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In re Rumnock

Supreme Court of Colorado, En Banc

December 5, 2016

In Re: Stephen Rumnock, Plaintiff
v.
Dennis Anschutz and American Family Mutual Insurance Company, a Wisconsin company licensed to do business in Colorado, Defendants.

         Original Proceeding Pursuant to C.A.R. 21 7 District Court, City and County of Denver, Case No. 11CV1387 8 Honorable A. Bruce Jones, Judge

          Attorneys for Plaintiff: Taussig & Taussig, P.C. John G. Taussig, III Deborah L. Taussig Scott D. Smith Boulder, Colorado

          Attorneys for Defendants: Campbell, Latiolais & Averbach, LLC Rebecca Wagner Kirstin M. Dvorchak Denver, Colorado

          Attorneys for Amicus Curiae United Policyholders Merlin Law Group William F. Merlin, Jr. Tampa, Florida Amy Bach San Francisco, California

          Attorneys for Amicus Curiae United Policyholders Merlin Law Group William F. Merlin, Jr. Tampa, Florida Amy Bach San Francisco, California

          RULE DISCHARGED

          HOOD JUSTICE

         ¶1 This original proceeding involves a discovery dispute between plaintiff Stephen Rumnock and defendant American Family Mutual Insurance Company ("American Family"). After being ordered to produce documents that Rumnock had requested, American Family disclosed some of the documents but almost simultaneously moved for a protective order. The motion sought to preclude Rumnock from using or disclosing the documents-alleged to be trade secrets-outside of this litigation. The trial court granted the motion in part and denied it in part, ordering that the alleged trade secrets not be shared with American Family's competitors but declining to further limit their use.

         ¶2 American Family petitioned this court under C.A.R. 21 to direct the trial court to enter a protective order limiting the use and disclosure of the documents to the needs of this litigation. American Family asserted the existing protective order was insufficient because it would allow Rumnock to share the alleged trade secrets with non-competitor third parties, who could in turn share them with American Family's competitors. We issued our rule to show cause.

         ¶3 We now discharge our rule because American Family failed to present to the trial court evidence demonstrating the documents are trade secrets or otherwise confidential commercial information.

         I. Facts and Procedural History

         ¶4 An uninsured driver crashed into Rumnock's company car, injuring him. Rumnock brought negligence claims against the driver and uninsured/underinsured motorist claims against his insurers, including American Family. American Family opposed Rumnock's efforts to recover under the policy but eventually paid him the policy limits. He then amended his complaint to add bad-faith and abuse-of-process claims against American Family, alleging unreasonable litigation conduct.

         ¶5 Rumnock requested that American Family produce documents showing, among other things, its procedures, policies, and guidelines for handling uninsured motorist claims. American Family's responses were due September 10, 2015. Rumnock emailed American Family regarding the discovery requests on September 2, 11, 23, and 25, but American Family did not respond or seek an extension or protective order. Rumnock requested a discovery hearing, and on October 8 the court scheduled a hearing for October 29. Rumnock continued to email American Family requesting discovery responses up to the morning of the October 29 hearing.

         ¶6 When the hearing was held-seven weeks after American Family's discovery responses had been due-American Family still had not responded or requested an extension or protective order. The trial court awarded Rumnock attorney fees, ordered American Family to "respond fully, completely and responsibly to the pending discovery" by the "close of business on November 6th, " and ruled, "All objections are waived."

         ¶7 At 5:06 p.m. on November 6th, American Family disclosed some of the requested documents; two hours later, it filed a motion for a protective order. The motion asserted the internal documents governing claims handling were trade secrets and sought ...


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