The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge
This matter is before the Court on the Motion to Strike Complaint and Exhibits Thereto in Violation of Confidentiality Agreement filed by Wellpoint Health Networks, Inc. and UniCare Illinois Services, Inc. ("Defendants") on August 14, 2006 (Doc. 92). For the reasons set forth below, the motion is GRANTED in part and DENIED in part.
1. In 2003, Greg Cima, et al. ("Plaintiffs") filed a complaint in state court seeking class action certification against Wellpoint Health Networks, Inc. ("Wellpoint").
2. On June 29, 2004, the parties entered into a "Confidentiality Agreement" that covered all documents that Wellpoint provided prior to and during the parties efforts to achieve a settlement. The agreement provided that, at the close of mediation, Plaintiffs were to return all copies of documents, and to destroy all electronic documents, produced by Wellpoint for the mediation.
3. On August 26, 2004, the state court issued a "Protective Order" that covered some of the documents produced pursuant to the Confidentiality Agreement.
4. On May 3, 2005, the state court dismissed the complaint and gave leave to replead.
5. On June 3, 2005, Plaintiff amended the complaint, adding new claims, new plaintiffs, and new defendants. Plaintiffs publicly filed exhibits to the complaint that were subject to the Confidentiality Agreement.
6. On June 28, 2005, Defendants removed the action to the Southern District of Illinois.
7. On August 22, 2005, Plaintiffs indicated in a letter to Defendants that certain documents submitted in the mediation were not "protectible confidential documents under existing Illinois and Seventh Circuit law." Plaintiffs also asserted that Defendants had waived any potential protection of the same documents by failing to seek a protective order after removal of the case to federal court.
8. On September 21, 2005, Defendants filed an action in state court seeking a TRO to enforce the Confidentiality Agreement of 2004.
9. On September 22, 2005, Defendants filed a motion in this court to enforce the state-issued Protective Order and to defer a ruling determining the scope and enforceability of the Confidentiality Agreement until after the state court ruled on the TRO.
10. On September 29, 2005, the state court issued a TRO enforcing the terms of the Confidentiality Agreement, finding that the "Confidentiality Agreement was not superceded by the [state-issued] Protective Order," and ordering Plaintiffs to return or destroy ...