Court Denies Counsel’s Attempt To Use Confidential Documents Obtained In Reinsurance Arbitration In Separate Litigation

Carlton Fields
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A reinsurer that was engaged in a London arbitration against a captive insurer of a defense contractor for the U.S. Navy had obtained documents from the Navy subject to an agreed confidentiality protective order limiting use of the documents to the arbitration. While counsel was negotiating the terms of the protective order, counsel brought his own $2.5 billion qui tam action based on the confidential documents, against the defense contractor in a separate proceeding in Mississippi. Ultimately, the Mississippi court excoriated counsel and dismissed the qui tam case because counsel utilized the confidential documents in violation of the protective order. While counsel’s appeal of the Mississippi case was pending, counsel attempted to reopen the protective order proceedings and modify the order, contending that his violation of the order was due to “inadvertent noncompliance.” The court denied counsel’s request, ruling that the counsel was not a party to the protective order proceedings (his client was), and therefore had no standing to reopen the case to modify the order without first moving to intervene in the case. The court further held that counsel did not satisfy “good cause” to modify the protective order because (i) counsel previously advocated in favor of entry of the protective order, (ii) counsel obtained the documents from the Navy with ulterior selfish motives, and (iii) counsel disingenuously argued to the court that his violation of the order was an inadvertent mistake. Münchener Rückversicherungs-Gesellschaft Aktiengesellschaft In München, v. Northrop Grumman Risk Management, Inc., Case No. 1:10-cv-00551 (USDC D.D.C. Dec. 9, 2015).

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