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In The Legal Intelligencer's August 2019 Insurance Law Supplement, Bryan M. Shay and Madison G. Melinek explored the impact of the Third Circuit's decision in In re Avandia Marketing, Sales Practices & Products Liability Litigation on insurance bad faith litigation. The article notes that "the decision clarified that courts must employ a sliding scale of burdens when considering whether a party may maintain certain documents or evidence as confidential and shielded from public access during litigation."

The authors go on to note: 

"In actions brought under Pennsylvania’s insurance bad faith statute, 42 Pa. C.S. Section 8371, confidential and proprietary information of the insurer—such as claims manuals, training and educational materials, and the personnel files of the file-handler—is frequently sought in discovery and offered into evidence at trial as support for the claim that the insurer acted in bad faith. As such, although the Avandia decision did not arise from a claim under Section 8371, the Third Circuit’s decision in that case may nevertheless have a significant impact on how bad faith actions are litigated in the Pennsylvania federal courts."

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