United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge.
matter is before the Court on a Motion in Limine, ECF No.
215, submitted by Defendant Colony National Insurance Company
(Colony), seeking to remove certain depositions and exhibits
from the scope of a Protective Order, ECF No. 84. For the
reasons discussed below, Colony's Motions will be denied,
without prejudice to reassertion after trial.
case is set for a trial to the bench, commencing on March 20,
2018. At issue is whether Colony, the excess insurer for a
contractor (DBI) hired by UP to cut vegetation at a railroad
crossing, must indemnify UP for part of UP's $6.5 million
pre-trial settlement of an Oklahoma wrongful death action
prove allocation, parties can present testimony from
attorneys involved in the underlying lawsuits, evidence from
those lawsuits, expert testimony evaluating the lawsuits, a
review of the underlying transcripts, or other admissible
evidence.” UnitedHealth Group, Inc. v. Executive
Risk Specialty Ins., 870 F.3d 856, 863 (8th Cir. 2017)
(citing Nodaway Valley Bank v. Cont'l Cas. Co.,
916 F.2d 1362, 1365-66 (8th Cir. 1990)). “The
allocation inquiry examines how a reasonable party in [the
insured's] position would have valued the covered and
non-covered claims. In evaluating the claims, we look to what
the parties knew at the time of settlement.”
Id. “Allocation require[s] either
contemporaneous evidence of valuation or expert testimony on
relative value to provide a reasonable foundation for a
[fact-finder's] decision.” Id. at 865.
10, 2015, Magistrate Judge F.A. Gossett issued a Protective
Order, ECF No. 84, at the joint request of the parties. The
Protective Order allowed the parties to designate
information, documents, and testimony produced during
discovery as “confidential, ” limiting the
disclosure of such material to the parties, the Court, and
other listed categories of persons associated with this case.
Under the Protective Order, if counsel for a non-disclosing
party objected to a disclosing party's designation of
material as “confidential, ” counsel for the
non-disclosing party could notify counsel for the disclosing
party, in writing, specifying the materials improperly
classified and the basis for the objection. Upon receipt of
such an objection, counsel for both parties had an obligation
to negotiate in good faith to resolve the objection. If such
negotiation failed, counsel for the disclosing party could
file a motion with the Court within 30 days of the objection,
regarding the designation of the material as confidential. If
no such motion were timely filed, the materials would no
longer be considered confidential. Id.
February 13, 2018, counsel for Colony sent a written
objection to counsel for UP, by email, objecting to UP's
designation of the following depositions and exhibits as
“confidential”: Depositions of John Ziegler,
Richard Hautzinger, Robert Hart, Joseph Ferris, Jay Pfeiffer,
Joe Ferguson, and Sharon Van Dyke; and Exhibits 300-302,
304-05, 308-13, 315-19, 372, 374, 383, 388, 395, 397-99, 434,
458-460, and 462. Colony argues that the public has a common
law right of access to public proceedings in general, citing
IDT Corp. v. Ebay, 709 F.3d 1220, 1223 (8th Cir.
2013), and a strong interest in access to the materials at
issue here, because they relate to matters of public health
and safety, citing Healey v. I-Flow, LLC, 282 F.R.D.
211, 214 (D. Minn. 2012).
the terms of the Protective Order, UP had until March 15,
2018, to file a motion with the Court regarding the
designation of the materials as confidential. The Court finds
that UP's Brief in Opposition to Colony's Motion in
Limine, ECF No. 243, satisfied that requirement. In its
Brief, UP argues that Colony failed to present a valid
objection to UP's designation of materials as
“confidential, ” because Colony did not state a
basis for its objection, as required by the Protective Order.
UP also notes that Colony will be under no disadvantage at
trial by virtue of UP's designation of certain materials
as “confidential, ” because Colony has had full
access to all the materials. UP asserts the materials should
remain confidential because they would be protected by
attorney-client or work-product privileges, but for
UP's limited waiver of such privileges for purposes of
this allocation proceeding, and the materials could be used
against UP unfairly if released to the public or to witnesses
and attorneys involved in adversary proceedings with UP.
Finally, UP notes it is unclear how and whether the
depositions and exhibits listed by Colony in its objection
will be used at trial.
regard to Colony's basis for its objection, it
is asserting the common law right of the public to gain
access to judicial records, noting that the public interest
in such access is especially strong when public health and
safety are at issue.
IDT, a public law center moved to unseal a complaint
in a patent infringement case. 709 F.3d at 1221. The district
court denied the request, and the Court of Appeals remanded
the matter for the district judge to consider redaction as an
alternative means of protecting sensitive business
information. Id. The Eighth Circuit recognized the
common-law right of access to judicial records in civil
proceedings, but noted that the right is not absolute.
Id. at 1222 (citing In re Reporters Comm. For
Freedom of the Press, 773 F.2d 1325, 1333 (D.C. Cir.
1985); Nixon v. Warner Commc'ns., Inc., 435 U.S.
589, 597 (1978), and In re Reporters Comm. For Freedom of
the Press, 773 F.2d 1325, 1333 (D.C. Cir. 1985)). It
observed that the companies asserting confidentiality
acquiesced to treatment of the complaint as a “judicial
record” subject to the presumption of public access.
Id. Because the presumption of public access
therefore attached, it was incumbent upon the district judge
to “consider the degree to which sealing a judicial
record would interfere with the interests served by the
common-law right of access and balance that interference
against the salutary interests served by maintaining
confidentiality of the information sought to be
sealed.” Id. at 1223.
Healey, a U.S. Magistrate Judge in the District of
Minnesota unsealed certain documents in an action brought
against the manufacturer of a medical pain pump. 282 F.R.D.
at 216. The Magistrate Judge quoted Grove Fresh
Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 898
(7th Cir. 1994), for the proposition that “the common
law right of access applies to all ‘judicial decisions
and the documents which comprise the bases for those
decisions.'” Id. at 214. He noted that the
party seeking to maintain confidentiality has the burden of
overcoming the presumption of public disclosure by
demonstrating compelling reasons for confidentiality, such as
the likelihood that disclosure will harm the party.
Id. at 215 (citing In re Neal, 461 F.3d
1048, 1053 (8th Cir. 2006)). He also observed that such
questions of fact should be resolved by the court after
receiving evidence. Id. at 214 (citing In re
Iowa Freedom of Info. Council, 724 F.2d 658, 663 (8th
only one of the exhibits listed by Colony in its objection,
318, was received into evidence at the pretrial conference.
See Order on Final Pretrial Conference, ECF No. 237,
Page ID 8122. It is unclear at this time whether the other
exhibits and depositions will be offered and received, or
used at trial in any other manner. In its Reply Brief, ECF
No. 246, Colony “limits its challenge to the Documents
that are actually used at trial by Union Pacific or
Colony.” Id. at Page ID 8279.
appears to concede that the depositions and exhibits listed
in its objection are not yet “judicial records”
subject to the presumption of public access, and it would be
premature for the Court to attempt to rule on Colony's
objection. If the exhibits and depositions listed by Colony
in its objection are received into evidence at trial, Colony
may reassert its objection to UP's designation of the
exhibits and depositions as “confidential.” At
that time, the Court will determine whether the material is a
“judicial record, ” subject to the presumption of