her

compel,

Plaintiffs

was essential
Plaintiffs

Judge

to

simply asserted
25

Schulze

initially

not

Judge

if

"in an
deemed

Plaintiffs'

work

product

Schulze's
that

on
favor

an
and

from Paul

argued was not

in opposing

argue

change

relied

camera declaration

Moreover,
did

(emphasis

only

in Defendants'

Plaintiffs

review.

2)

Plaintiffs

added).

in

privilege

of

and

are

camera documents challenged

she ruled

a proffered

to

in

that

only after

logs

review,

support

for

camera,

those

such

pri vi lege

(emphasis

now argue

in

camera declaration

facilitate

the

motion

privilege

evaluate

in

to

the

(ECF No. 202, at

attorney-client

Defendants."

their

to

Court

respect

in

Defendants

declaration

to do so."

*15 (D.Md.

"document would aid

fact,

existing

court

and to

the

of

the

offered

caution

assertions

by

RaySearch

documents that

Janaskie's

to

claims,

v.

to submit document

the

In

privileged.").

submit

leave

Inc.

AB, No. WDQ-11-1357, 2013 WL1856348, at

Apr. 30, 2013)
in

See

camera material.

that

the

factual

"in order

Defendants'
in

camera

findings;

to assist

the

Court

in

deciding

revisit

them,

camera basis

[the

Plaintiffs

of 2008,"

There

is

declaration
to

the

on the
the

to

information

with

were prepared
confirm

- in accordance

intend

July

finding

earlier

24,

that

than

in

the
in

camera
vital

motion

Plaintiffs

for

- or have already

Plaintiffs

did

December 8,

2008.

of

the documents
suggest

2013 Order will

to

stated

camera Declaration

Plaintiffs

31).

in

actions

Defendants'

an "in

to produce

to provide

information

of the privilege
at

on an

proffered

to

to

(emphasis added) .

evidence.

submit

inclined

counsel's

the

respect

the basis

with the

factual
any

to

is

provide

10-11)

that

(ECF No. 199,

documents they

litigation

to

it

of counsel,

(ECFNo. 199, at
indication

if

regarding

on newly discovered

logs."

Schulze's

prepared

Declaration

decision-making

they

counsel

no

issues

would have adduced any additional

compel based
that

are

- a further

Court with additional
the Fall

privilege]

produced

dispute
not

that

Judge

anticipate

Specifically,

---------Plaintiffs

argue

that

"documents

that

will

be

(ECFNo. 217, at
reviewing

the

considerable

Schulze determined
communications

that

related

record

in

this

case,

produced

8-9 n.9).

to

claims
26

handling,

After

however,

both the pre and post-September
and was not

_

Judge

18, 2008
prepared

in anticipation
" [tJhe

court

of

has

litigation.

already

Specifically,

ruled,

three

failed to show that they anticipated

she

times,

stated

that

Plaintiffs

litigation before September

18, ECF Nos. 148, 170, 184, and reliance on activities
before

that

decision

date

to

examine

failed

any

event,

an

the

8)

previously

same

She

as

event,

anticipating

further

found

that
18

possession

as

had

in

their

of

litigation,

18

communications

post-September

a

post-September

raise

to

occurring

any

anticipation

earlier

"[tJhe

at

they

In

misplaced.

is not

213,

which

communications
evidencing

coverage

(ECF No.

litigation."
Plaintiffs

is accordingly

that

and

that
all

in

were

written by, or in one case to, Mr. Zawitoski,
at 9)

(Id.

Moreover,
argue,

in

declaration

as Defendants

the
in

motion

date.

- .

-. ..

-

an

See

Schulze

to

the

showing

documents

litigation"

leave

that

camera,

additional

17

for

correctly

Maxwell

similarly

I ••• ~ ~

II

state, Plaintiffs
submit

Paul

declaration
earlier
v.

South

found

did not

Janaskie's

would

include

"anticipation

Bend

Work

misplaced

t.

I

.17

of

Release

Plaintiffs'

•

•

•I

(See ECF No. 193-12; see also ECF No. 213, at 9).
that
Defendants'
Judge
Schulze
also
properly
asserted
anticipation
of litigation is immaterial to when Plaintiffs
anticipated litigation.
27

Center,

3:09-CV-008-PPS-CAN,

NO.

judge and raised for the first time in the objections
the

States v. Moore,

district

judge

are

raised

*2

magistrate

before

not

at

Oct.

25,

("Arguments

4318800,

(N.D.Ind.

filed

2010)

WL

2010

waived")

375 F.3d 580, 584 n.2)

before

Uni ted

(citing

Cir. 2004)).

pth

a

Even

if Plaintiffs made this argument before Judge Schulze, they have
not established
motion
with

was

that the decision to defer ruling on Plaintiffs'

clearly

Plaintiffs'

Judge

Schulze

issue

her

erroneous

or

contrary

own prior admission,

to accept

ruling,

and

intended

to facilitate

the review

already

submitted

camera.

Practice
1995)

Assocs.

("Prior

sufficient
application
review

of

to

Diego,

in

camera

an

of

a
not

claimed privileges
Judge Schulze
not genuinely

showing

privilege
replace

in

camera

motion

for

United

162

F.R.D.

review
of

or

a

other

effective

there

that

States
624,

legitimate

to
only

Plaintiffs
v.

Family
(S.D.Ca.

first
issue

be
as

a
to

In

camera

testing

of the

protection.

and protection.").
determined

applicable

that the asserted

privileges

were

based on her review of the affidavits,

and documents

produced

- all of which

conclude that in-house and outside counsel performed
claims handling,

was

627

must

adversarial

for

declaration
leave

of documents
See

San

evidentiary

should

deposi tions,

in

Consistent

law.

it was not necessary

a proffered
Plaintiffs'

to

led her

traditional

rather than legal, functions before December
28

to

8,

2008,

and

thus

communications

Notably,

protected.

privilege

that

date

were

not

See In re Allen,

106 F.3d 582, 601

(4th

("a district court's holding that the attorney-client
does not protect

determinations
Stanley,

to

Plaintiffs do not challenge Judge Schulze's

factual determinations.
cir. 1997)

prior

Inc.

of
v.

communications
As

fact").

Creative

pipe,

Judge

rest[sl essentially

Grimm

observed

in

on

Victor

Inc.:

lilt should go without saying that the court
should never be required to undertake
in
camera review unless the parties have first
properly asserted privilege/protection,
then
provided sufficient factual information to
justify the privilege/protection claimed for
each
document,
and
finally,
met
and
conferred in a good faith effort to resolve
any disputes without court intervention.
250 F.R.D. at 266.
Here,

Plaintiffs

made

a

strategic

taking an "all-in" approach with respect
and work product
on

a

complete

did not

record

and

adjusting

primarily

insurance

claims.

at

6-7).

Cir. 1982)

See

United

States

continue
privilege

concluded,

evidence,

that

for the ordinary business
It goes without

Jones,

(holding that the burden
29

material

purpose

of

saying that if the
or inaccurate,

to sustain that burden"
v.

based

Plaintiffs

to show that the disputed

is later shown to have been misleading

it is no longer sufficient

to

to asserting

but Judge Schulze

sufficient

"sustain its burden

was not prepared

evidence

protection,

decision

696 F.2d

(ECF No. 213,

1069, 1072

is on the proponent

(4th

of the

privilege

to

demonstrate

relationship

existed,

communications

at

"not

was not

are

the

camera,

were

privileged,

provide

the

very

pre-December

basis
in

and

authorized

him

Travelers'

claims

to

Defendants."

Defendants,
declaration
Prowess,
motion
plaintiff

the

(ECF No.

that

information

to

the

that

Plaintiffs
itself

declaration
did

be

attorney

or

submit
failed

document itself

a
to

the

was privileged

the

to

has

support

and work product

2).

Despite

would

include

at

not

wish

to
that

or

in

camera

basis

for

or protected)
30

confidential

Court

privilege

in
that

Travelers

that

the

created
argued

would present

to

not

supplement

Plaintiffs

privileged

document for
provide

an

were not

No. WDQ-11-1357, 2013 WL 1856348,
to

in

review

have not demonstrated
would

submitted

in camera documents challenged

202,

Travelers

of

to

determined

only

burden

explain

to

of attorney-client
respect

their

did

information

disclose

privilege

Plaintiffs

Further,

protected

with

assertion

that

s In Camera Declaration

privileged

protections

allegedly

litigation.

the

2008 documents,

Schulze

she already

particular

the

sustain

follows

Judge

camera -

of

"Mr. Janaskie'

by

for

documents that

anticipation

it

attorney-client

and that

to

8,

an

that

privileged

By failing

showing that

that

also

but

issue

waived.")

declaration

only

this

broad

privileged
disclose
the

in camera

protected.
at

*15

review
asserting

to

See

(denying

a

where

the

that

the

Even

in

affidavits,

they

allowing

the

where

courts

recognized

in

1994)

(" [iln

ultimate

court

district

See

Pack v.

both

camera affidavits

district

may

the

and

instances,

all

justification

in

Pack

(citing

the
in

at

227

n.1.

to
of

would further

record
compel.

See

(" [W] cannot
e
the

district

relying

determine
United
ignore
courts,

of

States

the

disputed

Judge

acti vi ties

whether
States
the

its
court

or private,

Schulze

to

that

Notably,
the

sufficient,

affidavits

did

but

with

not

an
157

find

it

camera

in

Plaintiffs

and

grant

purported

by counsel

in

sufficient

factual

Defendants'

motion

the

to

491 U.S. 554, 571-72 (1989)
in

may well
31

Justice,

"normally

proffered

developed

burdens

of

information."

undertaken

v. Zolin,

which

that

augment the

counsel

on a

and

at

district

Dept.

would be

Plaintiffs'

outside

explain

2008,
to

its

the

observed

to

Here,

arriving

(emphasis added))

affidavits

consider

declaration

of

court

review

in

exceptional

authorized

form, public

United

1981))

necessary

ex parte

necessary

Fall

the

226,

advanced by the government for

Lame v.

appropriate

found it

camera,

F.R.D.

Beyer,

of

Court

in whatever

922 (3rd Cir.

v.

submission

it,

in

are

them

camera

discretion

and the

submissions

In both

to

654 F.2d 917,

ordinary

in

157 F.R.D.

Beyer,

to

must have furnished

non-disclosure."

allowed
court's

resort

determination.

of the detailed

have

the

such submissions.

229 (D.N.J.
case,

cases

camera
be

review

required

places
to

upon

evaluate

large
the

evidentiary
parties.

judge

in

Before

should

support

require

review

citations

at

of

[of

not

has

a factual

basis

may reveal

adequate

to

the

burdened

that
evidence

22, 2003)

routinely,

but
an

in

evidence

(holding

camera review
has

to

submitted
extent

the

3392, 2003 WL161340,
in camera

only after

adequate

to

(internal

party

No. 02 civ.

to

No. 93-CV-6733, 1995

Co.,

("[R]esort

other

by
'the

person'

1995)

and

submitted

camera review

Coleman

v. Paduano,

be undertaken

privilege

v.

after

*14 (S.D.N.Y. Jan.

guidance

privilege/protection]".)

Caruso

only

Weber

in

materials

the

affidavits

possible.");

in

by a reasonable

*1 (E.D.Pa.

appropriate

detailed

at

belief

omitted));

WL 384602,

open adversarial

a showing of

claim

the

establish

without

engaging

a good faith

camera

is

records

the

record

review

party
to

should

asserting

support

the

claim) .
A review
July
to

24,

examination

will

the

record

demonstrates

2013 Order was neither

law and

Plaintiffs'

of

she

acted

of

a

outside

well

clearly

within

proffered
counsel.

in

her

that

Judge

erroneous
discretion

camera

Accordingly,

Schulze's

nor
in

contrary
deferring

declaration
Plaintiffs'

from

objection

be overruled.
B.

Motion to Seal

A motion to

seal

must comply with

provides:
32

Local Rule 105.11,

which

Any motion seeking the sealing of pleadings,
motions,
exhibits or other papers
to be
filed in the Court record shall include (a)
proposed
reasons
supported
by
specific
factual
representations
to
justify
the
sealing
and
(b)
an
explanation
why
alternatives
to sealing would not provide
sufficient protections.
The Court will not
rule upon the motion until at least fourteen
(14) days after it is entered on the public
docket to permit the filing of objections by
interested parties.
Materials that are the
subject
of
the
motion
shall
remain
temporarily sealed pending a ruling by the
Court.
If the motion is denied, the party
making
the
filing
will
be
given
an
opportunity to withdraw the materials.

Local Rule 105.11

This rule endeavors

(D.Md. 2011).

the common

law right

documents,

Nixon

to inspect
Warner

v.

(1978),

while

recognizing

outweigh

the public's

and copy

Commc'ns,
that

judicial

Inc.,

435

competing
In

right of access,

to protect
records

U.S.

interests
re Knight

and

589,

597

sometimes
Publ'g

Co.,

743 F.2d 231, 235 (4th Cir. 1984).
Before
non-moving

sealing
party

opportuni ty
satisfied
courtroom

to
by

any

with

documents,
notice

obj ect.
either

the

consider

less

issue."

notifying

drastic

redacted versions

Id.

the

This

Id.

or by docketing

deciding

of

the

the

234.

alternatives

of the documents.

33

must

request

to

notice

the motion
at

court

provide

the

seal

and

an

requirement

may

be

persons

present

"reasonably
Finally,

to sealing,

in

the

in advance

the

court

such

as

of

should
filing

If the court decides

that

is

sealing

appropriate,

should

it

also

provide

reasons,

supported by specific factual findings, for its decision to seal
and for rejecting alternatives.

Id. at 235.

On August 29, 2013, Defendants
seal

filings

Plaintiffs'

objections

(ECF No. 226).
to

of

the

documents

"constitute

or

'confidential'

all

pursuant

(ECF No. 226 , 5).
[opposition]

is replete

designated

'confidential'

seal.

opposition
the

II

motion

Defendants

filed

(Id.

,

the parties'
to seal

will

of

exhibits,

on

filed

112

with

113)

&

the

and

opposition
that

testimony

Protective

are

Order."

further argue that "[bJecause the
references

to and

that

discussions

the

parties

to the Stipulated

unredacted

Protective

filed an opposition

Stipulated

pursuant

copies

Defendants

6).

24, 2013 Order.

(ECF Nos.

testimony

and accompanying

Stipulated

disclosure
The

deposition

Defendants

Order

the

with

to

Defendants point to the court-

deposition

Defendants

and

under

July

a number

exhibits

to

documents

Order,

including

Protective

response

Defendants'

Schulze's

(ECF No. 225)

Stipulated
that

to Judge

objections,

August 29, 2013.

emphasize

with

As noted above, Defendants

Plaintiffs'

approved

connection

in

filed an unopposed motion to

of

thus

the

of
have

Protective
[opposition]

request

that

its

exhibits be sealed to "give force to
Order,

and

confidential
be

granted

thereby

to

information."
for

the

reasons

have already redacted the appropriate
34

protect
(Id.'

from
8).

asserted.

material

in the

copy that was electronically

filed

(ECF No. 223) and have filed

both complete and redacted versions with the Clerk's office.
Furthermore,
to determine

as before,

what portions

information

that is under seal.

Opinion

will be filed under
it and suggest

will

not

endeavor

(if any) of this Memorandum

contain

to review

the undersigned

Rather,

the Memorandum

seal, and the parties

jointly

any necessary

Opinion

are directed

redactions

that

should be made before it is released to the public docket.
IV.

Conclusion

For
overruled.

the

foregoing

reasons,

Defendants'

motion

Plaintiffs'
to

seal

objection

will

be

will

granted.

separate order will follow.

lsi
DEBORAH K. CHASANOW
United States District Judge

35

be
A