Routine Business Not Protected Work Product
In Aerojet Rocketdyne, Inc. v. Global Aerospace, Inc., et al., No. 2:17-cv-01515-KJM-AC,
United States District Court, E.D. California (October 25, 2023) an
insurance coverage dispute wastes the time of the court and are
admonished by the court.
FACTUAL BACKGROUND
In a long-running insurance coverage dispute that was prolonged for
several years by defendant Global Aerospace Inc.'s refusals to produce
evidence in response to requests from plaintiff Aerojet Rocketdyne, Inc.
The root of the disagreement was Global's assertion of attorney-client
privilege and work-product protections.
The Magistrate Judge determined the disputed evidence was not protected
by the attorney-client privilege or work product doctrine, and the court
denied Global's repeated requests to revisit that decision. In short,
although attorneys were involved in the disputed investigation,
communications with them were not privileged, and their work product was
not protected; the investigation was part of the company's routine
business. It was not conducted in anticipation of litigation.
Several defendants, including Global, have now moved for summary
judgment. Briefing is ongoing. The exhibits are excerpts of transcripts
from two depositions marked “confidential” under the terms of a
discovery protective order. The witnesses were Katherine Posner and
Wendy Grossman, two attorneys at the center of the dispute about
privilege and work product. The defendants argued the transcripts are
“sensitive” and must be sealed because they “would ordinarily be
protected by the attorney-client privilege and work product doctrine.”
The courts of this country recognize a general right to inspect and copy
public records and documents, including judicial records and documents.
Although that right is not absolute, a strong presumption in favor of
access is the starting point. This presumption is based on the need for
federal courts, although independent-indeed, particularly because they
are independent-to have a measure of accountability and for the public
to have confidence in the administration of justice.
When documents are filed with motions more than tangentially related to
the merits of a case, such as alongside a motion for summary judgment, a
party who asks to keep them secret must meet the high threshold of
showing that compelling reasons that support that request. This standard
applies even if the documents have previously been filed under seal or
are covered by a generalized protective order, including a
discovery-phase only protective order.
Once confidential discovery documents are made part of a dispositive
motion they lose their status of being raw fruits of discovery. They no
longer enjoy protected status without some overriding interest
DOCUMENTS UNDER SEAL
