from continuing to provide "underlying insurance."
Communications about the status of primary carrier coverage through brokers or otherwise which were not signed by the parties or reflected verbatim in the policy itself should be disregarded. Where one would expect an important term to be in writing and signed, a contrary position is implausible
and may be rejected absent additional evidence to support that contrary position. See Consarc v. Marine Midland Bank, 996 F.2d 568 (2d Cir 1993); TIAA v. Tribune Co., 670 F. Supp. 491, 497 (SDNY 1987).
The nature of the voluminous but inconclusive information about nonbinding communications with brokers and others provided in this case reinforces the applicability of this approach.
Several carriers have moved to dismiss the case as to them on grounds of absence of a case or controversy under Article III of the Constitution. See generally Bank of New York v. Northeast Bancorp, 9 F.3d 1065 (2d Cir 1993). The moving carriers argue that the primary carriers' policy limits are so unlikely to be exhausted that the excess carriers will never be reached, thus removing any genuine controversy over the issues addressed here.
Statistical evidence which need not be set forth in detail here makes it clear that a significant portion of Squibb's DES exposure remains in the future, and that it is highly uncertain whether primary carriers' policies will cover it.
Further, the likelihood that primary carriers' policy limits will be exhausted is greatly increased if, as required by the policy language as interpreted here and contrary to the moving carriers' position, policy limits of the primary carriers may be exhausted by settlement as well as payment.
Under the circumstances, declaratory relief to settle the legal relations between the parties is useful and appropriate. Continental Casualty Co v. Coastal Savings Bank, 977 F.2d 734 (2d Cir 1992).
All excess carrier defendants have joined in the contest of the substantive issues in the case, which is at least obliquely contrary to the argument that they have no interest in the outcome. The complaint was filed in 1982; no motions challenging existence of a genuine controversy were filed until February 15, 1993, eleven years after the filing of this case and almost a year after the April 1992 order. While such delay would not create a genuine controversy were one absent, it is a significant indication that only an afterthought is involved. See generally Robins Island Preservation Fund v. Southold Development Corp, 959 F.2d 409, 421-15 (2d Cir), cert. denied 113 S. Ct. 603, 121 L. Ed. 2d 539 (1992).
It is not possible on the current record to determine with specificity what monetary amounts, if any, are due or will become due from any of the defendants. The main legal principles which were in dispute having been declared, such remaining matters are best resolved by negotiation.
The parties are directed to discuss settlement of the case in light of the rulings now made, and also to consider agreeing upon the appointment of a single arbitrator chosen to resolve present and possible future disagreements. Should the parties fail to agree, the court will consider appointment of a special master at the expense of the litigants to make recommendations for any monetary payments which may be indicated.
The parties have filed numerous documents including memoranda of law under seal pursuant to a protective order designed to insure confidentiality of information, disclosure of which would be harmful to the parties. The protective order has been treated as authorizing sealing of almost all items filed with the court, including in their entirety massive numbers of exhibits and memoranda of law. The latter consist primarily of legal argument rather than confidential factual information. The effect has been to burden the Clerk of this court with unnecessary sealed material and to deny ready access to information about the decisionmaking processes of the judiciary. This situation is unacceptable.
The chief arguments for confidentiality with respect to any of the documents in this case appears to be (a) that one carrier should not know the settlement posture of another lest plaintiff bargain against itself, a risk largely erased by the determinations made in this memorandum order, and (b) that plaintiffs in DES injury lawsuits may benefit adventitiously from the pendency of the current litigation by knowing the extent of Squibb's insurance coverage or by acquiring medical data known to one or more parties to the present case.
No sensitive commercial information or trade secrets of the type mentioned in Fed.R.Civ.P. 26(c)(7) are involved, although confidentiality of medical information dealing with identifiable individuals is an interest recognized under Fed.R.Civ.P. 26(c). See Gottlieb v. County of Orange, 151 F.R.D. 258 (SDNY 1993). Withholding other medical information known to a party might well lead to adverse inferences in the personal injury litigation. See generally Baxter v Pal mi giano, 425 U.S. 308, 318, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976); United States v Torres, 845 F.2d 1165, 1169 (2d Cir 1988); Gray v Great American Recreation Ass'n, 970 F.2d 1081, 1082 (2d Cir 1992). The 1993 amendments to Fed.R.Civ.P. 37(c)(1) provide that sanctions for failing to provide required discovery "may include informing the jury of the failure to make the disclosure."
There is no obvious special reason for retaining secrecy which would apply to the amount of material that has been labelled confidential. See generally In re Orion Pictures Corporation, Slip Op 3187, Dkt No 93-3095 (2d Cir April 13, 1994). The private benefits and harms of disclosure of the material mentioned may well be evenly balanced, giving great weight to the interest of the public in knowing the nature of material utilized in litigation (as distinct from mere discovery material obtained in litigation but not so utilized). See Levy v. Weksel, 143 F.R.D. 54 (SDNY 1992).
Although the material at issue is that submitted by the parties for use in decision rather than retained by them as a result of discovery, and no interest in confidentiality on the level of that provided by trade secrecy (see Fed.R.Civ.P. 26(c)) is involved, it would be premature to adjudicate whether or not some of the sealed material should be unsealed without a full-scale adversary presentation on behalf of the opposing interests at stake. See In re New York Times, 828 F.2d 110 (2d Cir 1987); In re CBS, 828 F.2d 958 (2d Cir 1987); Westmoreland v. CBS, 752 F.2d 16, 22-23 (2d Cir 1984), cert. denied 472 U.S. 1017 (1985); In re NBC, 635 F.2d 945, 949 (2d Cir 1980).
The parties are directed to file publicly available copies of all memoranda of law and Local Rule 3(g) statements, omitting only material which they can certify under Fed.R.Civ.P. 11 to contain genuinely confidential material. See McGrane v. Reader's Digest, 1993 WL 525127, 1993 U.S. Dist. LEXIS 17790 (SDNY 1993).
There is nothing in the Federal Rules of Civil Procedure which requires the Clerk to retain bulky exhibits. The Appellate Rules are, indeed, explicit on the point. Fed.R.App.P. 11(b), P 2. The Clerk is directed to return to the parties, and the parties are directed to maintain until final conclusion of this litigation, all exhibits filed under seal to date in this case. No additional material shall be filed under seal without further order.
Dated: White Plains, New York
May 20, 1994
VINCENT L. BRODERICK, U.S.D.J.