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LexisNexis® Mealey's™ Discovery Legal News

Headline Discovery Legal News from LexisNexis®


Web Host Ordered To Comply With DOJ Warrant For Anti-Trump Site User Info
WASHINGTON, D.C. - In an Aug. 24 blog posting, web-hosting firm DreamHost LLC reported that a District of Columbia judge that day ordered it to comply with a U.S. Department of Justice (DOJ) warrant seeking information connected with users of a website that was used to organize protests against President Donald Trump (In re: the Search of that Is Stored at Premises Owned, Maintained, Controlled,, or Operated by DreamHost, No. 17 CSW 3438, D.C. Super.).

Microsoft Opposes Certiorari In Suit Over Production Of Foreign-Stored Emails
WASHINGTON, D.C. - An appeals court correctly found that the presumption against extraterritorial application of U.S. laws prevented Microsoft Corp. from being compelled under the Stored Communications Act (SCA) to produce foreign-stored emails in response to a U.S. Department of Justice (DOJ) warrant, Microsoft argues in an Aug. 28 brief asking the U.S. Supreme Court to deny the DOJ's petition for certiorari (United States v. Microsoft Corp. [In re: Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp.], No. 17-2, U.S. Sup.).

Armed Forces Panel Affirms Suppression Of Evidence From IPhone
WASHINGTON, D.C. - Because the search of a serviceman's smartphone occurred without counsel present and as part of an interrogation, a military appellate panel majority on Aug. 30 ruled that the search violated his Fifth Amendment rights, despite his voluntary unlocking of the device, meriting suppression of the evidence obtained (United States v. Edward J. Mitchell, No. 17-0153, Armed Forces App., 2017 CAAF LEXIS 856).

U.S. Government Urges Review Of Email Warrant Denial Despite 11th Circuit Ruling
MONTGOMERY, Ala. - In an Aug. 28 filing in Alabama federal court, the U.S. government states that it "persists in its request" from a July 18 motion to review and vacate a magistrate's order denying warrants for the production of emails related to a tax fraud investigation, arguing that a subsequent 11th Circuit U.S. Court of Appeals ruling on the search of email accounts has no bearing on the present case (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.).

Insurer Ordered To Produce Claim Documents, Billing Records In Bad Faith Case
HATTIESBURG, Miss. - A federal magistrate judge in Mississippi on Aug. 4 ordered an insurer to produce documents and its former attorney to produce billing records related to the handling of an uninsured/underinsured motorist's claim, finding that the insurer waived its protections under attorney-client privilege and the work product doctrine (Craig Flanagan, et al. v Nationwide Property and Casualty Insurance Company, No. 2:17-cv-33-KS-MTP, S.D. Miss., Eastern Div., 2017 U.S. Dist. LEXIS 123204).

Magistrate Judge Denies Production Of Privileged Docs In Reinsurance Dispute
UTICA, N.Y. - A New York federal magistrate judge on Aug. 21 denied an insurer's request to compel disclosure of certain documents in its dispute with its reinsurer over an underlying $325 million settlement of asbestos claims because "discovery is long closed" (Utica Mutual Insurance Co. v. Fireman's Fund Insurance Co., No. 09-cv-00853, N.D. N.Y.).

4th Circuit Dismisses Woman's Appeal Over Destructive Testing Of Stucco
RICHMOND, Va. - A Fourth Circuit U.S. Court of Appeals on Aug. 9 dismissed a woman's appeal of a federal judge in South Carolina's ruling denying as moot her motion for a protective order to bar a home builder's destructive testing of stucco, finding that discovery rulings are not immediately appealable (Jacqueline L. Craft v. Del Webb Communities, Inc., et al., No. 17-1682, 4th Cir.).

Nationwide Seeks Protective Order, Dismissal In Remanded Data Breach Suit
COLUMBUS, Ohio - On the heels of a motion seeking dismissal of the sole remaining claim against it in a lawsuit over a 2012 data breach, Nationwide Mutual Insurance Co. on Sept. 7 filed a reply brief in Ohio federal court supporting its request for a protective order governing the discovery of asserted sensitive information related to its computer systems and data protection practices (Mohammad S. Galaria, et al. v. Nationwide Mutual Insurance Co., No. 2:13-cv-00118, S.D. Ohio).

3rd Circuit Affirms Synthes Can't Get Grand Jury Testimony For Bone Cement Cases
PHILADELPHIA - Synthes Inc. cannot get access to secret grand jury testimony to impeach testimony in a civil case that company representatives OK'd the off-label use of Norian bone cement in two deadly spinal reconstruction procedures, the Third Circuit U.S. Court of Appeals said Sept. 8 in an opinion affirming a district court's denial (United States of America v. Norian Corporation, et al., No. 16-2240, 3rd Cir., 2017 U.S. App. LEXIS 17382).

Judge Denies Motion To Compel Nonparty's Medical Records In Negligence Suit
PITTSBURGH - A federal judge in Pennsylvania on Aug. 28 denied a couple's motion to compel the medical records of a high-risk baby who was treated on the same day and at the same facility as their child who died because the parents of the deceased child failed to show how the production of those records would demonstrate whether the defendants met the required standard of care (Carissa Peronis, et al. v. United States of America, et al., No. 2:16-CV-1389, W.D. Pa.).

Reinsurer Seeks Cedent's Communications With Another Reinsurer On Trucking Accident
NEW YORK - In a reinsurance coverage dispute for a trucking accident, a reinsurer argues in a July 27 letter that a New York federal court must compel an insurer to produce communications with another of its reinsurers over the same claim because they are relevant to the reinsurance claim (Endurance Assurance Corp. v. Florists' Mutual Insurance Co., et al., No. 16-09955, S.D. N.Y.).

Judge Finds Complex Inquiry Into Medical Rights Assignment Requires Discovery
TRENTON, N.J. - Because it requires a "Russian-nesting-doll-like" inquiry, further discovery is required into whether a surgical spine center's bills were assignable under an insurance policy's "eligible charges" provision, a federal judge in New Jersey held Aug. 22 while rejecting claims that the provider failed to exhaust administrative remedies and seeks duplicative relief (University Spine Center, et al. v. Horizon Blue Cross Blue Shield of New Jersey, et al., No. 16-9253, D. N.J., 2017 U.S. Dist. LEXIS 134021).

Disability Insurer Cannot Add Medical Records To Trial Exhibit, Federal Judge Says
PHOENIX - An Arizona federal judge on Aug. 29 denied a disability insurer's request to allow additional medical records to be added to a claims file for use as a trial exhibit after determining that the request is untimely and would be prejudicial to the disability claimant (Benjamin McClure v. Country Life Insurance Company, et al., No. 15-2597, D. Ariz., 2017 U.S. Dist. LEXIS 138530).

Insured Must Produce Identity Of Documents Sought By Insurer In Environmental Dispute
INDIANAPOLIS - An Indiana federal judge on Sept. 1 determined that an insured must provide its insurer with the identity of a number of compiled documents sought by the insurer and must produce the final summaries used by the insured's corporate representative during a deposition in an environmental contamination coverage dispute (Eli Lilly and Co., et al. v. Arch Insurance Co., et al., No. 13-1770, S.D. Ind., 2017 U.S. Dist. LEXIS 141732).

Insurer Seeks Clarification On Discovery To Reinsurer In Breach Of Contract Suit
PHILADELPHIA - In a breach of contract suit, an insurer moved for clarification on Aug. 11 with a Pennsylvania federal court to confirm that it is to produce only unredacted versions of documents previously produced with redactions based on proprietary material, reserves and "other reinsurance" information and additional documents reflecting the date when the insurer provided first notice of asbestos claims to other reinsurers of relevant policies (R&Q Reinsurance Co. v. St. Paul Fire & Marine Insurance Co., No. 16-1473, E.D. Pa.).

Subway Defendants Must Provide Agreements In Suit Over Sexual Contact With Minor
PIERRE, S.D. - A South Dakota federal magistrate judge on Aug. 31 ordered a Subway franchisee and other defendants accused of allowing one of the franchise owners to have sexual contact with a minor employee to comply with one of two discovery requests seeking defense agreements between the parties (Kerri Lureen, as guardian ad litem of S.L., a minor v. Christopher John Holl, et al., No. 17-4016, D. S.D., 2017 U.S. Dist. LEXIS 140420).

Connecticut Federal Magistrate Judge: Insurer Cannot Redact Claims-Related Data
NEW HAVEN, Conn. - A Connecticut federal magistrate judge on Aug. 31 ordered an insurer to produce a number of requested documents in an asbestos coverage dispute and said that the insurer is permitted to redact only policyholders' information and is not permitted to redact any claims-related data (ITT Corp. and Goulds Pump Inc. v. Travelers Casualty & Surety Co., No. 12-38, D. Conn., 2017 U.S. Dist. LEXIS 140588).

Judge: Company Must Provide Discovery In Dispute Related To Water Leak Damage
SEATTLE - A federal judge in Washington on Aug. 2 granted an insurer's motion to compel discovery and granted a company's motion to continue the opening date of the trial related to a coverage dispute seeking the recovery of costs paid out in an underlying suit brought by a condominium association over damage that stemmed from a water leak (Eagle West Insurance Company v. Watts Regulator Co., et al., No. 16-781, W.D. Wash.; 2017 U.S. Dist. LEXIS 121673).

Federal Judge Orders Nigerian Petroleum Corp. To Produce Documents
NEW YORK - A New York federal judge on Aug. 7 ordered the Nigerian National Petroleum Corp. (NNPC) to produce certain documents in a case in which a Nigerian entity seeks to confirm a $1,779,000,000 arbitral award (Esso Exploration and Production Nigeria Limited et al v. Nigerian National Petroleum Corporation, No. 1:14-cv-08445, S.D. N.Y.).

Panel Reverses Judgment, Remands For More Discovery In Franchise Contract Case
TRENTON, N.J. - A New Jersey appeals panel on Aug. 11 reversed a summary judgment ruling in favor of the defendants in a breach of contract action, saying the plaintiff established numerous genuinely disputed material facts (Falgun Dharia, et al. v. Omi Riddhi Siddi, LLC, et al., No. A-4445-14T3, N.J. Super., App. Div., 2017 N.J. Super. Unpub. LEXIS 2062).

On Remand, Wikimedia Seeks Discovery In Suit Over NSA Upstream Surveillance
BALTIMORE - In the wake of a Fourth Circuit U.S. Court of Appeals ruling reinstating its constitutional challenge to the National Security Agency's (NSA's) upstream surveillance of international communications, Wikimedia Foundation in a Sept. 1 reply brief tells a Maryland federal court that discovery on the merits of its claims should be the next step in the remanded litigation (Wikimedia Foundation v. National Security Agency, et al., No. 1:15-cv-00662, D. Md.).

Builder: Appeal Of Discovery Ruling Does Not Affect Class Certification Issues
BEAUFORT, S.C. - The builders of homes with allegedly improperly installed stucco told a federal judge in South Carolina on Aug. 23 that a woman's class allegations should be stricken because she has missed the deadline for filing her motion for class certification and that her appeal of a discovery ruling has no impact on class certification issues (Jacqueline L. Craft v. South Carolina Plastering, LLC, et al., No. 15-cv-05080-PMD, D. S.C.).

Asbestos Discovery Master Says Alleged Conflicts Don't Warrant Disqualification
NEWARK, N.J. - The special master appointed to oversee discovery issues in a seven-year-old asbestos lawsuit involving allegations of fraud on the part of a talc defendant and its lawyer said in an Aug. 11 letter that a law firm's representation of an unrelated party does not disqualify him from serving (Kimberlee Williams, et al. v. BASF Catalysts LLC., et al., No. 11-1754, D. N.J.).

Federal Magistrate Judge Requests Briefing On Copyright Defenses
SAN DIEGO - A California federal magistrate judge on Aug. 4 directed Conan O'Brien and other copyright infringement co-defendants to file a proposed amended answer and supplemental brief justifying their request to reopen discovery in the case, based upon representations by plaintiff's counsel that an underlying copyright registration will be canceled or corrected (Robert Alexander Kaseberg v. Conan O'Brien, et al., No. 15-1637, S.D. Calif., 2017 U.S. Dist. LEXIS 123703).

Pennsylvania Agency Deems Mayor's Facebook Posts To Be Public Records
HARRISBURG, Pa. - Because a Pennsylvania borough's mayor's public Facebook page was created and maintained in connection with the municipality's official business, the Pennsylvania Office of Open Records (OOR) on Aug. 16 determined that posts and messages connected with the page are public records and subject to disclosure under the state's Right-to-Know Law (RTKL) (Noel Purdy v. Chambersburg, No. AP 2017-1229, Pa. Ofc. Open Rec.).

5th Circuit Says Dismissal Sanction In ERISA Case Outside Judge's Discretion
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Aug. 10 ruled that a Texas federal judge's dismissal sanction in a case involving a self-funded employee benefits plan falls well outside of the bounds of her broad discretion in adjudicating discovery matters because it is not evident that a medical service provider refused to comply with two discovery orders, much less did so willfully or in bath faith (Oprex Surgery [Baytown], L.P. v. Sonic Automotive Employee Welfare Benefit Plan, No. 16-20734, 5th Cir., 2017 U.S. App. LEXIS 14811).

Bank Opposes Insurer's Discovery Sanctions Bid In Reinsurance Dispute
COLUMBIA, S.C. - A bank argues in an Aug. 7 opposition brief that a South Carolina federal court should not impose an insurer's discovery sanctions in a dispute over the mishandling of reinsurance funds because it has appropriately preserved and collected electronically stored information (Companion Property and Casualty Insurance Co. v. U.S. Bank National Association v. Redwood Reinsurance Spc. Ltd., et al., No. 15-01300, D. S.C., 2017 U.S. Dist. LEXIS 54182).

10th Circuit Panel: Denial Of Jurisdictional Discovery Was Abuse Of Discretion
DENVER - A 10th Circuit U.S. Court of Appeals panel on Aug. 16 reversed and remanded a case in which a Kansas federal judge dismissed a pension fund's complaint against two corporations under the Multiemployer Pension Plan Amendments Act for withdrawal liability because both corporations were domiciled in the Republic of Ireland, saying the judge abused his discretion in not allowing jurisdictional discovery (GCIU-Employer Retirement Fund, et al. v. Coleridge Fine Arts, et al., No. 16-33007, 10th Cir., 2017 U.S. App. LEXIS 15683).

With Jurisdiction Lacking, Writ Compelling Discovery Denied In Patent Case
WASHINGTON, D.C. - An appeal by a patent owner seeking to compel discovery in an infringement action governed by the Biologics Price Competition and Innovation Act of 2009 (BPCIA), Pub. L. No. 111-148, 124 Stat. 119, 804 (2010), was dismissed Aug. 10 by the Federal Circuit U.S. Court of Appeals, which deemed jurisdiction over the dispute lacking under the collateral order doctrine (Amgen Inc. v. Hospira Inc., No. 16-2179, Fed. Cir.).

Jurisdictional Discovery Proper In Trade Secrets Suit, Federal Judge Rules
SHERMAN, Texas - Expedited jurisdictional discovery is warranted in a misappropriation of trade secrets lawsuit filed by a health and wellness direct sales company against its competitor and certain of its employees because the individual defendants are alleged to have had contacts with the state of Texas, a federal judge in Texas ruled Aug. 22 in granting the company's motion (AdvoCare International LP v. Modere Inc., et al., No. 17-0194, E.D. Texas, 2017 U.S. Dist. LEXIS 133613).

Citing U.S. Supreme Court, Judge Allows Discovery On Jurisdiction In Asbestos Case
WILMINGTON, Del. - Citing the recent changes to how courts handle jurisdiction wrought by the U.S. Supreme Court's Bristol-Myers Squibb Co. v. Superior Court of California ruling, a Delaware judge on Aug. 30 granted an asbestos plaintiff additional time to conduct discovery into the issue of personal jurisdiction over a Michigan company (Derry L. Middleton, et al. v. McCord Corp., et al., No. N14C-05-261 ASB, Del. Super., New Castle Co.).

Texas Federal Judge Orders New Deposition In Patent Case
SHERMAN, Texas - A plaintiff will be permitted another opportunity to depose the author of a patent opinion letter at the expense of an infringement defendant "as a remedy" for conduct by defense counsel, a Texas federal judge ruled Aug. 11 (Tech Pharmacy Services LLC v. Alixa Rx LLC, No. 15-766, E.D. Texas, 2017 U.S. Dist. LEXIS 127965).

Attorney: Revive Case Seeking To Unseal Asbestos Client-Coaching Deposition
DALLAS - A motion seeking to unseal Russell Budd's 1997 deposition involving a memo allegedly showing his law firm coaching clients for their own depositions should proceed to a ruling on the merits, an attorney told a Texas appeals court on Sept. 5 (Christine Cole Biederman v. Beverly Jean Brown, et al., No. 01-07-00263-CV, Texas App., 1st Dist.).

Judge Bars Wal-Mart's Use Of Discovery Obtained From Deposition Of Physician
TRENTON, N.J. - A New Jersey federal judge on Aug. 8 granted a plaintiff's motion to strike and bar Wal-Mart Stores East Inc.'s use of the deposition transcript and documents obtained as a result of a March 28 deposition of the plaintiff's physician, but refused to disqualify Wal-Mart's counsel for conducting the deposition (Patricia Hone v. Wal-Mart, Inc., No. 14-1006, D. N.J., 2017 U.S. Dist. LEXIS 124736).

Rapid-American Protests Insurers' Subpoenas To Claims-Processing Facilities
NEW YORK - Chapter 11 debtor Rapid-American Corp. and the asbestos claimants in its case asked a New York federal bankruptcy judge on Aug. 15 to stop the debtor's insurers from enforcing subpoenas they issued to six asbestos claims-processing facilities, saying the subpoenas are "facially overbroad and seek material that is wholly irrelevant" to the issues in an insurance coverage adversary action (Rapid-American Corporation, et al. v. Travelers Casualty and Surety Company, et al., No. 15-01095, S.D. N.Y. Bkcy.).

Asbestos Trusts Seek To Protect Claimants' Data From Companies' Fraud Probe
WILMINGTON, Del. - A bankruptcy court properly placed limits on Honeywell International Inc. and Ford Motor Co.'s access to asbestos claimants' data from nine asbestos bankruptcy trusts, but it should have gone further and denied access altogether based on the "improper nature" of the companies' purpose for seeking access, the trusts argue in an Aug. 1 brief on appeal in Delaware federal court (In re: Motions Seeking Access to 2019 Statements, No. 16-1078, D. Del.).

Judge Issues Order On Sealing Docs In Workers' Comp Insurer, Insolvent Insurer Dispute
ATLANTA - In a dispute over whether workers' compensation policies insured certain staffing companies for claims also tendered to an insolvent insurer, a Georgia federal judge issued a protective order on Aug. 28 on the procedures for sealing confidential materials (Georgia Insurers Insolvency Pool v. Sussex Insurance Co., No. 16-3975, N.D. Ga.).

California High Court: Marshalls Employees' Info Discoverable In Labor Suit
SAN FRANCISCO - A department store did not meet its burden to show that the contact information of employees is not subject to discovery in a wage-and-hour representative suit, the California Supreme Court held July 13, rejecting arguments of overbreadth and privacy violations and vacating the rulings of an appeals court and a trial court (Michael Williams v. The Superior Court of Los Angeles County and Marshalls of CA LLC, No. S227228, Calif. Sup., 2017 Cal. LEXIS 5124).

Magistrate Defines Scope Of Discovery In Google ADEA Lawsuit
SAN JOSE, Calif. - A California federal magistrate judge on July 27 permitted Google Inc. to conduct discovery on a sampling of the plaintiffs who have opted into a collective action alleging discriminatory hiring practices under the Age Discrimination in Employment Act (ADEA), while limiting the amount of discovery Google may seek from each plaintiff (Robert Heath, et al. v. Google Inc., No. 5:15-cv-01824, N.D. Calif.).

Attorney's Estate Entitled To Client Emails In Fees Dispute, Texas Panel Rules
DALLAS - The estate of a deceased attorney was properly granted access to his emails related to a lawsuit at the heart of an unpaid fee dispute, a Texas appeals panel ruled July 25, finding that attorney-client privilege did not bar discovery because the estate stood in the attorney's shoes (In re Cokinos, Boisien & Young, No. 05-16-01331-CV, Texas App., 5th Dist., 2017 Tex. App. LEXIS 6911).

John Doe Virtual Currency User May Intervene In IRS Summons For Users' Records
SAN FRANCISCO - A John Doe customer of a virtual currency firm has established his interest in an Internal Revenue Service enforcement action seeking personal records of the firm's customers, a California federal magistrate judge ruled July 18, granting the Doe's motion to intervene and oppose the IRS's summons (United States v. Coinbase Inc., No. 3:17-cv-01431, N.D. Calif., 2017 U.S. Dist. LEXIS 111756).

FBI Settles FOIA Suit With Privacy Group For $3,000 In Costs, Fees
WASHINGTON, D.C. - The day after the FBI and a privacy rights organization filed a stipulation of dismissal, a District of Columbia federal judge on Aug. 1 adopted the stipulation and dismissed the Freedom of Information Act (FOIA) lawsuit centering on a document request related to the FBI's biometric identification program (Electronic Privacy Information Center v. Federal Bureau of Investigation, No. 1:16-cv-02237, D. D.C.).

Federal Judge Compels Fertilizer Seller To Produce Withheld Discovery
SIOUX CITY, Iowa - An Iowa federal judge on July 7 partially granted a maker and seller of fertilizer's motion to compel a competitor to produce documents that it alleged were improperly withheld but found that the defendants should not be required to produce all of the requested items (Nachurs Alpine Solutions Corp. v. Brian K. Banks, et al., No. 15- 4015, N.D. Iowa, 2017 U.S. Dist. LEXIS 104778).

Dollar General Defends Deposition Of EEOC In Background Check Suit
CHICAGO - The operator of the Dollar General retail chain on July 28 told an Illinois federal court that its requested deposition of the Equal Employment Opportunity Commission is necessary to learn the factual basis for the commission's discrimination claim over the chain's use of employee background checks, asking the court to deny the EEOC's motion for a protective order (Equal Employment Opportunity Commission v. Dolgencorp LLC, No. 1:13-cv-04307, N.D. Ill.).

Insurer Permitted To Depose 2 Individuals Regarding Knowledge Of Policies
INDIANAPOLIS - An Indiana federal judge on July 10 granted an insurer's motion to compel the deposition of two individuals after determining that the insurer is entitled to depose the individuals regarding their knowledge of policies issued to insureds seeking coverage for environmental contamination claims (Eli Lilly and Co., et al. v. Arch Insurance Co., et al., No. 13-1770, S.D. Ind., 2017 U.S. Dist. LEXIS 105833).

Plaintiff Attorney Sanctioned $25,655 For Re-Litigation Of Issues In Enbrel Case
LINCOLN - A Nebraska federal judge on July 17 sanctioned a plaintiff attorney $25,665 for re-litigating settled discovery issues in an Enbrel death case (Jan Vallejo, et al. v. Amgen, Inc., No. 14-50, D. Neb.).

Reinsurer Seeks Discovery Sanctions In Dispute Over Promissory Note With Insurer
LINCOLN, Neb. - An insurer failed to comply with an order requiring complete answers to interrogatories in a dispute concerning sums allegedly owed under a promissory note executed in connection with a reinsurance participation agreement, a reinsurer argues to a Nebraska federal court in a July 12 brief (Applied Underwriters Inc. v. Top's Personnel Inc., No. 15CV90, D. Neb.).

Illinois Court Leaves Stay In Place While Parties Wage Asbestos Discovery Battle
SPRINGFIELD, Ill. - Nothing in the record suggests that a company's appeal of a ruling ordering it to produce index cards it claims contain trade secrets is a frivolous one or that the move is simply a ploy designed to delay trial, an Illinois appeals court held July 26 (Larry Salvatore Sr., et al. v. Cleaver-Brooks, et al., No. 4-17-0244, Ill. App., 4th Dist.).

Judge Grants Motion To Bifurcate Trial And To Hold Bad Faith Issues In Abeyance
LOUISVILLE, Ky. - A Kentucky federal judge on July 18 granted an insurer's motion to bifurcate an insured's bad faith counterclaim from other claims in a hailstorm coverage dispute and to hold the discovery of bad faith issues in abeyance pending the resolution of the other claims (Employers Mutual Casualty Co. v. SG&D Ventures LLC, No. 17-00105, W.D. Ky., 2017 U.S. Dist. LEXIS 111956).

Federal Judge Orders Production Of Reinsurers' General Ledger Info
ATLANTA - A Georgia federal judge on July 19 ordered the production of general ledger information from reinsurers in an insurer's case over alleged fraudulent transfers of reinsurance funds to avoid paying proceeds to the insurer (Canal Insurance Co., et al. v. Golden Isles Reinsurance Company Ltd,, et al., No. 15-03331, N.D. Ga.).

Missouri Federal Judge Grants Limited Discovery In Disability Benefits Suit
ST. LOUIS - A Missouri federal judge on July 11 partially granted a disability claimant's motion for additional discovery, but only as it pertained to a plan administrator's claims-handling guidelines, an administrative services agreement and a limited number of documents from a third-party vendor responsible for conducting independent medical reviews on behalf of the plan administrator (Teresa Heartsill v. Ascension Health Alliance et al., No. 17-155, E.D. Mo., 2017 U.S. Dist. LEXIS 106749).

Workers' Comp Insurer: Discovery Should Be Limited In Suit With Insolvent Insurer
ATLANTA - In a dispute over whether workers' compensation policies insured certain staffing companies for claims also tendered to an insolvent insurer, the workers' compensation insurer argues in a June 27 filing in Georgia federal court that its proposed case management approach should be granted because limited discovery "will suffice to uncover" the facts of the case (Georgia Insurers Insolvency Pool v. Sussex Insurance Co., No. 16-cv-03975, N.D. Ga.).

Court Again Modifies Opinion Declining To Seal Privileged Asbestos Documents
LOS ANGELES - A California appellate court on July 12 modified an opinion declining to seal accidently produced privileged documents discussing the cost-benefit analysis of asbestos products, the second time in less than two weeks that it did so (Elaine Margie Paulus, et al. v. J-MM Manufacturing Company Inc., No. B269904, Calif. App., 2nd Dist., 2017 Cal. App. Unpub. LEXIS 4764).

Judge Unseals Documents Within Crime-Fraud Exception In Asbestos-Tainted Talc Case
NEWARK, N.J. - A judge in New Jersey on July 7 unsealed a pair of special discovery master opinions involving the crime-fraud exception to attorney-client privilege in an asbestos-talc case. The documents remain provisionally sealed so that the parties can appeal the ruling (Audrey Sampson, et al. v. 3M Co., et al., No. MID-L-5384-11AS, N.J. Super., Middlesex Co.).

Reinsurer Opposes Insurer's Motion For Protective Order In Breach Of Contract Suit
PHILADELPHIA - In a breach of contract suit, a reinsurer says in a June 29 filing that a Pennsylvania federal court should deny an insurer's request for a protective order precluding witnesses from testifying to historical reserves and information concerning other reinsurers of asbestos claims (R&Q Reinsurance Co. v. St. Paul Fire & Marine Insurance Co., No. 16-cv-01473, E.D. Pa.).

Discoverability Of Communications With Reinsurers In Bad Faith Cases
By Robert M. Hall I. Introduction When insureds allege bad faith on the part of their insurers, they often seek broad discovery in an attempt to prove their cases. Aside from discovery of reinsurance agreements, which generally is allowed, these efforts can include communications between a ceding insurer and its reinsurer(s) in the hopes of finding a smoking gun. Unsurprisingly, the cases are split on this issue but perhaps the more significant point to be learned from an examination of the selected case law reviewed below is that the outcome of the an effort to obtain such communications can depend on the focus of the request as well as a nuanced response.

Texas High Court Deems Hailstorm MDL Attorney Fee Info Protected As Work Product
AUSTIN, Texas - A Texas Supreme Court majority on June 9 granted an insurer's petition for mandamus in a discovery dispute, finding that a trial court and an appeals court abused their discretion by granting a group of insured's request for billing records from other cases in the same multidistrict litigation because such records are protected from discovery as work product (In Re National Lloyds Insurance Co., Wardlaw Claims Service Inc. and Ideal Adjusting Inc., No. 15-0591, Texas Sup., 2017 Tex. LEXIS 522).

New York Court Agrees: 'Systemic Failure' Waived Asbestos Memo's Protections
NEW YORK - A company waived privilege over a redacted attorney-client memo providing advice involving the asbestos-cement pipe business due to its repeated disclosure concessions, but the company's more strenuous efforts regarding an unredacted version keeps it privileged, a New York appeals court held June 15 (Richard Warren v. Amchem Products Inc., et al., No. 4297, 190281/2014, N.Y. Sup., App. Div., 1st Dept., 2017 N.Y. App. Div. LEXIS 4808).

Illinois Majority Says Insured's Documents May Be Protected
CHICAGO - The First District Illinois Appellate Court on June 30 reversed a trial court's order regarding the production of documents by an insured after determining that the documents may be protected by the attorney-client privilege (Motorola Solutions Inc, v. Zurich Insurance Company, et al., No. 1-16-1465, Ill. App., 1st Dist., Div. 1, 2017 Ill. App. LEXIS 443).

Court Modifies Opinion In Privileged Asbestos Document Case, Denies Rehearing
LOS ANGELES - A California appeals panel on June 30 modified an opinion discussing a company's conduct surrounding privileged document discussing the risk-benefit analysis of asbestos products, but otherwise denied rehearing after refusing to seal the record to protect the document (Elaine Margie Paulus, et al. v. J-MM Manufacturing Company Inc., No. B269904, Calif. App., 2nd Dist.).

Court: Law Firm, Not Lawyer Retained Privilege Over Attorney's Emails
SAN FRANCISCO - A law firm retained privilege over a former asbestos attorney's work product and was not required to obtain his permission before disclosing emails between him and a scientific consulting firm, a California appeals court held June 21 (Tucker Ellis v. The Superior Court of City and County of San Francisco, Evan C. Nelson, No. A148956, Calif. App., 1st Dist., 2017 Cal. App. LEXIS 571).

Insured Failed To Prove Attorney-Client Privilege Was Waived By Insurer
LAS VEGAS - A Nevada federal magistrate judge on June 22 denied an insured's motion to compel an insurer to produce reports and letters from one of its attorneys after determining that the insured failed to prove that the insurer's alleged bad faith conduct warrants a finding that the insurer impliedly waived the attorney-client privilege (Kirsten Spargo v. State Farm Fire and Casualty Company, No. 16-3036, D. Nev., 2017 U.S. Dist. LEXIS 96823).

Judge Denies Compelling Production Of Communications Of Reinsurance Transactions
OWENSBORO, Ky. - A Kentucky federal judge on July 7 denied the government's motion to compel production of all communications in revised privilege logs submitted by an insurer and its insureds concerning taxable years for insurance and reinsurance transactions (United States of America v. Owensboro Dermatology Associates P.S.C., No. 16-00003, United States of America v. Dermatology Property Management LLC, No. 16-00004, United States of America v. Beveled Edge Insurance Co., No. 16-00005, W.D. Ky., 2017 U.S. Dist. LEXIS 105099).

11th Circuit: ACLU Entitled To Jurisdictional Discovery In Records Request Suit
ATLANTA - A trial court erred in not permitting the American Civil Liberties Union of Florida Inc. (ACLU-FL) to conduct discovery that went to the heart of its petition for mandamus over a public records request dispute as well as to the federal jurisdiction of the matter, an 11th Circuit U.S. Court of Appeals panel ruled June 20, remanding the case for discovery (American Civil Liberties Union of Florida Inc., et al. v. City of Sarasota, et al., No. 16-15848, 11th Cir., 2017 U.S. App. LEXIS 10807).

Environmental Plaintiff, United States Stipulate To Delta Smelt Documents
FRESNO, Calif. - The Natural Resources Defense Council (NRDC) and the U.S. Department of the Interior on July 7 stipulated in a California federal court to the production of additional government documents and said they will resolve document admissibility questions through motions and a case challenging adequate federal protection of the threatened Delta smelt fish (Natural Resources Defense Council, et al. v. Ryan Zinke, et al., No. 05-1207, E.D. Calif.).

AP Tells D.C. Circuit That The FBI Conducted An Inadequate FOIA Search
WASHINGTON, D.C. - Appealing a trial court's grant of summary judgment to the Federal Bureau of Investigation and the U.S. Department of Justice (DOJ), The Associated Press and a reporters group argue in a June 29 brief to the District of Columbia Circuit U.S. Court of Appeals that the FBI's responses to their Freedom of Information Act (FOIA) requests were inadequate and ignored information that was clearly responsive (The Reporters Committee for Freedom of the Press, et al. v. Federal Bureau of Investigation, et al., No. 17-5042, D.C. Cir.).

DOJ Asks High Court To Decide If Microsoft Must Produce Foreign-Stored Emails
WASHINGTON, D.C. - Representing the United States in a June 23 petition for certiorari, the U.S. Department of Justice (DOJ) asks the U.S. Supreme Court to consider whether a warrant issued with probable cause under the Stored Communications Act (SCA) can require Microsoft Corp. to produce a customer's emails that are stored in a foreign server (United States of America v. Microsoft Corp. [In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp.], No. 17--2, U.S. Sup.).

Magistrate: Failure To Preserve Browser Histories Negligent, Not Sanctionable
WILMINGTON, N.C. - Although the defendant in a libel suit was negligent in failing to preserve the internet browser histories of its employees for discovery purposes, a North Carolina federal magistrate judge on June 7 found no evidence of intentional conduct that would merit the sanction of adverse jury instructions sought by the plaintiff (Frederic N. Eshelman v. Puma Biotechnology Inc., No. 7:16-cv-00018, E.D. N.C., 2017 U.S. Dist. LEXIS 87282).

Insurer Seeks Discovery Sanctions Against Bank In Reinsurance Dispute
COLUMBIA, S.C. - In a heavily redacted June 19 motion, an insurer asks a South Carolina federal court to impose discovery sanctions on a bank accused of mishandling reinsurance funds because the bank has failed to preserve relevant evidence (Companion Property and Casualty Insurance Co. n/k/a Sussex Insurance Co. v. U.S. Bank National Association v. Redwood Reinsurance Spc. Ltd., et al., No. 15-01300, D. S.C., 2017 U.S. Dist. LEXIS 54182).

Discovery Responses Were Not Deficient, Reinsured Says To Nebraska Federal Court
LINCOLN, Neb. - A reinsured writes in a June 7 letter to a Nebraska federal court that its discovery responses regarding a promissory note and a reinsurance participation agreement were not deficient (Applied Underwriters Inc. v. Top's Personnel Inc., No. 15CV90, D. Neb.).

Embezzlement Victim's Counsel Deemed Not Prosecution Team In Discovery Dispute
SAN FRANCISCO - Although a law firm representing the victim of an embezzlement scheme in a civil suit cooperated with the prosecutors in a criminal case against the embezzler, a California appeals panel on June 5 found that the firm could not be considered part of the prosecution team and, thus, could not be compelled to comply with discovery requests under the requirements of Brady v. Maryland (IAR Systems Software Inc., et al. v. The Superior Court of San Mateo County, et al., No. A149087, Calif. App. 1st Dist., 2017 Cal. App. LEXIS 512).

Discovery Of Non-ACA Plan Information Denied In Insurer's Dialysis Fraud Suit
WEST PALM BEACH, Fla. - Finding that a health insurer's fraud claims related to kidney dialysis were pleaded only for its Patient Protection and Affordable Care Act (ACA) plans, a Florida federal magistrate judge on July 10 denied in part a motion to compel non-ACA plan information from the dialysis provider defendants (UnitedHealthcare of Florida Inc., et al. v. American Renal Associates Holdings Inc., et al., No. 9:16-cv-81180, S.D. Fla.).

Federal Claims Judge Allows Limited Discovery Of U.S. Role In GM Bailout
WASHINGTON, D.C. - A U.S Court of Federal Claims judge on June 14 granted in part a renewed motion for discovery filed by former General Motors Corp. auto dealer franchisees that claim that the U.S. government's action in connection with the GM bailout amounted to a taking of their franchise agreements without just compensation (Colonial Chevrolet Co. Inc., et al. v. United States, No. 1:10-cv-647, Fed. Clms., 2017 U.S. Claims LEXIS 692).

Judge Denies Loan Servicer's Request For Amended Answers On Payments
TAMPA, Fla. - After finding that interrogatories sought by a loan servicer were improper, a Florida federal judge on June 27 denied a request to compel a homeowner, who alleges that the servicer violated the Fair Debt Collection Practices Act (FDCPA) and other laws when it improperly reported that he was delinquent on his loan, to provide amended answers to his previous responses (Joseph C. Suszko v. Specialized Loan Servicing LLC, et al., No. 8:16-cv-2333, M.D. Fla., 2017 U.S. Dist. LEXIS 98788).

Magistrate Judge Denies Motion To Compel In Trade Secrets Lawsuit
CHICAGO - A federal magistrate judge in Illinois on June 20 denied a motion to compel filed by defendants in a misappropriation of trade secrets lawsuit, ruling that the plaintiff has agreed to provide certain information to the defendants as soon as it is located (PolyOne Corp. v. Yun Martin Lu, et al., No. 14-10369, N.D. Ill., 2017 U.S. Dist. LEXIS 94508).

Judge Orders Parties To Turn Over Information In Trade Secrets Lawsuit
OKLAHOMA CITY - Parties in a misappropriation of trade secrets lawsuit are required to provide each other with certain discovery information relating to a former employee's departure from a company and subsequent hiring and duties with a direct competitor, a federal judge in Oklahoma ruled June 16 in granting each party's motion to compel in part (Maxum Petroleum Inc. v. Stephen Hiatt, et al., No. 17-287, W.D. Okla., 2017 U.S. Dist. LEXIS 92719).

Ohio Federal Magistrate Grants Motion To Compel Discovery In Franchise Agreement Dispute
COLUMBUS, Ohio - An Ohio magistrate judge on June 7 granted a plaintiff beer distributor's motion to compel discovery in a franchise agreement dispute between the distributor and brewing companies, saying that information regarding the manner in which the defendant brewing companies have interpreted and/or enforced provisions in their franchise agreement with other distributors is relevant to the case (Southern Glazer's Distributors of Ohio, LLC v. The Great Lakes Brewing Co., et al., No. 2:16-cv-861, S.D. Ohio, Eastern Div.; 2017 U.S. Dist. LEXIS 87365).

Insured Entitled To Documents Related To Underwriting, Federal Magistrate Judge Says
BALTIMORE - A Maryland federal magistrate judge on June 23 determined that an insured is entitled to documents pertaining to an insurer's underwriting review because the documents may help the insured in defending the insurer's misrepresentation claim alleged against the insured in a lead coverage dispute (CX Reinsurance Co. Ltd., f/k/a CNA Reinsurance Co. Ltd. v. B&R Management Inc., et al., No. 15-3364, D. Md., 2017 U.S. Dist. LEXIS 97133).

Judge Orders Reinsurer To Provide Missing Tax Documents To Insurers
ATLANTA - In a case over fraudulent transfers of reinsurance funds, a Georgia federal judge granted in part insurers' motion to compel on June 12, ordering a reinsurer to provide missing tax documents to the insurers (Canal Insurance Co. and Canal Indemnity Co. v. Golden Isles Reinsurance Company Ltd,, et al., No. 15-cv-03331, N.D. Ga.).

Reinsurer Notes Insurer's Inaccuracies, Seeks Discovery Ruling Reconsideration
SYRACUSE, N.Y. - Noting that an insurer's opposition is "riddled with inaccuracies," a reinsurer argues in its June 26 reply brief that a New York federal court should reconsider a discovery ruling in a dispute over asbestos claims or compel the insurer to produce all post-complaint, internal documents involving coverage issues relating to primary and umbrella policies (Utica Mutual Insurance Co. v. R&Q Reinsurance Co., No. 15-cv-270, N.D. N.Y.).

Facebook Seeks Renewed Discovery Stay In Biometrics Class Action
SAN FRANCISCO - Facebook Inc. on June 19 moved to renew a motion to stay discovery in a putative class action alleging that the social network violated Illinois' Biometric Information Privacy Act (BIPA), which it originally filed in California federal court in February, arguing that a pending Ninth Circuit U.S. Court of Appeals ruling could be dispositive of disputed jurisdictional questions and could moot the plaintiffs' discovery requests (In re Facebook Biometric Information Privacy Litigation, No. 3:15-cv-03747, N.D. Calif.).

Appeals Court Dismisses Nationwide's Challenge Of Ruling Denying Discovery Stay
CHILLICOTHE, Ohio - An Ohio appeals panel on May 31 dismissed an appeal from Nationwide Mutual Fire Insurance Co.'s over the denial of its motion to stay discovery in a suit accusing a couple of intentionally setting fire to their home to collect insurance proceeds, finding that the ruling does not require the insurer to produce privileged documents (Nationwide Mutual Fire Insurance Company v. Mark Jones, et al., No. 15CA3709, Ohio App., 4th Dist., 2017 Ohio App. LEXIS 2300).

Vizio, Class Debate 'Tracked Data' Definition In Smart TV Privacy Suit
SANTA ANA, Calif. - In a pair of supplemental memoranda filed June 13 in California federal court, Vizio Inc. and a putative class of owners of its smart TVs argue over the proper definition of the term "tracked data" as it relates to the plaintiffs' wiretap and privacy claims over Vizio's alleged collection of viewer data, as well as to the scope of plaintiffs' discovery requests (In Re: Vizio, Inc., Consumer Privacy Litigation, No. 8:16-ml-02693, C.D. Calif.).

Texas Federal Judge Denies Expedited Discovery Motion In Restaurant Dispute
AUSTIN, Texas - A Texas federal judge on June 19 denied a motion for expedited discovery filed by restaurant franchisors, saying that they will receive the information they seek when the defendant files a written update with the court (Stockade Cos. LLC, et al. v. Kelly Restaurant Group LLC, No. 1:17-cv-143, W.D. Texas, 2017 U.S. Dist. LEXIS 94097).

Oakfabco Must Produce Asset Sale Information To Asbestos Claimants
CHICAGO - Asbestos claimants in the Chapter 11 case of defunct boiler manufacturer Oakfabco Inc. got a boost in their efforts to maximize their potential recoveries from the company June 8 when an Illinois federal bankruptcy judge granted their request to conduct discovery into the debtor's 2009 sale of its remaining operating assets (In re: Oakfabco, Inc., No. 15-27062, N.D. Ill. Bkcy.).

Court Schedules Discovery Into Rapid-American, Insurer Policy Limits Dispute
NEW YORK - A New York federal bankruptcy judge on June 6 issued a scheduling order for fact discovery and identification of expert witnesses in a dispute between Chapter 11 debtor Rapid-American Corp. and one of its insurers over whether a policy has a $7 million or $14 million limit for asbestos liability claims (Rapid-American Corporation, et al. v. Travelers Casualty and Surety Company, et al., No. 15-01095, S.D. N.Y. Bkcy.).

Protective Order For Disability Insurer Granted By New York Federal Magistrate Judge
NEW YORK - A New York federal magistrate judge on June 2 granted a disability insurer's motion for a protective order after determining that the insurer demonstrated that the public disclosure of the information would be valuable to its competitors and place it at a competitive disadvantage (David Robert Aitken v. Aetna Life Insurance Co., No. 16-4606, S.D. N.Y., 2017 U.S. Dist. LEXIS 88181).

Insurer Seeks Protective Order Against Reinsurer In Breach Of Contract Suit
PHILADELPHIA - In a breach of contract dispute, an insurer argues in a June 15 motion that a Pennsylvania federal court should not grant a reinsurer's request to compel the insurer to produce all documents it redacted and, alternatively, should grant a protective order barring the reinsurer from asking questions at depositions about the insurer's reserves and its other reinsurers (R&Q Reinsurance Co. v. St. Paul Fire & Marine Insurance Co., No. 16-cv-01473, E.D. Pa.).

NHL Opposes Attorney Fees For University In Concussion MDL Discovery Dispute
MINNEAPOLIS - The National Hockey League (NHL) on June 5 asked the federal judge overseeing the NHL concussion multidistrict litigation to deny the Boston University Chronic Traumatic Encephalopathy Center (CTE Center)'s motion for attorney fees because the center has not shown that its legal costs would "have been substantially lower if the NHL's motion to compel had been limited only to those requests that were ultimately granted by the Court" (In re: National Hockey League Players Concussion Injury Litigation, MDL No. 14-2551, D. Minn.).