Guild had no objection to the district court granting Ace access to the settlement agreement, as the settlement agreement contained no trade secrets or proprietary information.

BEW, however, opposed Ace's motion.

The District Court's Decision

The district court granted the motion.

In its decision, the district court explained that courts "routinely" have found that third parties had standing to challenge protective orders and confidentiality orders in an effort to obtain access to information or judicial proceedings.

Moreover, the district court continued, courts have compelled the production of a confidential settlement agreement where, among other things, it might be relevant to the issue of damages at trial. The district court noted that the U.S. Court of Appeals for the Sixth Circuit has recognized that the privilege protecting settlement negotiations from discovery did "not extend to the terms of the final agreement."

Therefore, the district court said, absent some privilege or other compelling reason to protect the contents of a settlement agreement, there was "a strong policy in favor of granting the public access to such documents."

The district court then noted that BEW did not argue that the contents of its settlement agreement with Guild were protected by privilege. Rather, the district court said, BEW contended that the settlement agreement had no relevance to the issue of damages in the related action. The district court, however, emphasized that whether the settlement agreement was ultimately admissible in that action was a question for the trial judge in the Western District of Washington and that BEW could raise its objection in that forum.

The district court then found that the settlement agreement might contain information relevant to the related action. It said that it found ACE's summary of this potential overlap "particularly insightful":

In this case, BEW filed a Counterclaim against Guild seeking, among other items, these categories of damages: (1) $2,969,330 for changes to the BEW gas-purification process allegedly demanded by Guild; (2) $1,033,200 in lost revenues allegedly suffered by BEW from August 2012; and (3) property damage in the amount of $3,565,357, which includes a ruling that BEW does not owe the remaining $2.3 million for the replacement media.

BEW, however, is seeking the same damages in the Related Litigation. Specifically, BEW is seeking: (1) $2,969,339 as costs incurred to meet Guild's demands; (2) loss of revenues that may or may not overlap; and (3) property damage in the amount of $3,565,357, which includes the $3 million for the replacement absorbent.

The district court granted Ace's motion based on the "strong policy favoring public access to judicial proceedings," and because producing the settlement agreement for the "limited purpose" that Ace requested presented no danger of revealing privileged information.

The case is Navigators Specialty Ins. Co. v. Guild Associates, Inc., No. 2:14-cv-01676 (S.D. Ohio Nov. 12, 2019). Attorneys involved include: For Guild Associates, Inc., Defendant: John Stephen Teetor, LEAD ATTORNEY, Isaac Wiles Burkholder & Teetor, LLC, Columbus, OH; Scyld D Anderson, Isaac Wiles Burkholder & Teetor, LLP, Columbus, OH. For Bio-Energy (Washington) LLC, Defendant: Christopher R Pettit, LEAD ATTORNEY, Lane Alton & Horst, Columbus, OH; Robert J Rauch, PRO HAC VICE, Law Offices of Robert J Rauch, Bow, WA. For BASF Corporation, Movant: Christine M Haaker, LEAD ATTORNEY, Thompson Hine LLP, Dayton, OH. For Ace American Insurance Company, Movant: Sabrina Christine Haurin, LEAD ATTORNEY, Bailey Cavalieri LLC, Columbus, OH; Tracey Anne Jordan, PRO HAC VICE, Foran Glennon Palandech Ponzi & Rudloff PC, Chicago, IL.