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Preview: LexisNexis® Mealey's™ Discovery Legal News

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Ruling Over Discovery Scope In DACA Suit Delayed Pending Negotiations
SAN FRANCISCO - Noting a request for additional negotiation time by a group of plaintiffs opposing rescission of the Deferred Action for Childhood Arrivals (DACA) program, a California federal judge on Jan. 22 allowed the plaintiffs and the U.S. government to take several days to try to agree on potential narrowing of the scope of a discovery order requiring the government to complete the administrative record with documents it asserts are privileged (The Regents of the University of California, et al. v. U.S. Department of Homeland Security, et al., No. 3:17-cv-05211, N.D. Calif.).



7th Circuit Affirms Discovery Ruling In Bone Cement Trade Secret Row
CHICAGO - A German bone cement manufacturer failed to timely appeal two rulings denying its motions to modify protective orders governing discovery and use of trade secret documents, a Seventh Circuit U.S. Court of Appeals panel ruled Feb. 1, also affirming denial of a third such motion and finding that a trial court used the proper standard in concluding that no good cause for modification exists (Heraeus Kulzer GmbH v. Biomet Inc., et al., No. 17-1674, 7th Cir, 2018 U.S. App. LEXIS 2588).



Magistrate Judge Denies Protection On Reinsurance Participation Agreement
SACRAMENTO, Calif. - In two putative class actions, a California federal magistrate judge ruled Jan. 12 that insurers are not entitled to a protective order regarding submission of a reinsurance participation agreement (RPA) (Shasta Linen Supply Inc. v. Applied Underwriters Inc., et al., Nos. 16-00158 & 16-01211, E.D. Calif., 2018 U.S. Dist. LEXIS 6079).



Agreement's No-Discovery Rule Found Not Unconscionable By Illinois Appeal Panel
CHICAGO - An appellant failed to establish authority or facts to support a challenge to an arbitration provision in an agreement with its former counsel, which contained a no-discovery rule, an Illinois appellate panel majority ruled Feb. 1, affirming a trial court's judgment against the former client and finding that the rule was not unconscionable (Tecnomatic S.p.A. v. Bryan Cave LLP, No. 1-16-1908, Ill. App., 1st Dist., 4th Div., 2018 Ill. App. Unpub. LEXIS 149).



Microsoft To Supreme Court: SCA Does Not Permit Seizure Of Foreign-Stored Emails
WASHINGTON, D.C. - In a Jan. 11 respondent brief, Microsoft Corp. asks the U.S. Supreme Court to affirm the Second Circuit U.S. Court of Appeals' finding that the Stored Communications Act (SCA) does not permit the government to seize, via warrant, emails that are stored abroad, arguing that altering of the 30-year old statute's reach to address such modern technological matters should be handled via legislation, not litigation (United States v. Microsoft Corp., No. 17-2, U.S. Sup.).



Apple, Qualcomm Debate $25,000-A-Day Discovery Sanction In FTC Antitrust Suit
SAN JOSE, Calif. - Qualcomm Inc. in a Jan.. 26 brief asks a California federal judge to affirm a $25,000-a-day discovery sanction that Apple Inc. called "unduly harsh" in a motion for relief, with Qualcomm arguing that the sanction amount is appropriate in light of Apple's pattern of discovery noncompliance in the antitrust lawsuit brought by the Federal Trade Commission (Federal Trade Commission, et al. v. Qualcomm Inc., et al., No. 17-cv-00220, N.D. Calif.).



Judge Grants PETA's Request For Sanctions For Untimely Discovery
TAMPA, Fla.- After a zoo and its owners failed to submit timely discovery responses in relation to allegations that they violated the Endangered Species Act (ESA), a Florida federal judge on Jan. 19 partially granted a motion filed by the People for Ethical Treatment of Animals Inc. (PETA) for sanctions (People for the Ethical Treatment of Animals v. Dad City's Wild Things, No. 16-2899, M.D. Fla., 2018 U.S. Dist. LEXIS 8761).



Judge Refuses To Order Sanctions, Compels Discovery Of Post-Imaging ESI
SAN DIEGO - A California federal judge on Jan. 18 ordered that a former employee of an energy products supplier provide supplemental discovery in relation to electronically stored information (ESI) but denied requests for sanctions filed by both parties for attorney fees (SolarCity Corp. v. Daniel Doria, No. 16-3085, S.D. Calif., 2018 U.S. Dist. LEXIS 8286).



D.C. Federal Judge: USPTO Satisfied Freedom Of Information Act Request
WASHINGTON, D.C. - A Freedom of Information Act (FOIA) request for documents relating to the U.S. Patent and Trademark Office (USPTO)'s Sensitive Application Warning System (SAWS) program was adequately fulfilled by the USPTO, according to a Jan. 31 ruling by a District of Columbia federal judge (R. Danny Huntington v. U.S. Department of Commerce, No. 15-2249, D. D.C., 2018 U.S. Dist. LEXIS 15430).



FOIA Suit Over DOD Subcontractor Plan To Proceed To Bench Trial
SAN FRANCISCO - In a Jan. 31 joint letter brief, the U.S. Department of Defense (DOD) and a small business advocacy group indicated their inability to agree to resolving the remaining issues in a Freedom of Information Act (FOIA) dispute on the existing court record, opting instead for a bench trial, which a California federal judge had offered in the alternative (American Small Business League v. U.S. Department of Defense, et al., No. 3:14-cv-02166, N.D. Calif.).



Joint-Defense Privilege Bars Disclosure In Computer Fraud Suit, Magistrate Rules
PORTLAND, Ore. - Because a Washington state tech firm and a former employee entered into a joint litigation and confidentiality agreement prior to an internal interview about claimed computer fraud against the employee's previous employer, an Oregon federal magistrate judge on Dec. 21 found that the tech firm was barred from proffering the interview to support its defense under the joint-defense privilege (Columbia Sportswear Co. v. 3MD Inc., et al., No. 3:17-cv-00342, D. Ore., 2017 U.S. Dist. LEXIS 210777).



Partial Disclosure Of Papa John's Consultant's Data Ordered In Drivers' Wage Suit
NEW YORK - Papa John's must turn over documents, except those protected by the attorney-client privilege, from a consultant hired, in part, to analyze alternative approaches to reimbursement of delivery driver vehicle expenses in a class complaint brought by drivers seeking compensation for under-reimbursed deliveries, a New York federal judge ordered Jan. 24 (William Durling, et al. v. Papa John's International, Inc., No. 16-3592, S.D. N.Y., 2018 U.S. Dist. LEXIS 11584).



Emails Shared With Contractor Are Privileged, Magistrate Judge Rules
BOSTON - Emails shared with a contractor who discovered construction defects in a couple's home are protected from disclosure by the work product doctrine, a federal magistrate judge in Massachusetts ruled Jan. 26, holding that the documents contained information about ongoing litigation and litigation strategy (Gregg Wade, et al. v. Touchdown Realty Group LLC, et al., No. 17-10400-PBS, D. Mass., 2018 U.S. Dist. LEXIS 13069).



Protective Order, Compel Motions Partly Granted In Accident Coverage Dispute
OKLAHOMA CITY - In a Feb. 2 discovery order, an Oklahoma federal judge partly granted an injured motorist's motion to compel certain claims and training materials from her employer's insurer, deeming some irrelevant to her underinsured motorist (UIM) claim and finding some to be likely protected by attorney-client privilege (Nickie Amber O'Brien v. Travelers Property Casualty Company of America, et al., No. 5:16-cv-01176, W.D. Okla., 2018 U.S. Dist. LEXIS 17421).



Magistrate Judge Says Discovery Not Warranted In Disability Dispute
INDIANAPOLIS - An Indiana federal magistrate judge on Feb. 2 denied a disability claimant's motion to compel discovery on the basis that the claimant failed to meet her burden of proving that the plan operated under a conflict of interest that would entitle her to conduct discovery (Angel Allen v. The Lilly Extended Disability Plan, et al., No. 16-2224, S.D. Ind., 2018 U.S. Dist. LEXIS 17290).



Federal Judge Partially Grants Motion To Compel In Premises Liability Suit
MONTGOMERY, Ala. - A federal judge in Alabama on Feb. 1 partially granted and denied a plaintiff's motion to compel in a premises liability suit and ruled that a company that owns a clinic where a woman fell out of her wheelchair must turn over information related to the plaintiff but that information related to other doctors not involved in her care will not be turned over in discovery (John W. Washington v. Bio-Medical Application of Alabama Inc., No. 2:17-cv-855, M.D. Ala.).



Magistrate Judge Partially Grants Motion To Compel In Lead Paint Coverage Suit
BALTIMORE - A Maryland federal magistrate judge on Jan. 19 determined that an insurer is required to produce documents related to its knowledge of any lead paint conditions at its insured's buildings prior to the date on which the insured's insurance application and endorsement became effective (CX Reinsurance Company Limited, f/k/a CNA Reinsurance Company Limited v. Devon S. Johnson, No. 15-3132, D. Md., 2018 U.S. Dist. LEXIS 8594).



Residents: Company Should Be Compelled To Produce Expert's Documents In Water Case
GREENVILLE, Miss. - Mississippi residents who sued a company alleging that it is liable for groundwater contamination filed a brief in Mississippi federal court on Jan. 16 seeking to compel the production of documents related to expert testimony (Joe E. Sledge, et al. v. Meritor Inc., et al., No. 16-CV-053, N.D. Miss.).



Motion To Compel Deposition Of Third Party Granted In Starbucks FCRA Class Suit
SEATTLE - A Washington federal judge on Jan. 8 granted a motion to compel deposition of a third party filed by the lead plaintiff in a class suit accusing Starbucks Corp. of violating the Fair Credit Reporting Act (FCRA) by revoking employment offers made to job applicants with negative results on their background checks before providing applicants with a copy of the checks and a description of their rights (Jonathan Santiago Rosario, et al. v. Starbucks Corporation, No. 16-1951, W.D. Wash., 2018 U.S. Dist. LEXIS 3825).



Insurer Opposes Reopening Discovery In Reinsurance Case On Class Certification
LINCOLN, Neb. - In a dispute over whether a reinsurer owes $152,616.35 under a promissory note executed pursuant to a reinsurance participation agreement (RPA), an insurer argues in its Jan. 24 response that it would be unduly delayed and prejudiced if a Nebraska federal court grants the reinsurer's request for leave to amend an answer and to reopen discovery on a limited basis for class certification (Applied Underwriters Inc. v. Top's Personnel Inc., No. 15-90, D. Neb.).



Federal Judge Grants Additional Discovery Extension To Reinsurer
NEW YORK - In a reinsurance coverage dispute for a trucking accident, a New York federal judge on Jan. 3 granted a two-month discovery deadline extension to a reinsurer (Endurance Assurance Corp. v. Florists' Mutual Insurance Co., et al., No. 16-09955, S.D. N.Y.).



Supreme Court Vacates DACA Suit Discovery Order, Remands For Further Proceedings
WASHINGTON, D.C. - In a Dec. 20 per curiam opinion, the U.S. Supreme Court reversed a Ninth Circuit U.S. Court of Appeals ruling that upheld an order compelling the U.S. government to complete the administrative record in a lawsuit over the repeal of the Deferred Action for Childhood Arrivals (DACA) program, with the high court remanding the matter for resolution of whether the case is statutorily barred and whether the discovery order is overly broad (In re United States, et al., No. 17-801, U.S. Sup., 2017 U.S. LEXIS 7504).



Appeals Court Allows PDF Versions Of Spreadsheets In Attorney Fees Dispute
LAKE CHARLES, La. - An oil company that was ordered to remediate a property owned by a school board cannot have access to native format Excel spreadsheets the school board submitted in support of its request for attorney fees, a Louisiana appeals panel ruled Dec. 20, holding that while it is burdensome for the company to convert the files for searching, it is not clear how it would use the metadata to defend against the school board's request (State of Louisiana, et al. v. Louisiana Gas & Exploration Co., et al., No. 17-755, La. App., 3rd Cir., 2017 La. App. LEXIS 2381).



Panel: Law Firm's Possession Of Privileged Memo Did Not Merit Disqualification
LOS ANGELES - Although a defendant's law firm did not comply with its ethical duty to notify the plaintiff upon its receipt of privileged materials, a California appeals panel on Jan. 4 found that a trial court referee did not err in declining to disqualify the firm because the plaintiff was not greatly damaged by the material's disclosure (1100 Wilshire Property Owners Association v. 1100 Wilshire Commercial LLC, No. B281127, Calif. App., 2nd Dist., 2018 Cal. App. Unpub. LEXIS 100).



D.C. Circuit Reverses On Adequacy Of FBI's Search In Response To AP's FOIA Request
WASHINGTON, D.C. - Concluding "that material factual questions remain" as to whether the Federal Bureau of Investigation conducted an adequate search for records responsive to a Freedom of Information Act (FOIA) by the Associated Press (AP) related to the bureau's use of bogus news headlines to track down criminals, a District of Columbia Circuit U.S. Court of Appeals panel on Dec. 15 reversed a trial court's judgment in favor of the FBI and the U.S. Department of Justice (DOJ) (The Reporters Committee for Freedom of the Press, et al. v. Federal Bureau of Investigation, et al., No. 17-5042, D.C. Cir., 2017 U.S. App. LEXIS 25333).



Agency's Records Shielded By Deliberative Process Privilege, Panel Rules
SACRAMENTO, Calif. - A state labor agency's records related to the drafting of legislation, including the identities of individuals consulted during drafting, are protected from disclosure under the California Public Records Act (PRA), a California appeals panel ruled Jan. 8, deeming such information exempted under the deliberative process privilege and the work product doctrine (Labor and Workplace Development Agency v. Fowler Packing Company Inc., et al., No. C083180, Calif. App., 3rd Dist., 2018 Cal. App. LEXIS 15).



Judge Gives Group Limited Access To EPA Documents About PCB Contamination
WASHINGTON, D.C. - A nonprofit group on Dec. 11 was given full access to four U.S. Environmental Protection Agency documents and limited information in two agency documents regarding suspected polychlorinated biphenyl (PCB) contamination at the Santa Monica Malibu Unified School District (SMMUSD) by a federal judge in the District of Columbia who found that the records did not contain information that was subject to the deliberative process privilege (Public Employees for Environmental Responsibility v. U.S. Environmental Protection Agency, No. 14-2056, D. D.C., 2017 U.S. Dist. LEXIS 203068).



DOD Seeks Dismissal Of Remanded FOIA Suit Over Subcontractor Plan
SAN FRANCISCO - In a Jan. 4 brief supporting its summary judgment motion, the U.S. Department of Defense (DOD) tells a California federal court that the remaining redacted portions of a subcontracting plan at the heart of a Freedom of Information Act (FOIA) dispute are exempt from disclosure under the statute (American Small Business League v. U.S. Department of Defense, et al., No. 3:14-cv-02166, N.D. Calif.).



Government To High Court: SCA Warrant Required Disclosure Of Foreign-Stored Data
WASHINGTON, D.C. - In a Dec. 6 petition for certiorari, the U.S. government argues that a warrant issued under the Stored Communications Act (SCA) obligated Microsoft Corp.to provide a user's email data that it happened to store abroad, asking the U.S. Supreme Court to overturn the Second Circuit U.S. Court of Appeals' finding that the presumption against extraterritoriality barred such foreign application of the statute (United States v. Microsoft Corp., No. 17-2, U.S. Sup.).



6th Circuit Remands Refusal To Unmask Blogger In Copyright Case
CINCINNATI - In what it deemed an issue of first impression, a divided Sixth Circuit U.S. Court of Appeals on Nov. 28 held that a general presumption in favor of unmasking anonymous defendants exists when a judgment has been entered in favor of a plaintiff (Signature Management Team LLC v. John Doe, No. 16-2188, 6th Cir., 2017 U.S. App. LEXIS 23974).



Adult Film Firm May Subpoena ISP For File Sharer's Identity
SAN DIEGO - An adult entertainment firm has sufficiently established a prima facie copyright infringement case against a John Doe online file sharer, a California federal magistrate ruled Dec. 7, granting the plaintiff's motion to conduct expedited discovery on the Doe's internet service provider (ISP) to identify the defendant for litigation purposes (Strike 3 Holdings LLC v. John Doe, No. 3:17-cv-02312, S.D. Calif.).



Judge Affirms Decision To Keep Deposition In Premises Liability Suit In U.S.
OWENSBORO, Ky. - A federal judge in Kentucky on Jan. 3 affirmed a magistrate judge's decision to deny a motorcycle company's motion to have a deposition in a product liability suit in Japan after finding that it would be inconvenient for all attorneys to travel to Japan and less of an inconvenience for a corporate representative to travel to California for a deposition (Derek Schall v. Suzuki Motor of America, Inc., et al., No. 4:14-cv-00074, W.D. Ky., 2018 U.S. Dist. LEXIS 873).



Law Firm: Texas Overstates Case In Urging Unsealing Of Asbestos Deposition
DALLAS - The Texas attorney general overstates the case in favor of unsealing deposition testimony from a law firm's principal and ignores that there is no evidence the record constitutes a court document, appellees told the state's appeals court on Jan. 3 (Christine Cole Biederman v. Beverly Jean Brown, et al., No. 01-07-00263-CV, Texas App., 1st Dist.).



Hearst Found To Have No Duty To Preserve Evidence Between Cases
NEW YORK - A magazine publisher that has faced several class complaints alleging unlawful disclosures of customers' data had no duty to preserve evidence between the termination of the first class complaint and the filing of the second, a New York federal magistrate judge ruled Dec. 18 (Josephine James Edwards v. Hearst Communications, Inc., No. 15-9279, S.D. N.Y., 2017 U.S. Dist. LEXIS 207540).



Judge Enjoins Insureds From Removing Any Property From Storage Unit In Sandy Suit
BROOKLYN, N.Y. - A New York federal judge on Nov. 6 confirmed that an Oct. 23 court-ordered subpoena remains in effect to make a storage space in Brooklyn, N.Y., available to allow the inspection of the contents of several storage units maintained by insureds in a Superstorm Sandy coverage dispute and enjoined the insureds from removing any boxes or property from the storage units absent permission form the court (Robert Toussie v. Allstate Insurance Co., et al., Nos. 14-2705 and 15-5235, E.D. N.Y., 2017 U.S. Dist. LEXIS 183603).



Magistrate Judge Denies Gynecologist's Request For Grand Jury Instructions
BOSTON - A gynecologist accused of wrongfully providing a pharmaceutical drug sales representative access to patients' confidential health information cannot have access to instructions provided to two grand juries, a federal magistrate judge in Massachusetts ruled Jan. 3, holding that the information could not support her claim for vindictive prosecution (United States of America v. Rita Luthra, No. 15-cr-30032, D. Mass., 2018 U.S. Dist. LEXIS 604).



Additional Discovery Not Needed In Disability Suit, Maryland Federal Judge Says
BALTIMORE - A Maryland federal judge on Dec. 13 denied a disability claimant's motion to compel the production of documents related to the doctors who reviewed the claimant's case after determining that the administrative record is sufficient to determine whether the insurer operated under a conflict of interest (Karin Reidy v. The Unum Life Insurance Company of America et al., No. 16-2926, D. Md., 2017 U.S. Dist. LEXIS 204705).



Court: Company Must Produce Evidence It Proffered For Asbestos Plaintiff's Review
SPRINGFIELD, Ill. - A judge properly ordered a boiler company to produce more than 5,000 index cards after the company voluntarily permitted inspection by an asbestos plaintiff, an Illinois appeals court held Dec. 5 (Larry Salvatore Sr., et al. v. Cleaver-Brooks, et al., No. 4-17-0173, Ill. App., 4th Dist.).



English Master Grants Third Party Access To Documents In Settled Asbestos Case
LONDON - Documents submitted in a settled case between two companies offer an unprecedented look into what an asbestos products company knew about the dangers and must be disclosed, an English master said Dec. 5 (Graham Dring v. Cape Distribution Limited, et al., No. HQ12X01829, HQ13X02470, U.K. High).



Missouri Federal Judge Won't Compel Prescription Records In Drug Patent Case
ST. LOUIS - In a Jan. 2 memorandum, a Missouri federal judge quashed a motion to compel a Missouri-based pharmacy provider to comply with a subpoena duces tecum issued by a New Jersey federal judge overseeing patent litigation over the narcolepsy drug Xyrem (Par Pharmaceutical Inc. v. Express Scripts Specialty Distribution Services Inc., No. 17-510, E.D. Mo., 2018 U.S. Dist. LEXIS 197).



Fracking Company's Trade Secret Misappropriation Case Fails, Former Employees Say
DENVER - Two men who formerly worked for a hydraulic fracturing company filed a brief in Colorado federal court on Dec. 8, arguing that the fracking company cannot show good cause for expediting the additional discovery that it seeks in its lawsuit in which the company alleges that the men misappropriated trade secrets (EOG Resources Inc. v. Ryan Birkenfeld, et al., No. 17-2721, D. Colo.).



Halliburton Must Provide Information In Groundwater Case, Plaintiffs Say
OKLAHOMA CITY - Residents who argue that Halliburton Energy Services Inc. (HESI) is liable for contaminating their drinking water supply with perchlorate on Dec. 6 filed a brief in an Oklahoma federal court contending that HESI should be compelled to produce documents and other information (Albin Family Revocable Living Trust, et al. v. Halliburton Energy Services Inc., No. 16-910, W.D. Okla.).



Magistrate Judge Approves Reinsurer's Withdrawal Of Motions To Compel Discovery
SCRANTON, Pa. - In a breach of contract dispute over a reinsurance agreement for a bond program, a Pennsylvania federal magistrate judge on Dec. 1 approved a bond reinsurer's withdrawal of motions to compel discovery and for a protective order (Aegis Security Insurance Co. v. Kingsway Financial Services Inc., No. 16-1555, M.D. Pa.).



Justice Orders Discovery Into Jurisdiction Over Asbestos Brewery Filters Case
NEW YORK - New York lacks jurisdiction over asbestos claims against an out-of-state jewelry-making products company, but further discovery is needed into whether the plaintiff was exposed to filters at breweries in the state, a justice held in a pair of opinions posted Dec. 27 (Richard S. Trumbull, et al. Adience Inc., et al., No. 190084/2016, N.Y. Sup., New York Co., 2017 N.Y. Misc. LEXIS 5069, 2017 N.Y. Misc. LEXIS 5059).



Parties In Uber Trade Secrets Suit Won't Stipulate To Special Master Findings
SAN FRANCISCO - Parties in a trade secrets lawsuit alleging that a former employee of autonomous car development company Waymo LLC stole the company's trade secret information and provided it to his new employer, Uber Technologies Inc., on Dec. 7 refused to agree to stipulate to the findings of a special master tasked with determining whether a letter from a former Uber employee shows that Uber hid evidence so that it could not be used at trial (Waymo LLC v. Uber Technologies Inc., et al., No. 17-0939, N.D. Calif.).



Summary Judgment In Trade Secrets Suit Denied Since Discovery Is Not Completed
SAN DIEGO - Ruling that a solar energy products manufacturer is entitled to completed discovery before a ruling on a summary judgment motion could be considered in a misappropriation of trade secrets lawsuit, a federal judge in California on Dec. 12 denied a former employee's motion without prejudice (SolarCity Corp. v. Daniel Doria, No. 16-3085, S.D. Calif., 2017 U.S. Dist. LEXIS 204464).



Magistrate Judge Extends Discovery In Reinsurance Case Over Promissory Note
LINCOLN, Neb. - A Nebraska federal magistrate judge on Nov. 30 extended the discovery deadline by one month in a dispute over whether a reinsurer owes an insured $152,616.35 under a promissory note executed pursuant to a reinsurance participation agreement (RPA) (Applied Underwriters Inc. v. Top's Personnel Inc., No. 15-90, D. Neb.).



Federal Bankruptcy Judge Denies Bid To Seal Sale Of Insolvent Insurer's Claims
NEW YORK - A federal bankruptcy judge in New York on Dec. 15 denied Rapid-American Corp.'s request to make details of a proposed sale of claims on defunct insurance company, Midland Insurance Co., confidential, saying it had not even tried to give reason for the secrecy (In re: Rapid-American Corp., Chapter 11, No. 13-10687, S.D. Bkcy. N.Y., 2017 Bankr. LEXIS 4266).



Evidence Against Arson Defendant Was Properly Admitted, Appeals Court Says
HARTFORD, Conn. - A Connecticut appeals panel on Dec. 19 found that a trial court judge did not err when admitting the out-of-court statements of the co-conspirator of a woman who was found guilty of setting fire to her home and submitting a fraudulent insurance claim, after finding that the statements did not constitute inadmissible hearsay (State of Connecticut v. Amanda Azevedo, No. AC 38124, Conn. App., Conn. App. LEXIS 497).



Judge: More Discovery Needed To Determine If Association's Defects Suit Is Timely
NEWARK, Del. - A Delaware judge on Dec. 7 deferred ruling on motions for summary judgment filed by two contractors, holding that more discovery is needed to determine if a construction defects lawsuit brought by a condominium owners association is barred by the statute of limitations (Crest Condominium Association, et al. v. Royal Plus Inc, et al., No. S16C-10-024-RFS, Del. Super., Sussex Co., 2017 Del. Super. LEXIS 642).



6th Circuit Denies Rehearing For Ruling On Documents Between Insurer, Reinsurer
CINCINNATI - In an asbestos coverage dispute, the Sixth Circuit U.S. Court of Appeals on Jan. 3 denied a panel rehearing and rehearing en banc on a decision to not conduct an in camera review of an insurer's documents disclosed to third parties other than a reinsurer and a claims adjuster (In re OneBeacon Insurance Co. v. The William Powell Co., No. 17-3852, 6th Cir.).



Judge Orders Insurer To Produce Documents On Reinsurance, Mediation
PITTSBURGH - A Pennsylvania federal judge on Dec. 7 granted and denied in part an insured's request to compel an insurer to produce redacted documents pertaining to mediation in an underlying case, as well as reinsurance information (Golon Inc. v. Selective Insurance Company of the Southeast, et al., No. 17-0819, W.D. Pa., 2017 U.S. Dist. LEXIS 201792).



Defendants In Flint Water Case Say They Are Entitled To A Stay Of Discovery
DETROIT - A group of defendants in the lawsuit brought by residents of Flint, Mich., alleging injuries from exposure to lead-contaminated drinking water on Dec. 15 filed a brief arguing that if the district court grants a stay to other defendants in the case, it should "properly" stay discovery as to all of the defendants to avoid unfair prejudice to the private corporate defendants that would be forced to provide discovery at a time when they cannot obtain critical discovery (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).



Judge Stays Discovery Until Ruling On Motion To Dismiss Reinsurers' RICO Lawsuit
EL PASO, Texas - In a lawsuit alleging a scheme to take control over an auto dealership and to decline selling vehicle-protection products that are reinsured, a Texas federal judge on Dec. 26 stayed all discovery until a ruling on a motion to dismiss (Richard C. Poe II, et al. v. Anthony E. Bock, et al., No. 17-00232, W.D. Texas).



Federal Judge Partly Grants Motion For Protective Order In Wrongful Death Dispute
BALTIMORE - In accordance with the Health Insurance Portability and Accountability Act (HIPAA) and its implanting regulations, a Maryland federal judge on Dec. 19 issued a disclosure order authorizing health care providers to disclose a decedent's protected health information in the presence of plaintiff's counsel in a wrongful death and negligence lawsuit and also issued a qualified protective order authorizing third parties to disclose the decedent's protected health information pursuant to traditional discovery mechanisms (Gwendolyn Lynch v. SSC Glen Burnie Operating Company, LLC, No. 17-1328, D. Md., 2017 U.S. Dist. LEXIS 208948).



Judge Places Asbestos Evidence Under U.S. Military Technology Protection Rules
SEATTLE - Parties to an asbestos suit on Dec. 15 agreed that evidence produced during discovery should fall under various U.S. laws and regimes designed to protect against the release and export of defense and military related technologies (Thomas A. Johnson, et al. v. Air & Liquid Systems Corp., et al., No. 17-834, W.D. Wash.).



Government Seeks Mandamus Of DACA Discovery Order From Supreme Court
WASHINGTON, D.C. - After the Ninth Circuit U.S. Court of Appeals denied its petition for mandamus of a trial court's order requiring an expanded administrative record in a lawsuit seeking to block termination of the Deferred Action for Childhood Arrivals (DACA) program, the U.S. government on Dec. 1 filed a similar petition with the U.S. Supreme Court, seeking to halt the discovery of what it asserts are privileged deliberative documents (In re United States, et al., No. 17-801, U.S. Sup.).



Judge Clarifies Fact, Opinion Work Product In Patent Antitrust Suit
SAN JOSE, Calif. - Responding to discovery disputes by the parties in a lawsuit alleging monopolization and false advertising of patents for specialty medical software, a California federal judge on Nov. 6 clarified a previous order compelling production, differentiating between fact and opinion work product in the context of waiver of privilege (Cave Consulting Group Inc. v. OptumInsight Inc., No. 3:15-cv-03424, N.D. Calif, 2017 U.S. Dist. LEXIS 183672).



Judge Permits Government To Conduct Broad Search Of Email Addresses
MONTGOMERY, Ala. - An Alabama federal judge on Dec. 1 granted the U.S. government's motion to reconsider limitations that were previously imposed on search methods to be used with certain email accounts, with the judge concluding that the specifics of the case require flexibility with the usual particularity requirements for warrants required by the Fourth Amendment to the U.S. Constitution (In re Search of Information Associated with 15 Email Addresses Stored at Premises Owned, Maintained, Controlled or Operated by 1&1 Media, Inc., et al., No. 2:17-cm-03152, M.D. Ala.).



Judge Allows Subpoena Of Insurer's Consultants In Windstorm Coverage Dispute
SEATTLE - Finding insufficient support for an insurer's claim that its consultants were engaged in advance of possible insurance fraud litigation, a Washington federal judge on Dec. 5 denied the insurer's motion to quash subpoenas served on them by the plaintiff in a coverage suit related to extreme weather events (Premier Harvest LLC, et al. v. AXIS Surplus Insurance Co., et al., No. 2:17-cv-00784, W.D. Wash., 2017 U.S. Dist. LEXIS 199910).



Florida High Court Deems Malpractice Suit Interview Provision Unconstitutional
TALLAHASSEE, Fla. - State law amendments in 2013 providing for secret ex parte interviews of a medical malpractice claimant's physicians violate the Florida Constitution's guarantees of privacy and court access, a Florida Supreme Court majority ruled Nov. 9, finding that including the interviews as part of the mandated presuit informal discovery process required claimants to waive their privacy rights to avail themselves of the courts (Emma Gayle Weaver v. Stephen C. Myers, M.D., et al. No. SC15-1538, Fla. Sup., 2017 Fla. LEXIS 2282).



Arkansas Supreme Court: Execution Drug Maker Must Be Identified
LITTLE ROCK, Ark. - A split Arkansas Supreme Court on Nov. 2 agreed with a lower court that state law does not prohibit the identification of manufacturers of an execution drug but said it does require protection of the identities of sellers and suppliers (Arkansas Department of Correction, et al. v. Steven Shults, No. CV-17-788, Ark. Sup., 2017 Ark. LEXIS 266).



BNSF Ordered To Produce Documents, Designee In Amtrak Derailment Suit
KANSAS CITY, Kan. - Railroad track owner BNSF Railway Co. was directed Dec. 1 to provide certain records and corporate designee depositions by a Kansas federal magistrate judge who mostly granted a motion to compel by passengers intervening in a suit over a National Railroad Passenger Corp. (Amtrak) train derailment, with the magistrate deeming most of the requested discovery relevant to negligence claims, while limiting the scope of requests found to be overbroad (National Railroad Passenger Corp., et al. v. Cimarron Crossing Feeders LLC No. 6:16-cv-01094, D. Kan., 2017 U.S. Dist. LEXIS 197572).



Federal Judge Compels Discovery From Plaintiffs In Asbestos-Drilling Mud Case
BATON ROUGE, La. - Plaintiffs alleging asbestos exposure in drilling mud must respond to written discovery seeking information regarding injuries, exposure and work history and seeking the release of related medical records and work histories, a federal judge in Louisiana said Nov. 14 (Manuel Garza v. Phillips 66 Co., et al., No. 13-742, M.D. La.).



New Jersey Panel OKs Discovery Of Employee Files Without In Camera Review
TRENTON, N.J. - In light of an existing protective order, a New Jersey appeals panel on Nov. 22 found no error in a trial court's order compelling production of employee records in a wrongful discharge case without first reviewing them in camera, ruling that the protection of such privacy concerns are determined on a case-by-case basis (Louis Narvaez v. New Jersey Judiciary, Vicinage 4, No. A-3166-16T1, N.J. Super., App. Div., 2017 N.J. Super. Unpub. LEXIS 2920).



Magistrate Orders Hospital To Produce Asbestos Pathology Information For Testing
GREENVILLE, N.C. - A hospital must produce additional lung pathology materials in its possession for testing by an asbestos defendant, a federal magistrate judge in North Carolina held Nov. 3 (Faye Gore v. 3M Co., et al., No. 16-716, E.D. N.C.).



Document Production Ordered In Subrogation Suit Over Fire Caused By Water Heater
WICHITA, Kan. - A Kansas federal magistrate judge on Dec. 1 mostly granted motions to compel by a homeowners insurer and a water heater manufacturer, finding the parties' requested documents to be relevant to the product liability claims, related to a fire-causing water heater, and mostly nonprivileged and discoverable (The Travelers Home and Marine Insurance Co. v. HTP Inc., et al., No. 6:15-cv-01371, D. Kan., 2017 U.S. Dist. LEXIS 198064).



Texas Panel Vacates Discovery Order, Says Documents Not Relevant To Contract Claim
TYLER, Texas - The 12th District Texas Court of Appeals on Nov. 8 determined that a trial court erred in granting an insured's motion to compel because the documents sought by the insured are not relevant to the contract claim and will not be relevant unless and until the extracontractual claims are tried (In re: Allstate Fire & Casualty Insurance Co., No. 12-17-00266, Texas App., 12th Dist., 2017 Tex. App. LEXIS 10428).



Disability Income Insurer Must Produce Documents Pertaining To Claims Decision
COLUMBUS, Ohio - Following an in camera review, an Ohio federal magistrate judge on Nov. 27 granted an insured's motion to compel the production of seven documents after determining that the documents will help to determine whether the insurer acted in bad faith in its handling of the insured's disability income claim (Mukesh R. Shah, M.D. v. Metropolitan Life Insurance Co., et al., No. 16-1124, S.D. Ohio, 2017 U.S. Dist. LEXIS 194347).



Objections To Insurer's Discovery Requests Overruled In Dispute Over Employee Theft
PHILADELPHIA - A Pennsylvania federal magistrate on Nov. 14 granted an insurer's motion to overrule objections to its request for the production of documents in a coverage dispute arising from the alleged theft of an insured's employee stock ownership plan assets by a former employee (Barbie Spear, in her capacity as trustee of the Alliance Holdings, Inc. Employee Stock Ownership Plan and Alliance Holdings, Inc. Employee Stock Ownership Plan, Plaintiffs v. Westfield Insurance Company, No. 15-00582, E.D. Pa., 2017 U.S. Dist. LEXIS 188193).



Discovery Outside Of Administrative Record Is Not Warranted, Judge Says
BALTIMORE - A disability claimant is not permitted to conduct discovery outside of the administrative record because the claimant failed to identify any specific need for extra-record discovery, a Maryland federal judge said Nov. 16 (Amy Silverstone v. Reliance Standard Life Insurance Co., No. 17-0111, D. Md., 2017 U.S. Dist. LEXIS 189528).



Magistrate Judge: Discovery Needed On Whether Company Is 'Dead and Buried'
DAYTON, Ohio - A federal judge in Ohio on Nov. 15 recommended denying a defendant company's motion to dismiss a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) lawsuit on the ground that discovery is necessary to determine if the company is "dead and buried" and thus subject to liability under the statute (Garrett Day, LLC v. International Paper Company, Inc., et al., No. 15-cv-00036, S.D. Ohio, 2017 U.S. Dist. LEXIS 188568).



MDL Judge Will Allow Limited Discovery Into C-Qur Patch Swedish Parent Company
CONCORD, N.H. - The New Hampshire federal judge overseeing the C-Qur mesh multidistrict litigation on Nov. 14 denied without prejudice a motion by the defendants' Swedish parent company to be dismissed for lack of personal jurisdiction and instead allowed plaintiffs to conduct limited discovery on personal jurisdiction (In Re: Atrium Medical Corp. C-Qur Mesh Products Liability Litigation, MDL Docket No. 2753, No. 16-md-2753, D. N.J.).



Expedited Discovery Request Overly Broad, Magistrate Judge Rules
WICHITA, Kan. - A plaintiff in a misappropriation of trade secrets lawsuit against its former employee and direct competitor has failed to show that expedited discovery is warranted in the action under Kansas' reasonableness or good cause test because, among other things, the plaintiff's discovery sought is overly broad, a federal magistrate judge in Kansas ruled Nov. 15 in denying the plaintiff's motion for expedited discovery (HydroChem LLC v. Loren Keating, et al., No. 17-1281, D. Kan., 2017 U.S. Dist. LEXIS 188467).



Discovery In Benzene Case Should Be Reopened, Man Says; More Witnesses Exist
ASHEVILLE, N.C. - A North Carolina man who contends that a company is liable for contaminating his groundwater with benzene on Nov. 27 filed a brief in North Carolina federal court seeking to reopen discovery on grounds that there is evidence that was "in large part" available during discovery in the form of witness testimony the defendants failed to pursue (Kent Stahle v. CTS Corporation, No. 14-48, W.D. N.C.).



Federal Judge Grants Discovery Extension In Fraudulent Transfers Suit
ATLANTA - In a dispute over alleged fraudulent transfers of reinsurance funds, a Georgia federal judge on Nov. 21 granted in part a request to extend discovery for two additional months "only to follow up on existing issues" but said no new discovery is to occur (Canal Insurance Co., et al. v. Golden Isles Reinsurance Company Ltd., et al., No. 15-03331, N.D. Ga.).



Judge Denies Extension On Discovery Of Class Policies In Reinsurance Fraud Scheme
BALTIMORE - A Maryland federal judge on Nov. 29 denied a request to extend the relevant time period for discovery as to 11 class policies experiencing an 2015 cost of insurance (COI) increase in a dispute over an alleged life insurance fraud scheme that shifted debt to reinsurers (Richard Dickman, et al. v. Banner Life Insurance Co., No. 16-192, D. Md.).



Companies: Lead Paint Expert Should Be Excluded Due To Missing Discovery Deadline
MILWAUKEE - Three of the companies being sued by plaintiffs who contend that they are liable for lead-paint poisoning on Nov. 15 moved to exclude one of the plaintiffs' experts, contending that his opinions were submitted past the deadline for expert disclosures and after the close of discovery (Glenn Burton v. American Cyanamid, et al., No. 07-0303, E.D. Wis.).



Judge Extends Deadline On Class Certification Motion To Allow Discovery Completion
PHILADELPHIA - In a dispute over an alleged kickback insurance premium scheme involving insurers, reinsurers and lenders, a Pennsylvania federal judge on Nov. 9 granted a joint stipulation and order to extend deadlines pertaining to a class certification motion to allow homeowners to complete relevant discovery and document production (Nelson White Jr., et al. v. The PNC Financial Services Group Inc., et al., No. 11-7928, E.D. Pa., 2017 U.S. Dist. LEXIS 135743).



Judge Extends Discovery In Fracking Contract Dispute, Approves Inspections
PITTSBURGH - A federal judge in Pennsylvania on Nov. 7 extended the deadline for discovery in a hydraulic fracturing contract dispute following a previous ruling in which the judge denied a motion for protective order and a motion to quash that had been filed by a fracking company that sought to prevent inspection of fracking rigs at issue in the litigation (Orion Drilling Company LLC v. EQT Production Company, No. 16-01516, W.D. Pa.).