Protective orders have become a real challenge and obstacle to the efficient representation of clients.  We often see opposing parties – typically large insurance companies – seek to keep documents secret during the course of discovery. The stated excuse is often that the documents are highly confidential trade secrets that would work a competitive disadvantage were they to fall into a competitors hands, despite the obvious fact that the litigants seeking disclosure of the information aren’t in any way in competition with the parties seeking to hide the documents and information.

The real reasons for keeping documents secret are almost always something quite different.  The insurer may find the document damaging to its litigation position or even its reputation, and they want to keep the documents away from the public eye.  Similarly, the insurer may simply want to “divide and conquer,” as they know that insurance litigation sometimes “takes a village” and it’s important for consumers and their attorneys to be able to collaborate in evaluating bad insurance practices.   Whatever the reason, the insurance industry, as well as other industries, have pushed as hard as they can to shield important information from the public eye.  And for the most part, they are getting away with it.

Fortunately for consumers, Dallas Morning News Reporter, Sue Ambrose, has done a great job of shining a light on this practice.  In her article this weekend, “Could Texas’ high court curb trade-secret sharing in safety lawsuits?” Ambrose delved into the usage of protective orders in litigation and focused on a General Motors case that was pending before the Texas Supreme Court.  That case settled, but the issue remains an important question for Texas policyholders and consumers.  Firm Partner Jeff Raizner was quoted in the article, and Raizner Slania frequently confronts and opposes efforts to impose restrictive protective orders on its clients.

Many years ago, the Texas Supreme Court in the Garcia v. Peeples decision forbade protective orders that do not allow for reasonable provisions that permit the sharing of documents among similarly situated parties.  Like General Motors, product manufacturers and the insurance industry have worked hard to dial back the law and challenge the rights of policyholders and consumers to fairly evaluate and prosecute their claims. Ambrose’s recent article highlights the challenges that Texas policyholders and consumers face in addressing protective order issues in the courts.

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