Mine Safety Appliances Co. v. North River Insurance (73 F. Supp. 3d 544, 2014)

OPINION

DAVID STEWART CERCONE, District Judge.

Plaintiff commenced this action seeking redress for defendant North River Insurance Company’s (“defendant”) failure to pay proceeds under an umbrella commercial general liability policy for tendered losses arising out of underlying lawsuits advancing personal injury and wrongful death claims against plaintiff. Presently before the court are motions to file documents under seal and to redact privileged and/or confidential information from briefs and/or statements of material fact to be submitted in conjunction,with each party’s contemplated motion for summary judgment. For the reasons set forth below, plaintiffs motion will be denied and defendant’s motion will be granted in part and denied in part.

Plaintiffs averments place the parties’ dispute in the following context. “This is [an insurance.coverage action] for breach of contract and statutory bad faith arising out of the failure and refusal of [defendant North River Insurance Company] (as the issuer of an umbrella liability insurance policy to [plaintiff]) ... to honor the contractual and legal obligations [owed to plaintiff] in connection with asbestos, silica, and coal workers’ pneumoconiosis (“CWP”) bodily injury (including death resulting therefrom) lawsuits in which [plaintiff] has been named as a defendant.” Amended Complaint at ¶ 1. The applicable umbrella liability insurance policy (“the policy”) allegedly obligates defendant to pay for defense costs and to indemnify plaintiff for amounts paid in settlement and satisfaction of judgment in those bodily injury lawsuits. Id. at ¶ 2. The policy follows the form of a Hartford policy. Id. at ¶ 13. Defense costs assertedly are “in addition to the applicable limit of liability of’ the policy. Id. at ¶ 19.

“Since at least the 1980s, [plaintiff] has been sued in numerous bodily injury lawsuits in jurisdictions across the country, the majority of which involve respiratory protection and/or protective clothing products allegedly manufactured and sold by [plaintiff] (the “Underlying Claims”).” Id. at ¶ 20. Plaintiff began to tender numerous settled underlying claims to defendant for indemnification in 2007 and continued to do so in 2008. Id. 'at ¶¶ 24-26. Plaintiff reiterated its demand for payment in February of 2009 and informed defendant that pursuant to J.H. France Refractories Co. v. Allstate Insurance Co., 534 Pa. 29, 626 A.2d 502 (1993), it was selecting defendant “to assume responsibility pursuant to the Policy for the indemnity and defense costs associated with other settled Underlying Claims” which encompassed the settlement of lawsuits involving claims by approximately 400 claimants. Id. at ¶ 28. Plaintiff seeks to establish that defendant is in breach for failure to abide by the policy provisions governing indemnity for covered losses for bodily injury claims in the amount of $20,274,186.00 and defense costs of $1,107,375.00. Id. at ¶¶ 17-19, 29, 39-43. Although claims exhausting the aggregate policy limit have been tendered to defendant, plaintiff continues to incur defense costs on the underlying claims. Id. at ¶ 32.

In addition, plaintiff has designated defendant “to assume responsibility for the defense costs associated with certain open Underlying Claims and certain closed-but-not-settled Underlying Claims, as well as certain general expenses billed by [plaintiffs] national coordinating counsel and local defense counsel” as well as certain “non-settled Underlying Claims brought by another approximately 400 claimants.” Id. at ¶ 30. The defense costs for these claims and the general expenses are in excess of $8,900,000.00. Id. at ¶ 31.

Defendant assertedly has failed and refused to comply with its obligations under the policy. Id. at ¶34. It has not paid anything toward the amounts claimed by plaintiff. Id. at ¶ 34. Instead, it has responded with “a carefully and deliberately orchestrated effort to delay and/or avoid payment of proceeds due under the Policy, with the ultimate goal of leveraging [plaintiff] into accepting far less than that to which it is entitled under the Policy (and under other excess liability policies that [defendant] issued to [plaintiff].” Id. at ¶ 35. This effort has included:

(a) raising spurious questions regarding exhaustion of the Hartford policy; (b) raising spurious questions regarding the integrity of certain of [plaintiffs] local counsel, when that same local counsel had been relied on for years by other of [plaintiffs] insurers; (c) positing that the Policy does not obligate it to pay defense costs in addition to limits, when the Policy could not state [defendant’s] obligation to do so more clearly; (d) positing, after the fact, that [plaintiff] was required to obtain jury research to substantiate the reasonableness of amounts that it paid to settle certain claims, while never suggesting before the fact that such research was important to [defendant] or offering to pay for such research; (e) positing that [plaintiffs] claims experience in certain jurisdictions is irrelevant to the amounts that plaintiff has paid to settle Underlying Claims that have been presented for reimbursement under the Policy; (t) demanding that [plaintiff] provide reams of historical claims data that is wholly irrelevant to the Underlying Claims for which [plaintiff] has demanded payment under the Policy, and refusing to make such payments until [plaintiff] does so (and, even where [plaintiff] does so, still avoiding payment by simply issuing a new set of irrelevant and burdensome information requests); (g) refusing [plaintiffs] invitations to discuss directly with [plaintiffs] local and national counsel the basis for settlement recommendations that [plaintiffs] local counsel has made; (h) withholding from [plaintiff] information that [defendant] has learned in connection with other of its insureds who, like [plaintiff], are facing thousands of toxic tort claims in jurisdictions that are widely regarded as “plaintiff friendly,” and otherwise refusing to share its own expertise (on matters such as jury awards and settlement amounts that occur in various jurisdictions throughout the United States) with [plaintiff]; (i) eschewing its fiduciary obligation to work in a collaborative fashion with [plaintiff] to successfully defend and resolve Underlying Claims in favor of an inexplicably hostile and adversarial approach to [plaintiff]; and G) refusing to pay any Underlying Claims until [plaintiff] has provided claims information that goes far beyond what the Policy, the law, and even [plaintiffs] other insurers, require.

Id. at ¶ 36. Defendant’s orchestrated effort constitutes both a breach of its duties under the policy and bad faith insurance practices in violation of 42 Pa.C.S. § 8371. Id. at ¶¶ 37-38.

Plaintiff further explains in its brief that it seeks to establish that defendant owes coverage for 729 underlying claims. Declaration of William J. Berner (Doc. No. 653-5) at ¶ 5; Plaintiffs Brief in Support of Motion for Leave to File Documents under Seal and to Redact (Doc. No. 653) at 11. Sixty-six of those claims were still pending when plaintiff filed the instant motion. Id. Plaintiff also is defending more than 9,100 additional personal injury cases relating to the same or similar products. Id.

The parties have filed their respective motions to seal in conjunction with their respective contemplated motions for summary judgment. These motions can only be understood to be complex and voluminous: approximately one year ago the parties filed 10 separate motions on summary judgment seeking an adjudication on an issue-by-issue basis. At that time they also sought to file under seal separate briefs on each issue and numerous related documents, including briefs, concise statements of material fact and appendices in support. All of these filings were struck from the record for failure to comply with the controlling authority governing the submission of materials under seal in support of relief on the merits and as otherwise moot. See Order of March 12, 2013 (Doc. No. 645) (striking Doc. Nos. 595, 596, 600, 604, 606, 607, 611, 612, 616, 617, 618, 623, 624, 628, 631, 633, 635, and 637 and directing the Clerk to remove the documents from public view; denying 599, 603, 605, 610, 615, 622, and 630 for failure to comply with the controlling authority governing the submission of materials under seal in support of affirmative relief on the merits and otherwise denying as moot; and denying 594 as moot). A concomitant order was issued setting the schedule and procedures for re-filing motions for summary judgment and the submissions in conjunction therewith. See Order of March 12, 2013 (Doc. No. 646). The instant motions were filed pursuant to this scheduling order.

Extensive discovery was conducted pursuant to a protective order permitting the parties to designate documents and information as confidential. See Protective Order of January 4, 2011 (Doc. No. 69). This order authorized any party to make such a designation on the basis that the material being produced by the party or a third party contained “confidential, personal, trade secret, and/or commercial information, as those terms are defined under Federal law, not generally available in the public domain.” Id. at ¶ 8. Discovery was coordinated with a companion case captioned as The North River Insurance Company v. Mine Safety Appliances Company, Allstate Insurance Company, et al., GD No. 10-7432, and filed in the Court of Common Pleas of Allegheny County, Pennsylvania. An identical protective order was entered in the state-court action. The parties elected to coordinate discovery and utilize a discovery master in both actions. See Order of February 3, 2011, Appointing the Honorable Alan S. Penkower (Ret.) as Special Master For All Fact and Expert Discovery Disputes. The parties thereafter filed extensive discovery motions, many of which were filed under seal with redacted versions being disclosed to the public.

The parties’ March 2013 filings sought to honor and/or maintain the confidential designations previously made by the parties in discovery for the purpose of adjudicating the parties’ cross motions for summary judgment. As authority for maintaining portions of the supporting briefs and exhibits under seal the parties merely referenced the designations made under the protective order and/or the designations of third parties pursuant to the identical protective order entered in the companion state-court coverage litigation. See e.g. Plaintiffs Motion to File Documents Under Seal re: Trigger of Coverage for Coal-Mine-Dust-Related Claims (Doc. Nos. 610, 643). The scheduling order of March 12, 2013, informed the parties that any motion to submit filings under seal must demonstrate that the “relief is authorized by and in full compliance with the principles governing the court’s use of seal in conjunction with the right of access that attaches to matters that are submitted for an adjudication on the merits!,] • • • the parties will be required to meet their respective burdens in maintaining secrecy [and] [r]eliance on the confidentiality order entered in the instant case will be given minimal weight because of the over-inclusive nature of the protective order governing the parties’ discovery productions and disputes.” Order of March 12, 2018 (Doc. No. 646) at ¶ 5 (citations omitted).

A prevalent practice has developed in this district wherein litigants in civil cases seek to file materials under seal pursuant to little more than a designation of confidentiality by one or more of the parties pursuant to a broad protective order entered during the discovery phase of the case. The practice has long been employed during the discovery phase. It increasingly is being employed in the adjudicatory phase of the case without distinction between the two or acknowledgement of the differing standards that ultimately bear on the court’s use of its authority to seal. But there is an important difference between the showing required to obtain a protective order authorizing confidentiality during the course of discovery and the one needed to maintain documents and information under seal that are part of the judicial record of an adjudication. In re Cendant Corp., 260 F.3d 183, 192 (3d Cir.2001). And the parties’ motions seek to satisfy the later.

A common practice also has developed to permit the requested filings to be made without a thorough review where they are submitted without objection and then to examine them more closely only when a subsequent challenge is made to the ongoing necessity of keeping the documents under seal. See Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 166 (3d Cir.1993) (emphasizing the important difference between the scope and nature of the review undertaken where the parties seek without meaningful objection to maintain confidentiality over judicial records based on the showing needed for a protective order and the review undertaken pursuant to a dispute grounded in the public right of access doctrine).' The parties have not raised such a dispute or requested such a review.

Nevertheless, the court has an inherent obligation to review and supervise the files being placed on its docket and a concomitant obligation to assure that the use of its authority to keep matters from public scrutiny properly is being employed. Id. (“We must rely in the first instance on the district courts to protect the legitimate public interest in filed materials from overly broad and unjustifiable protective or-' ders agreed to by the parties for their self-interests.”) (citing United States v. Corbitt, 879 F.2d 224, 228 (7th Cir.1989) (“[T]he public’s right to inspect judicial records may not be evaded by a wholesale sealing of court papers. Instead, the district court must be sensitive to the rights of the public in determining whether any particular document, or class of documents, is appropriately filed under seal.”)). Further, we-believe that the parties are better served if • their proposed filings initially are reviewed under the standards that will govern any challenge to the use of this court’s seal and they are able to make informed decisions about such filings and the course of. the litigation in accordance with that initial assessment. We turn to that undertaking as it relates to the parties’ pending motions to seal.

The public right of access to judicial proceedings and records is integral and essential to the integrity of the judiciary. The common law right of access predates the Constitution. Bank of America National Trust and Savings Ass’n v. Hotel Rittenhouse Associates, 800 F.2d 339, 343 (3d Cir.1986) (“The right of the public to inspect and copy judicial records antedates the Constitution.”) (citing United States v. Criden, 648 F.2d 814, 819 (3d Cir.1981)). The existence of the right is beyond dispute. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 780-781 (3d Cir.1994) (citing Littlejohn v. Bic Corp., 851 F.2d 673, 677-78 (3d Cir.1988) (the public’s interest in access is “beyond dispute”) (internal quotation marks and citation omitted)); accord United States v. Martin, 746 F.2d 964, 968 (3d Cir.1984) (same).

The right is pervasive. In re Cendant, 260 F.3d at 192. It applies to all aspects of the judicial process where substantive determinations are made. Bank of America, 800 F.2d at 343 (presumption of right of access applicable to various pretrial hearings encompassing substantive rulings); United States v. Smith, 776 F.2d 1104, 1111-12 (3d Cir.1985) (“Although [the Supreme Court’s cases] concerned access to judicial proceedings, no reason occurs to us why their analysis does not apply as well to judicial documents, as we previously so applied it in Martin, 746 F.2d at 968.”) (citing Associated Press v. United States District Court, 705 F.2d 1143, 1145 (9th Cir.1983)). It likewise attaches to documents filed with the court in conjunction with a request for adjudicatory relief. Bank of America, 800 F.2d at 343; accord Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (The common law right of access gives rise to a presumption in favor of access to “public records and documents, including judicial records and documents.”).

The “presumption that the public has a right to inspect and copy judicial records serves numerous salutary functions.” Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 161 (3d Cir.1993). The right of access “in civil cases promotes public confidence in the judicial system.” Id: (quoting Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 660 (3d Cir.1991)). “As with other branches of government, the bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury, and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness.” Id. It attempts to assure the public gains “a more complete understanding of the judicial system and a better perception of its fairness.” Id. “In addition, access to civil proceedings and records promotes ‘public respect for the judicial process’ and helps to assure that judges perform their duties in an honest and informed manner.” Id. (citation omitted) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)); accord Publicker Industries, 733 F.2d at 1070 (“From these authorities we conclude that public access to civil trials ‘enhances the quality and safeguards the integrity of the fact-finding process.’ Id. It ‘fosters an appearance of fairness,’ id., and heightens ‘public respect for the judicial process.’ Id. It ‘permits the public to participate in and serve as a check upon the judicial process — an essential component in our structure of self-government.’ Id. Public access to civil trials, no less than criminal trials, plays an important role in the participation and the free discussion of governmental affairs.”) (quoting Globe Newspaper, 457 U.S. at 606, 102 S.Ct. 2613)).

The “strong presumption” of openness does not permit the routine closing of judicial proceedings. Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d Cir.1994). The United States Court of Appeals for the Third Circuit expressly has “applied the presumption of public access to a variety of civil hearings and records, including the transcript of a civil trial and exhibits admitted at trial, Littlejohn, 851 F.2d 673; settlement documents filed with the district court as well as post-ettlement motions, Bank of America, 800 F.2d 339; and a civil hearing for a preliminary injunction and transcripts of that hearing, Publicker Industries, 733 F.2d 1059.” Republic of the Philippines, 949 F.2d at 660. It also has applied it in a case where the claims have been adjudicated and no further recourse is available. Miller, 16 F.3d at 551.

“Access means more than the ability to attend open court proceedings; it also encompasses the right of the public to inspect and to copy judicial records.” Littlejohn, 851 F.2d at 678 (citing Criden, 648 F.2d at 819). This is because documents filed with a court in the course of adjudica-' tory proceedings generally must be presumed to have entered into the public domain. Leucadia, 998 F.2d at 161-62. The presumption thus extends to all “pretrial motions of a nondiscovery nature.” Leucadia, 998 F.2d at 164.

In contrast, conducting discovery is not undertaken as part of the public component of civil adjudication and the presumption does not attach to discovery motions merely seeking shelter from overly aggressive demands or to compel more adequate responses. Id. This historical understanding is buttressed by the mechanisms embodied in Federal Rules of Civil Procedure 5(d) and 26(c) which provide normative rules governing public access to discovery and a mechanism for a court to lift or modify a protective order that is precluding a party from making public unfiled discovery materials. Id. (citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 789-90 (1st Cir.1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989)).

The right of access applies to documents and evidentiary materials submitted in support of summary judgment. Republic of the Philippines, 949 F.2d at 660-61. The disposition of such a motion does not affect the presumption that applies to such submissions. Id. at 660. This is because the need for public scrutiny is at its zenith when the motion is dispositive and is of a comparable level when the motion is denied because the ruling tends to shape the scope and substance of the litigation as the parties proceed to trial. Id.; accord Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir.2003) (the strong presumption in favor of public access applies with particular force to judicial records relating to summary judgment because those proceedings adjudicate the substantive rights of parties and often serve as a substitute for trial); Carnegie Mellon University v. Marvell Technology Group, Ltd., 2013 WL 1336204, *10-11 (W.D.Pa. March 29, 2013) (documents filed with the court and incorporated or integrated into the court’s adjudicatory proceedings are subject to the heightened standards mandated by the common law presumption of public access).

The same panoply of rights also are protected by the First Amendment. Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1066-67 (3d Cir.1984). This protection applies to both civil and criminal proceedings. Id. at 1070 (“A presumption of openness inheres in civil trials as in criminal trials.”). “However, the parameters of the First Amendment right of access to civil proceedings are undefined. There remain significant constitutional questions about what documents are subject to its reach.” In re Cendant, 260 F.3d at 198 n. 13 (citing Littlejohn, 851 F.2d at 680 n. 14); but see Delaware Coalition for Open Government, Inc. v. Strine, 733 F.3d 510, 513-20 (3d Cir.2013) (Sloviter, J.) (outlining with clarity the principles governing application of the First Amendment right of access to state-sponsored arbitration proceedings involving members of the Delaware judiciary).

“Just as the right of access is firmly entrenched, so also is the correlative principle that the right of access, whether grounded on the common law or the First Amendment, is not absolute.” Bank of America, 800 F.2d at 344. “Every court has supervisory power over its own records and files, and access [appropriately] has been denied where court files might have become a vehicle for improper purposes.” Littlejohn, 851 F.2d at 678 (quoting Nixon, 435 U.S. at 598, 98 S.Ct. 1306). “The common law thus merely establishes a presumption of public access to court proceedings and court records.” Id. (quoting Nixon, 435 U.S. at 602, 98 S.Ct. 1306).

“[T]he strong common law presumption of access must be balanced against the factors militating against access.” Id. “The party seeking to seal any part of a judicial record bears the heavy burden of showing that ‘the material is the kind of information that courts will protect’ and that ‘disclosure will work a clearly defined and serious injury to the party seeking closure.’ ” Miller, 16 F.3d at 551 (citing Publicker Industries, 733 F.2d at 1071); accord Leucadia, 998 F.2d at 165 (“The burden is on the party who seeks to overcome the presumption of access to show that the interest in secrecy outweighs the presumption.”) (citing Bank of America, 800 F.2d at 344). Such an injury must be shown with specificity. Publicker Industries, 733 F.2d at 1071. “Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient.” In re Cendant Corp., 260 F.3d at 194.

“Documents containing trade secrets or other confidential business information may be protected from disclosure.” Leucadia, 998 F.2d at 166 (citing Nixon, 435 U.S. at 598, 98 S.Ct. 1306) (“courts have refused to permit their files to serve as ... sources of business information that might harm a litigant’s competitive standing.”). In Westinghouse, the Third Circuit recognized that “ ‘[t]he potential effects of the disclosure of business information that might harm the litigant’s competitive standing may in some cases meet the burden [needed to keep] the judicial record under seal.” Westinghouse, 949 F.2d at 663 (quoting district court); accord Leucadia, 998 F.2d at 166 (same) and Littlejohn, 851 F.2d at 685 (same).

The traditional form of confidential commercial information that militates against disclosure is the existence of trade secrets where disclosure would create a sufficient threat of irreparable harm. Publicker Industries, 733 F.2d at 1071 (citing Stamicarbon, N.V. v. American Cyanamid Co., 506 F.2d 532, 539-42 (2d Cir.1974)). Documents do not contain trade secrets merely because a party has deemed them to be confidential. Littlejohn, 851 F.2d at 685. To the contrary, trade secrets generally have independent status under the substantive law. Id. (citing Restatement of Torts § 757 comment b (1939) (definition of a trade secret)); O.D. Anderson, Inc. v. Cricks, 815 A.2d 1063, 1070 (Pa.Super.Ct.2003) (“The courts of this Commonwealth have generally accepted Section 757 of the Restatement of Torts as the basic outline for our trade secrets law.”); 12 Pa.C.S. § 5301.

In contrast, “non-trade secret but confidential business information is not entitled to the same level of protection from disclosure as trade secret information.” Littlejohn, 851 F.2d at 685; Westinghouse, 949 F.2d at 663 (business information alleged to be confidential is not entitled to the weight accorded to trade secrets). An interest in preserving the corporation’s reputation from the commercial effects of embarrassment has not been given significant weight. Littlejohn, 851 F.2d at 685 (citing Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th Cir.1983) (harm to corporate reputation not sufficient to overcome common law presumption of access), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984)). Similarly, disclosures that merely carry a potential to affect adversely sales and/or a potential loss in capital stock value fall short of warranting secrecy. Id. (“The injury that BIC describes is an adverse effect on its disposable lighter sales by competitive use of the information and a potential loss in its capital stock value. However, as we stated in Publicker, ‘[t]he presumption of openness plus the policy interest in protecting unsuspecting people from investing in Publicker in light of its bad business practices are not overcome by the proprietary interest of present stockholders in not losing stock value or the interests of upper-level management in escaping embarrassment.’ ”). This includes information bearing on defects and safety concerns with products. Id. Sheltering such matters does not advance an important public interest or show with specificity how disclosure will work a clearly defined and serious injury to protectable business interests. Id. at 684 (“[Escaping disclosure of problems with [a company’s] products which have injured consumers does not outweigh the presumption of openness plus the public interest in disseminating information about consumer goods that cause personal injury.”).

In ordinary civil litigation, precluding access to the entire judicial record is a very unusual step. Miller, 16 F.3d at 551. Cases upholding such measures by the Third Circuit have been the exception. Id. These include: Capital Cities Media, Inc. v. Chester, 797 F.2d 1164 (3d Cir.1986) (in banc) (internal documents of administrative agencies); First Amendment Coalition v. Judicial Inquiry & Review Bd., 784 F.2d 467 (3d Cir.1986) (in banc) (state judicial discipline proceedings); Publicker, 733 F.2d at 1073 (trade secrets); United States v. Criden, 681 F.2d 919, 921 (3d Cir.1982) (Criden III) (material explicitly determined to be impermissibly injurious to third parties); and Criden I, 648 F.2d at 829 (same); accord Criden I, 648 F.2d at 830 (Weis, J. concurring and dissenting) (“Counseling against access would be such matters as improper use, including publication of scandalous, libelous, pornographic, or trade secret matérial; infringement of fair trial rights of the defendants or third persons; and residual privacy rights.”). The moving party must articulate “compelling countervailing interests to be protected” before such a measure can be employed. Miller, 16 F.3d at 551.

The “compelling countervailing interests” showing also applies where the civil litigation has a component of heightened public interest such as a class action where members of the public are also class members. In re Cendant, 260 F.3d at 194. The potential of the litigation to affect the rights of such members of the public gives rise to. a heightened need for judicial transparency and warrants particular strictness in the test for overriding the right of access. Id. In such circumstances the heightened showing is required for sealing any process or hearing that is important to the administration of the case. Id.

Whether the material or information has been produced pursuant to a confidentiality order governing discovery is another factor that must be taken into account. Pansy, 23 F.3d at 790. The entry of a confidentiality order governing documents and information produced during discovery does not convert such materials into judicial records. Id. at 782 (“Simply because a court has entered a confidentiality order over documents does not automatically convert those documents into ‘judicial records’ accessible under the right of access doctrine. For example, when a court enters an order of protection .over documents exchanged during discovery, and these documents have not been filed with the court, such documents are not, by reason of the protective ordqr alone, deemed judicial records to which the right of access attaches.”) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30-37, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984); Leucadia, 998 F.2d at 163 & n. 9; and Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1119-20 (3d Cir.1986), cert. denied, 484 U.S. 976, 108 S.Ct. 487, 98 L.Ed.2d 485 (1987)).

But as previously alluded to, a protective order entered under Federal Rule of Civil Procedure 26(c) does not assure that information initially designated as confidential and thereafter filed under seal will continue to remain secret. Leucadia, 998 F.2d at 166. The advisory committee notes long ago cautioned that “courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their claim to privacy against the need for disclosure.” Id. (citing Fed.R.Civ.P. 26(c) advisory committee’s note to 1970 amendment). Upon challenge, filings made pursuant to a protective order are to be reviewed on a “document-by-document” basis to assure that the party seeking to maintain secrecy can make the “‘particularized showing of the need for continued secrecy’ if the documents are to remain under seal.” Id. (citing Bank of America, 800 F.2d at 346 (Settlement agreement filed under seal ordered accessible because the parties were “no longer entitled to invoke the confidentiality ordinarily accorded settlement agreements.”)) and In re “Agent Orange” Prod. Liab. Litig., 821 F.2d 139, 148 (2d Cir.1987) (Where parties stipulated to umbrella protective order, district court acted within its discretion by vacating order and permitting access by intervenor to filed discovery materials “subject to a showing, on an individualized basis, of good cause for continued protection.”). Any order of “continued sealing must be based on ‘current evidence to show how public dissemination of the pertinent materials [will continue to] cause the competitive harm [claimed].” Id. (quoting Westinghouse, 949 F.2d at 663); accord Jackson v. Delaware River and Bay Authority, 224 F.Supp.2d 834 (D.N.J.2002) (parties’ expectations warranted treating the record as if a confidentiality order had been entered and finding that the reasons initially advanced for confidentiality “no longer provided] support for restricting access to the judicial record.”).

The difference in the treatment of material designated as confidential under a protective order and material submitted as a judicial record flows in part from the showings needed to maintain secrecy in these respective realms. In contrast to the standards applicable to maintaining judicial records under seal, a party seeking an order of protection over discovery material pursuant to Rule 26 must demonstrate that “good cause”- exists for that protection. Fed.R.Civ.P. 26(c); Smith v. BIC Corp., 869 F.2d 194, 199 (3d Cir.1989). The burden of establishing good cause is on the party seeking the protective order. Cipollone, 785 F.2d at 1121.

Good cause is “established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity.” Publicker Industries, 733 F.2d at 1071. “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning” will not suffice. Cipollone, 785 F.2d at 1121; Pansy, 23 F.3d at 786. Factors that should be considered in the balancing test used to determine whether to enter a confidentiality order include whether the parties have an interest in privacy, whether there is a threat of particularly serious embarrassment to the party, whether the information is important to public health and safety, whether sharing of information among litigants will promote fairness and efficiency, whether the party benefiting from the confidentiality order is a public entity or official and whether the case involves issues important to public. Pansy, 23 F.3d at 787-788.

Where the parties have entered into an umbrella protective order that permits either party in the first instance to designate materials exchanged in discovery as confidential, the court may proceed by finding good cause for the various categories of information likely to be within the exchange of raw information. Leucadia, 998 F.2d at 166. A familiarity with those categories and a general understanding of what is anticipated can supply the foundation for a finding of good cause under Rule 26. Id. But as noted above, the filing of documents in support of adjudicatory action stands on different footing. Closer scrutiny is required in order “to protect the legitimate public interest in filed materials from overly broad and unjustifiable protective orders agreed to by the parties for their self-interests.” Id. (citing United States v. Corbitt, 879 F.2d at 228; accord Pansy, 23 F.3d at 790 n. 26 (noting that while “blanket protective orders may be useful in expediting the flow of pretrial discovery materials, they are by nature overinclusive and are, therefore, peculiarly subject to later modification”) (internal quotation marks and citation omitted)).

Whether the parties have been given the expectation that their submission(s) will be treated as confidential also is a factor that must be taken into account. LEAP Systems Inc. v. MoneyTrax, Inc., 638 F.3d 216, 222 (3d Cir.2011). A party’s reliance on an order sealing a judicial document cannot be lightly brushed aside where the order has induced that party to settle a case or comply with a discovery request. Id. (citing Pansy, 23 F.3d at 790).

With the above principles in mind, we turn to the parties’ specific requests to file materials under seal in support of their respective motions for summary judgment. Plaintiff moves to submit five different categories of information and defendant moves to submit a separate category, all of which they expect will be taken into account in making dispositive rulings in their dispute. Such filings are judicial records under the controlling precedent.

Meeting the good cause standard of Rule 26(c) cannot in itself provide the showing needed to seal the submission of judicial records to be utilized in a formal adjudication of central issues in a lawsuit. Carnegie Mellon University, 2013 WL 1336204 at *4; Littlejohn, 851 F.2d at 678, 684; accord Poliquin v. Garden Way, Inc., 989 F.2d 527, 533 (1st Cir.1993) (“the ordinary showing of good cause which is adequate to protect discovery material from disclosure cannot alone justify protecting such material after it has been introduced at trial. This dividing line may in some measure be an arbitrary one, but it accords with long-settled practice in this country separating the presumptively private phase of litigation from the presumptively public.”) (citing Cowley v. Pulsifer, 137 Mass. 392 (1884) (Holmes, J.)). A higher standard and a heavier burden comes into play once the materials are submitted for an adjudication on the merits. Carnegie Mellon University, 2013 WL 1336204 at *4. At the very least, at this juncture “the party seeking the closure of a hearing or the sealing of part of the judicial record ‘bears the burden of showing that the material is the kind of information that courts will protect’ and that ‘disclosure will work a clearly defined and serious injury to the party seeking closure.’ ” In re Cendant, 260 F.3d at 194 (quoting Miller, 16 F.3d at 551).

Further, this case raises numerous issues of public importance and has the potential to affect the rights of numerous carriers, insureds and claimants that/who are not directly before the court. Several aspects of the parties’ dispute support this assessment.

First, the parties’ dispute arises under an occurrence-based insurance policy that utilizes to a significant degree what typically is referred to as standard form language and/or provisions. See Amended Complaint at ¶¶ 11-19. For example, the policy provides:

“COVERAGE”

• [Defendant] will pay on behalf of [plaintiff] ultimate net loss in excess of the total applicable limit ... of underlying insurance or the amount of the self-insured retention when no underlying insurance applies, because of bodily injury ... to which this insurance applies, caused by an occurrence.

• The term “bodily injury” is defined in the Hartford policy as follows: “bodily injury” means bodily injury, sickness or disease sustained by any person which occurs during the policy period

• The'term “ultimate net loss” is defined in the Hartford policy as follows: “ultimate net loss” means all sums which [plaintiff] and his or her insurers shall become legally obligated to pay as damages, whether by final adjudication or settlement with [Hartfordj’s written consent, after making proper deduction for all recoveries and salvages eollectible[.]

• The term “damages” is defined in the Hartford policy as follows: “damages” do not include fines or penalties or damages for which insurance is prohibited by the law applicable to the construction of this policy. Subject to the foregoing, “damages” include damages for any of the following which result at any time from bodily injury to which this policy applies: death, mental anguish, shock, disability or care and loss of services or consortium[.]

Amended Complaint at ¶¶ 14-17. Thus, rulings on the parties’ basic duties and obligations under the policy (by this court and potentially the United States Court of Appeals for the Third Circuit) will in all likelihood have precedential influence well beyond the resolution of this case.

Second, the parties’ dispute arises in an area where the contractual relationship between the parties is regulated significantly by the judiciary. See e.g. 401 Fourth Street, Inc. v. Investors Ins. Group, 583 Pa. 445, 879 A.2d 166, 171-72 (2005) (setting forth the well-established principles that govern the interpretation of an insurance contract and surveying “the fast-emerging consensus of jurisdictions regarding the nature and scope of the policy language” at issue in determining whether the policy provided coverage under the circumstances); accord Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900-07 (3d Cir.1997) (applying well-established principles that govern the interpretation of an insurance contract in determining that pollution exclusion barred coverage but holding that material issues of fact nevertheless existed under the reasonable expectations doctrine even though insured was a sophisticated insured); American and Foreign Ins. Co. v. Jerry’s Sport Center, Inc., 606 Pa. 584, 2 A.3d 526 (2010) (setting forth established principles -governing a carrier’s duty to defend under Pennsylvania law and surveying divergent lines of cases in resolving an insurer’s ability to limit its liability where the ultimate duty to indemnify is uncertain); J.H. France Refractories, 626 A.2d at 507 (surveying “abundant authority” in adopting “multiple-trigger approach” for bodily injury claims based on exposure to asbestos). In other words, whether standard insurance provisions provide a duty to defend and/or a duty to indemnify for personal injury and wrongful death claims under any particular circumstances involve determinations that are informed by the public policy of the Commonwealth of Pennsylvania. That public policy often is derived from the multi-jurisdictional precedent on CGL policy insurance coverage.

Third, the parties dispute whether plaintiff has exhausted the underlying insurance, whether the. availability of “other insurance” precludes coverage under the umbrella policy, the degree to which plaintiff had knowledge regarding thé dangers of the substances that caused injury to the underlying claimants and the ability of plaintiffs products to protect against those dangers. See e.g. Report and Recommendation of Special Discovery Master re North River Company’s Motion to Compel (Doc. 207) at 2; Report and Reconimendation of Special Discovery Master Granting North River’s Motion for Reconsideration (Doc. 488) at 3-4 (Noting that “North River contends that the requested information is relevant to determining the applicability of North River’s policies because North River’s policies do not provide coverage if other insurance covers the same claim and/or [general] expenses” and granting defendant’s motion to compel because its “disputed interrogatories and document request are quite relevant at this stage of the proceedings.”). The issues raised by defendant also have implicated plaintiffs claims-handling and settlement practices. Rulings and/or determinations in these areas have the potential to impact concretely the legal rights of third parties.

Fourth, the parties’ advance differing theories about the appropriate trigger of coverage. This disputed issue was raised repeatedly during discovery and at this juncture it “is a matter for determination at summary judgment or other stage of the -proceedings.” Report and Recommendation of Special Discovery Master Granting North River’s Motion for Reconsideration (Doc. 438) at 4. Rulings and/or determinations in this area have the potential to impact concretely the legal rights of third parties.

Fifth, plaintiff has at times utilized the practice of assigning the right to collect a portion of settlement proceeds directly from one of its umbrella or excess carriers. See Defendant’s Response in Opposition (Doc. No. 671) at 15 (Outlining settlement between plaintiff and injured parties in action wherein plaintiff settled the case and paid part of the proceeds to those parties and assigned to them the right under another of defendant’s umbrella policies covering plaintiff “to collect directly from North River the remaining amount of the settlement.”). The court’s resolution of the parties’ dispute will have the potential to affect the rights of all other claimants who have entered to similarly structured settlement agreements where those settlement agreements have not been definitively resolved. See e.g. id. at 17 (“the [claimants] stand in the shoes of [plaintiff]”).

Sixth, plaintiff has challenged various aspects of defendant’s claims-handling, including the formulation of its position on the availability of coverage under the policy, and accused it of orchestrating a scheme to “squeeze” plaintiff into accepting less than it is entitled to in violation of Pennsylvania’s bad faith insurance practices statute. Whether defendant engaged in an inappropriate course of claims-handling and/or made decisions regarding the availability of coverage that may subject it to liability under the statute are governed by the law as it has evolved. See e.g. Polselli v. Nationwide Mutual Ins. Co., 23 F.3d 747, 751-52 (3d Cir.1994) (ascertaining applicable standard of proof, nature of prohibited conduct, and required state-of-mind from existing precedent); Klinger v. State Farm Mutual Automobile Insurance Co., 115 F.3d 230, 233 (3d Cir.1997) (Although the term “bad faith” on the part of an insurer is construed as encompassing “any frivolous or unfounded refusal to pay proceeds of a policy” and ordinarily imports “a dishonest purpose and means a breach of a known duty (i.e., good faith and fair dealing), through some motive of self-interest or ill-will[,]” the statute does not require a plaintiff to prove that the insurer consciously acted pursuant to such a motive or interest; it is enough if the insurer recklessly disregarded the lack of a reasonable basis in denying benefits.) (quoting Terletsky v. Prudential Property and Casualty Insurance Co., 437 Pa.Super. 108, 649 A.2d 680, 688 (1994)). These assessments are matters of public importance. Rulings and/or determinations in this area have the potential to impact concretely the legal rights of other carriers and/or insureds not before the court.

In short, the parties’ dispute arises under standard form provisions commonly used in the insurance industry. The resolution of the issues to be raised has the potential to impact (1) the duties and obligations of other carriers from which plaintiff has sought or will seek coverage, (2) the availability of insurance coverage for a great number of third-party claimants who have brought personal injury and wrongful death against plaintiff, and (3) other insureds, claimants and carriers that have been or are presented with similar underlying claims. The parties disagree about core concepts under the policy and related law, such as whether proper exhaustion has occurred; whether defendant has rights of contribution from other carriers; the limits of the policy; whether defense costs are in addition to the limits on indemnification; whether plaintiff can avail itself of the procedures in J.H. France Refractories and designate defendant as the carrier to respond to the tendered claims; the appropriate trigger of coverage for asbestos, silica, coal-mine-dust and- similarly related claims; whether defendant properly has fulfilled its claims-handling responsibility; whether defendant’s chosen course of conduct can give rise to liability under Pennsylvania’s bad faith insurance practices statute; whether plaintiff’s claims-handling and settlement practices satisfy the requirements and obligations under the policy and so forth.

It is readily apparent that the parties’ dispute is not a garden-variety personal injury or breach of contract claim and its resolution has the potential to affect the rights and remedies of other carriers, insureds and third-party claimants. In other words, the parties’ dispute involves issues of public importance that have the ability to affect directly and indirectly the rights of others not before the court. Consequently, the test for overriding the right of access must be applied with recognition of these potential consequences.

Plaintiff has identified the following category of documents:

(i) documents discussing or demonstrating how MSA defends, values, or settles the bodily injury lawsuits filed against it in which the plaintiffs allege, inter alia, that MSA’s respiratory protection equipment failed to properly filter out certain irritants, thus contributing to plaintiffs’ alleged respiratory injuries (the “Underlying Claims” or “Underlying Litigation”) and/or reflecting attorney-client communications or the work product of MSA’s defense counsel in the Underlying Litigation;

(ii) documents evidencing or revealing the value of the settlements between MSA and the plaintiffs in the Underlying Litigation;

(iii) documents containing information that has not been the subject of discovery with respect to all of the Underlying Claims;

(iv) documents setting forth certain opinions and testimony of the medical expert witnesses in the instant coverage litigation; and

(v) documents produced by, or deposition testimony taken of, entities other than MSA or North River in the parallel state court litigation (North River Insurance Company v. Mine Safety Appliances Company, et al., Court of Common Pleas of Allegheny County, Pennsylvania, Docket No. G.D. 10-00432 (the “State Court Action”)) which have been designated as “Confidential” subject to the Protective Order issued in the State Court Action, and which designation has not been withdrawn by that entity-

Plaintiffs Brief in Support (Doc. No. 653) at 4-5. Plaintiff notes that the documents and testimony sought to be filed are subject to protective orders in this and the related state court action. They also contain information from the underlying litigation that is subject to the attorney-client privilege and/or the attorney work product doctrine, which privileges have been preserved during discovery in this litigation by, entry of the following protective order:

It is further ORDERED that any disclosure made in the course of the instant litigation by (i) MSA; (ii) any designated representative of MSA; or (iii) counsel defending MSA in any of the Underlying Claims, including but not limited to Karen K. Maston, Esquire, of information or documents containing information subject to the attorney-client privilege and/or the attorney work product doctrine, which relate to the Underlying Claims or to the litigation of the Underlying Claims, shall not result in a waiver of such privilege or protection by MSA. This Order shall apply to any such disclosures previously made in the course of the instant litigation.

Id. at 8-9; Order of July 27, 2011 (Doc. No. 81).

The documents and information referenced in plaintiffs designated categories (i) and (ii) are similar in nature and give rise to consideration of many of the same interests. More specifically, plaintiff identifies the documents within category (i) as consisting of (a) correspondence (including e-mail) between plaintiffs defense counsel in the underlying litigation, plaintiff, and plaintiffs insurers regarding litigation and/or settlement strategy; (b) e-mail exchanges between plaintiffs defense counsel in the underlying litigation and plaintiff regarding litigation and/or . settlement strategy in the underlying litigation; (c) an e-mail exchange between plaintiffs local defense counsel and plaintiffs counsel in the instant litigation regarding local defense counsel’s practices in handling the underlying litigation; (d) a report summarizing a specific underlying case in advance of a mediation; (e) deposition testimony taken in the instant action of plaintiffs director: litigation and risk management regarding defense and settlement strategy in the underlying litigation; (f) an e-mail from plaintiffs insurer to plaintiffs counsel in the instant litigation regarding litigation and settlement strategy with respect to underlying claims; and (g) a summary chart prepared by plaintiffs defense counsel in the underlying litigation reflecting attorney work product concerning the underlying claimants. Plaintiffs Brief at 5-6. Plaintiff identifies the documents within category (ii) as consisting of (a) a chart produced by it in the instant litigation which contains, among other things, the settlement amount for each of the 394 underlying claims for which plaintiff seeks indemnification; (b) correspondence (including e-mail) between plaintiff (or its counsel) and its insurer(s) that includes the value of the settlement of one or more of the underlying claims; (c) loss runs prepared by plaintiffs insurers setting forth, among other things, the value of the settlement of multiple underlying claims and/or the percentage of such settlement paid by the insurer; and (d) correspondence between or among, plaintiff, plaintiffs defense counsel, and/or plaintiffs insurers regarding the settlement of underlying claims and including information regarding the allocated payment obligations of the insurers to those settlements. Id. at 6-7.

Plaintiff argues that public revelation of this information will result in the disclosure of its “playbook” for defending, trying and settling the underlying claims which in turn will result in severe economic harm by inhibiting its ability to resolve pending and future underlying claims through litigation and settlement. It will result in substantial harm due in part to the detrimental effect disclosure will have on plaintiffs, ability to defend and settle the additional 9,100 underlying claims it is facing across the nation “relating to the same and similar products.” Plaintiff’s Brief at 11. From its perspective public dissemination of such information could be taken out of context and/or used strategically to plaintiffs significant sconomic detriment. It essentially would place its own strategic insights into the hands of its adversaries and provide them with information that they would not have the right to receive, thereby giving them an unfair advantage in the underlying litigation. Plaintiff further explains that disclosures of this nature would disseminate information plaintiff conveyed to its defense counsel in reliance on the attorney-client privilege; and disclosure of information reflecting its or its insurers’ settlement strategy would result in the dissemination of information protected by attorney work product.

Plaintiffs invocation of the attorney client and work product privileges as support for use of this court’s authority to seal must be evaluated in accordance with the context in which it arises. The record fails to contain any basis that would permit disclosure of the referenced documents and information to- defendant in a manner consistent with maintaining the privileges. In other words, in the absence of the protective order of July 27, 2011, plaintiff would have been faced with the difficult choice of either (a) invoking the privileges to preclude disclosure of the documents and information to defendant or (b) waive them due to the need or strategic decision to use the information affirmatively to (1) establish its claims or (2) counter positions anticipated from defendant. A review of the basic tenants of the privileges demonstrates the accuracy of this assessment.

The work-product doctrine is codified in Federal Rule of Civil Procedure 26(b), which provides that “a party may not discover documents and tangible -things that are prepared in anticipation of litigation or for trial” unless otherwise dis-coverablé or the party shows substantial need for the material. Fed. R. Civ. Proc. 26(b)(3). In the seminal case of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the Supreme Court first recognized the doctrine pursuant to the principle that permitting attorneys to prepare their cases without fear that their work product would be used against their clients advances the adversarial system. Id. at 510-11, 67 S.Ct. 385. In United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), the Supreme Court furthér opined that the doctrine “shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.” Included within this category are trial preparation documents that reflect the fruits of the attorney’s endeavors, any compendium of evidence prepared by the attorney and any of the attorney’s mental impressions, opinions or theories. Id. at 236-39, 95 S.Ct. 2160. Also protected are those materials prepared by an attorney’s agent. Id. at 238-39, 95 S.Ct. 2160.

The party seeking the protection has the burden of proving the doctrine applies. Conoco, Inc. v. U.S. Dep’t of Justice, 687 F.2d 724, 730 (3d Cir.1982). Once that burden has been met, protected work product is “afforded near absolute protection from discovery.” In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir.2003). A limited exception exists where the party-seeking disclosure can demonstrate a substantial need for the material and the inability without undue hardship to obtain the substantial equivalent of it by other means. Fed.R.Civ.P. 26(b)(3).

Disclosure of work product to a third party does not necessarily negate the ability to claim the evidentiary privilege that attaches to work product. Under federal law, a party may continue to assert the protections of the work-product doctrine only when the disclosure to a third party furthers the doctrine’s underlying-goal. Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1429 (3d Cir.1991).

Plaintiffs disclosure of privileged work product with a carrier that has denied all tendered claims and has not sought to assist plaintiff in any manner in defending against the tendered or other underlying claims is not an action designed to further the work-product doctrine’s underlying goals. It is the equivalent' of releasing such information to an adversary in order to resolve a legal dispute, which is inimical to protecting and preserving the work product in order to maintain secrecy over the information, strategies and insight it provides. Compare Westinghouse Elec. Corp., 951 F.2d at 1429 (Declining to endorse a selective waiver approach and holding that the disclosure of work product to government agencies that were potential adversaries in order to convince them to take no action or a more lenient course of action waived the privilege “as against all other adversaries.”); accord In re Chrysler Motors Corp. Overnight Evaluation Program Litigation, 860 F.2d 844, 846 (1st Cir.1988) (“Disclosure to an adversary waives the work product protection as to items actually disclosed, even where disclosure occurs in settlement.”) (quoting Grumman Aerospace Corp. v. Titanium Metals Corp. of America, 91 F.R.D. 84, 90 (E.D.N.Y.1981) and citing Chubb Integrated Systems Ltd. v. National Bank, 103 F.R.D. 52, 67 (D.D.C.1984)); United States v. Massachusetts Institute of Technology, 129 F.3d 681, 687 (1st Cir.1997) (disclosure to a potential adversary in an effort to defuse a potential controversy constitutes a waiver of the work product privilege); Jones v. Nationwide Mut. Fire Ins. Co., 2010 WL 181753, *2 (M.D.Pa. Jan. 12, 2010) (same). Consequently, in the .absence of the protective order a waiver of the work product privilege has occurred.

A federal court sitting in diversity must look to state law for the applicable legal principles on issues of privilege. See Fed.R.Evid. 501; United Coal Co. v. Powell Constr. Co., 839 F.2d 958, 965 (3d Cir.1988). The Pennsylvania rule on attorney-client privilege has been codified since 1887. Nationwide Mutual Ins. Co. v. Fleming, 605 Pa. 468, 992 A.2d 65, 68 (2010) (Justice Eakin) (affirming Superior Court by equally divided Court); accord Upjohn v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (The attorney-client privilege is “one of the oldest of the privileges for confidential communications known-to the common law.”). The statute in its current form provides;

In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, Unless in either case this privilege is waived upon the trial by the cli