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Preview: LexisNexis® Mealey's™ Discovery Legal News

LexisNexis® Mealey's™ Discovery Legal News

Headline Discovery Legal News from LexisNexis®


Microsoft, Government Debate Extraterritorial Reach Of SCA In High Court
WASHINGTON, D.C. - The U.S. Supreme Court heard oral arguments Feb. 27 from the U.S. government and Microsoft Corp. as to whether a warrant issued under Section 2703 of the Stored Communications Act (SCA) can compel disclosure of data that is stored in overseas servers (United States v. Microsoft Corp., No. 17-2, U.S. Sup.).

Texas High Court Deems Patent Agent Communications Subject To Privilege
AUSTIN, Texas - Concluding that a patent agent's services in the context of patent proceedings are comparable to those provided by a patent attorney, the Texas Supreme Court on Feb. 23 held that a client's communications with his registered patent are exempt from discovery under the state's lawyer-client privilege (In re Andrew Silver, No. 16-0682, Texas Sup., 2018 Tex. LEXIS 171).

AT&T, Time Warner Denied Discovery Of DOJ Privilege Logs In Antitrust Suit
WASHINGTON, D.C. - AT&T Inc. and Time Warner Inc. were denied discovery of certain privilege logs listing governmental communications over their proposed merger from the U.S. Department of Justice (DOJ) on Feb. 20, when a District of Columbia federal judge found that the companies failed to establish evidence of the DOJ's selective enforcement of antitrust claims against them to justify such discovery (United States v. AT&T Inc., et al., No. 1:17-cv-02511, D. D.C., 2018 U.S. Dist. LEXIS 27004).

Most Emails Sought Are Shielded From Discovery In Pollution Coverage Row
FORT WAYNE, Ind. - Twelve of 19 emails between an insurer, a claims management company and attorneys are protected from discovery by the work product doctrine, an Indiana federal magistrate judge determined Feb. 6 after conducting an in camera review of the emails sought by an insured in an environmental contamination coverage dispute (Valley Forge Insurance Company v. Hartford Iron & Metal, Inc., et al., No. 1:14-cv-00006, N.D. Ind., 2018 U.S. Dist. LEXIS 19695).

$25,000-A-Day Discovery Sanction Against Apple In FTC Antitrust Suit Set Aside
SAN JOSE, Calif. - A California federal judge on Feb. 7 granted nonparty Apple Inc. relief from a magistrate's order levying a $25,000-a-day discovery sanction against the firm in a Federal Trade Commission antitrust suit, with the judge deeming authority for the sanction order unclear (Federal Trade Commission, et al. v. Qualcomm Inc., et al., No. 17-cv-00220, N.D. Calif.).

Federal Judge Declines To Strike Trade Secret In Misappropriation Suit
NEWARK, N.J. - A trade secret will not be stricken in a misappropriation of trade secrets lawsuit because a pharmaceutical company's exclusion of evidence for the trade secret was not done with willful deception or in "flagrant disregard of a court order by the proponent of the evidence," a federal judge in New Jersey ruled Feb. 8 in denying a motion by defendants to strike the trade secret (Par Pharmaceutical Inc., et al. v. QuVa Pharma Inc., et al., No. 17-6115, D. N.J., 2015 U.S. Dist. LEXIS 20775).

Oklahoma High Court: Honda Had No Duty To Preserve 12-Year Old Data
OKLAHOMA CITY - Reversing a trial court's sanctions order, the Oklahoma Supreme Court on Feb. 13 held that American Honda Motor Co. Inc. did not have a duty to preserve certain electronic design data because there was no reason to anticipate a product liability suit that would be filed 12 years after the data's routine destruction (American Honda Motor Company Inc. v. Harold G. Hayward Jr., et al., No. 116,394, Okla. Sup., 2018 OK 14).

Olympus Sanctioned With New 'Scope Trial, $250,000 For Discovery Violations
SEATTLE - A Washington state court judge on Jan. 16 sanctioned Olympus America Inc. for discovery violations in a duodenoscope wrongful death trial, ordering a new trial for consumer law violations and punitive damages and ordering the defendant to pay $250,000, retrial and translation costs in addition to the $1 million verdict from the first trial (Theresa Bigler, et al. v. Olympus America, Inc., et al., No. 15-2-05472-4, Wash. Super., King Co.).

Abilify Co-Defendant Says It Can't Be Sanctioned For Deleting Emails Before Suits
PENSACOLA, Fla. - Abilify co-marketer Otsuka American Pharmaceutical Inc. (OAPI) on Feb. 22 told a Florida multidistrict litigation judge that it should not be sanctioned for discovery violations because it had no duty to preserve emails well before any litigation could have been anticipated (In Re: Abilify [Aripiprazole] Products Liability Litigation, MDL Docket No. 2734, No. 16-md-2734, N.D. Fla., Pensacola Div.).

Fired Employee May Conduct Discovery Into Confidential Data Breach Suit Documents
PHOENIX - Granting a joint discovery resolution motion filed by the parties in a wrongful termination suit, an Arizona federal magistrate judge on Feb. 14 found that an employee who was purportedly terminated for whistleblowing related to data breaches experienced by his former employer was entitled to conduct discovery into why documents related to lawsuits over those breaches were designated as confidential (Miguel Corzo v. Maricopa County Community College District, et al., No. 2:15-cv-02552, D. Ariz.).

Insurer Ordered To Produce Documents As They Pertain To Missing Liability Policy
BUFFALO, N.Y. - An insurer must produce a number of insurance policy forms related to commercial general liability policies it issued in the 1970s because the documents are clearly relevant to an insured's claim for coverage for underlying asbestos liabilities under a missing policy, a New York federal magistrate judge said Feb. 26 (American Precision Industries Inc. v. Federal Insurance Co., et al., No. 14-1050, W.D. N.Y., 2018 U.S. Dist. LEXIS 30596).

Federal Judge Dismisses ERISA Claim For Failure To Provide Discovery
CLARKSBURG, W.Va. - A West Virginia federal judge on Feb. 12 found that a benefits plan and insurer were not obligated to provide a plan participant with documents in relation to his discovery request because they are not the plan administrators, granting them summary judgment on his claim for violation of the Employee Retirement Income Security Act of 1974 (Figlioli v. Liberty Life Assurance Company of Boston, et al., No. 1:17CV171, N.D. W.Va., 2018 U.S. Dist. LEXIS 22155).

Magistrate Judge Orders Medical Providers To Turn Over Documents From Database
LOS ANGELES - Medical service providers accused by UnitedHealth Group Inc. of submitting fraudulent bills were ordered by a federal magistrate judge in California on March 2 to provide responsive documents that are contained in a database, finding that the company that has the software license for the database is an alter ego of the providers (Almont Ambulatory Surgery Center LLC, et al. v. UnitedHealth Group Inc., et al., No. CV 14-03053-MWF, C.D. Calif., 2018 U.S. Dist. LEXIS 35616).

New Jersey Court Revives Asbestos-Tainted Fertilizer Case After Discovery Error
TRENTON, N.J. - A lawn care company's failure to disclose the existence of 26 vintage bags of product containing vermiculite from the asbestos-contaminated Libby, Mont., mine warrants vacating final judgment and reopening the case, a New Jersey appellate court held Feb. 26 (Adrianne Brandecker, et al. v. E&B Mill Supply Co., et al., No. A-05722-14T4, N.J. Super., App. Div.).

Kansas Court Found To Have Properly Denied Source Code Review Request
TOPEKA, Kan. - A Kansas court did not err in denying a plaintiff's request to review the source codes for a program he helped develop and requiring review of the code to be done by a third party, while prohibiting him from using the third party as an expert witness because the plaintiff failed to name an expert witness during the allowable timeframe, a Kansas Court of Appeals panel ruled Feb. 16 in affirming the lower court's ruling (John Macklin v. Liquidynamics Inc., No. 116,620, Kan. App., 2018 Kan. App. Unpub. LEXIS 115).

Justice Permits Jurisdictional Inquiry Into Talc Miner's Status In Asbestos Case
NEW YORK - A French company must respond to an inquiry regarding its potential status as a successor to a company that allegedly mined asbestos-tainted talc and would be subject to jurisdiction in New York, a justice in the state said in partially limiting the disclosures the company must make in an opinion posted Feb. 27 (Joan Arazosa, et al. v. 3M Co., et al., No. 190069/2016, N.Y. Sup., New York Co.).

Question Of Waiver Snags Tribe's Dismissal Request For Negligent Care Claims
TACOMA, Wash. - A Washington state Indian tribe cannot yet use sovereign immunity to avoid facing negligent medical care and treatment claims because jurisdictional discovery needs to be conducted to determine whether the tribe waived immunity through its business relationships with private party medical care providers, a federal judge ruled Feb. 21 in denying the tribe's dismissal bid (The Estate of Jolene Lovelett v. State of Washington, et al., No. 16-5922, W.D. Wash., 2018 U.S. Dist. LEXIS 27959).

Class, Defendants Debate Jurisdiction And Discovery In Flint Lead Water Case
DETROIT - Engineering consultants named as defendants in the lead-contaminated water crisis in Flint, Mich., and the class of plaintiffs alleging that they have been injured by that water on Feb. 9 filed briefs debating whether the federal district court has jurisdiction to order certain discovery at the current stage of the litigation (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).

Rapid-American Denied Protective Order For Insurers' Subpoenas
NEW YORK - Chapter 11 debtor Rapid-American Corp. and asbestos claimants in its bankruptcy case do not have standing to challenge subpoenas served by insurers to asbestos claims-processing facilities seeking evidence of fraud in the asbestos trust system, and besides, the information sought is relevant to the debtor's declaratory judgment action against the insurers, a New York federal bankruptcy judge held Feb. 12 (Rapid-American Corporation, et al. v. Travelers Casualty and Surety Company, et al., No. 15-01095, S.D. N.Y. Bkcy., 2018 Bankr. LEXIS 378).

Judge Affirms Exclusion Of Unchallenged Deposition Testimony In Asbestos Case
WILMINGTON, Del. - Defendants' postponement of a deposition did not waive their right to cross-examine the witness, who died two weeks after he gave truncated testimony, a Delaware judge held Feb. 7 in finding the testimony inadmissible (William Derek Sykes, et al. v. Air & Liquid Systems Corp., et al., No. N14C-03-028 ASB, Del. Super., New Castle Co.).

Agencies' Responses To FOIA Requests About Toxins 'Insufficient,' Judge Says
WASHINGTON, D.C. - A federal judge in the District of Columbia District Court on Feb. 13 partially granted and partially denied a motion for summary judgment filed by federal agencies as part of a Freedom of Information Act (FOIA) lawsuit pertaining to chemical contamination at an Army base, ruling that some of the agencies did not provide sufficient information to satisfy the records request (Raymond C. Pulliam v. U.S. Environmental Protection Agency, et al., No. 15-1405. D. D.C.; 2018 U.S. Dist. LEXIS 23505).

Due Diligence Exercised With FOIA Request For Bears Ears Documents, DOI Says
NEW YORK - The U.S. Department of the Interior (DOI) on Jan. 25 filed an answer in New York federal court contending that it exercised due diligence in processing the request of the New York Times Co. under the Freedom of Information Act (FOIA), 5 U.S.C. 552, pertaining to documents the newspaper sought regarding the federal government's plans to reduce the size of Bears Ears National Monument and open the area to hydraulic fracturing (New York Times Company, et al. v. United States Department of the Interior, No. 17-9883, S.D. N.Y.).

Defendants Afforded Time To Conduct Discovery In Lead Paint Coverage Dispute
BALTIMORE - A Maryland federal judge on Feb. 22 denied an insurer's motion for summary judgment in a lead paint injury coverage suit after determining that the defendants must first be afforded the opportunity to conduct discovery on the issue of whether the insured made a material misrepresentation in the policy application (CX Reinsurance Co. Ltd., et al. v. Homewood Realty Inc., et al., No. 15-3136, D. Md.; 2018 U.S. Dist. LEXIS 28354).

Federal Judge Won't Extend Witness, Discovery Deadlines In Asbestos Case
KANSAS CITY, Kan. - A rail car company provided no justification for why it could not have identified an expert asbestos state-of-the-art witness prior to the passage of an already extended deadline, a federal judge in Kansas held Feb. 13 in denying a motion to extend discovery and disclosure periods (Nancy Little, et al. v. The Budd Co., No. 16-4170, D. Kan., 2018 U.S. Dist. LEXIS 23230).

Plaintiffs' Attempt To Lift Discovery Stay 'Improper,' Company Argues
SAN FRANCISCO - Pacific Gas & Electric Co. (PGE) filed a brief in California federal court on Jan. 25 arguing that the plaintiffs, who allege that the company's manufactured gas plant (MGP) has contaminated local groundwater, made an "improper" motion for an order confirming the lack of any stay of discovery in the action or, alternatively, an order lifting the stay (San Francisco Herring Association, et al. v. Pacific Gas & Electric Company, No. 14-04393, N.D. Calif.).

Federal Judge Seals Administrative Record In Disability Insurance Dispute
SEATTLE - A Washington federal judge on Feb. 12 granted a motion jointly filed by both parties to seal the entire administrative record of a disability insurance dispute, finding that the plaintiff's right to medical privacy and the inability to redact portions of the record outweigh the public's right to access the information (David Alan Anderson v. Unum Life Insurance Company of America, No. C17-0659-JCC, W.D. Wash., 2018 U.S. Dist. LEXIS 22661).

Judge Extends Deadlines In Cases Over Reinsurance Participation Agreement
SACRAMENTO, Calif. - In two putative class actions over a reinsurance participation agreement (RPA), a California federal judge on Feb. 6 issued extensions on deadlines for expert disclosures, completion of discovery and discovery motions (Shasta Linen Supply Inc. v. Applied Underwriters Inc., et al., Nos. 16-00158 & 16-01211, E.D. Calif., 2018 U.S. Dist. LEXIS 6079).

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 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.).