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LexisNexis® Mealey's™ Discovery Legal News

Headline Discovery Legal News from LexisNexis®


New York High Court Deems Warrant Quash Denials On Facebook Nonappealable
ALBANY, N.Y. - A New York Court of Appeals majority on April 4 upheld an appeals court's ruling that Facebook Inc.'s motion to quash warrants seeking user information per the Stored Communications Act (SCA) was properly denied, finding that the order, which was in conjunction with a criminal investigation, was nonappealable (In the Matter of 381 Search Warrants Directed to Facebook Inc., No. 16, N.Y. App., 2017 N.Y. LEXIS 767).

Job Review Site Doesn't Have To Reveal Anonymous Poster, California Panel Rules
SAN JOSE, Calif. - A company asserting that an ex-employee revealed confidential information in anonymous postings on an employer review website failed to establish the proprietary nature of the information, a California appeals panel ruled March 10, vacating a trial court's ruling ordering the site to identify the employee (Glassdoor Inc. v. Superior Court of Santa Clara County and Machine Zone Inc., No. H042824, Calif. App., 6th Dist., 2017 Cal. App. LEXIS 213).

Judge: State Officials Immune From SCA Liability For Seized Electronic Records
MADISON, Wis. - A Wisconsin federal judge on March 16 found several state officials not liable for violation of the Stored Communications Act (SCA) in the seizure of an organization's electronic records as part of an investigation, finding the relevant warrants to have been issued in compliance with the statute and deeming the officials entitled to immunity under the act (The John K. MacIver Institute for Public Policy Inc. v. Francis Schmitz, et al., No. 3:16-cv-00539, W.D. Wis., 2017 U.S. Dist. LEXIS 36796).

Iowa Supreme Court Deems Hospital Safety Report Not Subject To Discovery
DES MOINES, Iowa - An Iowa morbidity and mortality statute shields a hospital's safety report from discovery in a patient's negligence suit, the Iowa Supreme Court ruled April 7, reversing a trial court order compelling its production (Dennis Willard v. State of Iowa, No. 16-1009, Iowa Sup., 2017 Iowa Sup. LEXIS 31).

GSK Must Produce Records For Justice Department Probe Of Zofran Off-Label Sales
BOSTON - A Massachusetts federal magistrate judge in the Zofran multidistrict litigation on April 6 granted a plaintiffs' motion to compel defendant GlaxoSmithKline LLC (GSK) to produce documents related to the U.S. Department of Justice's investigation into the off-label marketing of the anti-nausea drug suspected of causing birth defects (In Re: Zofran [Ondanestron] Products Liability Litigation, MDL Docket No. 2657, No. 15-md-2657, D. Mass.).

Court: IRS Must Disclose Tax Returns Of Tribal Workers In Classification Dispute
WASHINGTON, D.C. - A Native American tribe can seek through discovery tax return information from the Internal Revenue Service for people who worked for the tribe in an effort to avoid paying withholding taxes for workers the IRS reclassified from contractors to employees, the U.S. Tax Court held April 5 (Mescalero Apache Tribe v. Commissioner of Internal Revenue, No. 28120-14, U.S. Tax, 2017 U.S. Tax Ct. LEXIS 12).

Benicar MDL Plaintiff Experts Must Produce Patient Records Relied On In Reports
CAMDEN, N.J. - A New Jersey federal magistrate judge overseeing the Benicar multidistrict litigation on March 13 ordered plaintiffs to produce redacted records of Benicar patients on which two experts relied (In Re: Benicar [Olmesartan] Products Liability Litigation, MDL Docket No. 2606, No. 15-2606, D. N.J.).

Fracking Royalty Class Seeks To File Restricted Response To Dismissal Motion
DENVER - An oil and gas company that is a class representative in a royalty dispute with a hydraulic fracturing company on April 3 moved in Colorado federal court for permission to file a restricted revised response in opposition to the fracking company's motion for summary judgment to protect confidential business information (Phelps Oil And Gas LLC v. Noble Energy Inc., No. 14-2604, D. Colo.).

3rd Circuit Affirms Contempt Judgment For Refusal To Decrypt Devices
PHILADELPHIA - A child pornography suspect was correctly found to be in contempt when he refused to comply with a court order requiring him to provide law enforcement with access to external hard drives, a Third Circuit U.S. Court of Appeals panel ruled March 20, finding that the defendant's rights under the Fifth Amendment to the U.S. Constitution were not violated (United States of America v. Apple Mac Pro Computer, et al., No. 15-3537, 3rd Cir.; 2017 U.S. App. LEXIS 4874).

Government Says Discovery Conference Is Unnecessary In NSA Data-Collection Suit
WASHINGTON, D.C. - Citing a pending motion to dismiss a suit over the data-collection practices of the National Security Agency (NSA), the federal government defendants tell a District of Columbia federal court in an April 10 brief that a discovery conference the plaintiffs seek to compel is "uncalled for" (Larry Elliott Klayman, et al. v. Donald J. Trump, et al., Nos. 1:13-cv-00851 and 1:13-cv-00881, D. D.C.).

Louisiana Panel: Court Erred In Finding Case Abandoned Due To Unsigned Discovery
GRETNA, La. - A Louisiana appeals panel on March 15 reversed a lower court's dismissal of a lawsuit alleging that an insured breached a partnership agreement involving the opening of a new restaurant/bar and nightclub, concluding that the lower court erred in granting motions by the insured and his professional liability insurer to dismiss the case due to abandonment (Marlen Nunez v. Cesar R. Burgos, et al., No. 16-CA-568, La. App., 5th Cir.).

ACLU Asks High Court To Review FOIA 'Agency Record' Standard
WASHINGTON, D.C. - In a case arising from a Freedom of Information Act (FOIA) request for a Senate Select Committee on Intelligence (SSCI) report on the Central Intelligence Agency's detention and interrogation program, the American Civil Liberties Union (ACLU) in an April 3 reply brief asks the U.S. Supreme Court to clarify the standard for when a document becomes an "agency record" that is subject to FOIA requests (American Civil Liberties Union, et al. v. Central Intelligence Agency, et al., No. 16-629, U.S. Sup.).

Group Seeks Encrypted EPA Communications In FOIA Lawsuit
WASHINGTON, D.C. - A government watchdog group on March 21 filed a complaint in District of Columbia federal court against the Environmental Protection Agency, alleging that the agency violated the Freedom of Information Act (FOIA), 5 U.S.C. 552, by not timely providing certain employees' communications that were sent using an encryption application (Cause of Action Institute v. Environmental Protection Agency, No. 1:17-cv-00509, D. D.C.).

Wrongly Disclosed Materials To Be Returned In Bad Faith Case; Counsel Disqualified
ORLANDO, Fla. - A Florida federal judge on March 30 found that privileged attorney communications were mistakenly submitted in response to an insurer's discovery request in an insurance bad faith lawsuit, leading the judge to affirm a magistrate's order compelling the documents' return to the plaintiff (Nadine Walker v. GEICO Indemnity Co., No. 6:15-cv-01002, M.D. Fla., 2017 U.S. Dist. LEXIS 47670).

Judge Finds Excess Insurer Waived Communications Privilege In Defects Claim File
CHARLESTON, S.C. - An excess insurer waived the attorney-client privilege on communications contained in its claim files with regard to the denial of a claim arising out of construction defects, a South Carolina federal judge held March 31 (ContraVest Inc., et al. v. Mt. Hawley Insurance Co., No. 15-00304, D. S.C., 2017 U.S. Dist. LEXIS 48638).

Magistrate Rules On Discovery Motions In Bad Faith Dispute Over Vandalism Claim
SEATTLE - A Washington federal magistrate judge on March 24 granted in part an insurer's motion for a protective order and denied in part insureds' motion to compel production of documents in a bad faith lawsuit arising from the insureds' $185,000 claim for vandalism damage (Stay@Home Design LLC, et al. v. Foremost Insurance Company Grand Rapids, Michigan, No. 16-1673, W.D. Wash., 2017 U.S. Dist. LEXIS 44734).

Judge Denies Monsanto's Motion To Seal Documents Regarding Dangers Of Glyphosate
SAN FRANCISCO - A federal judge in California on March 13 issued an order denying Monsanto Co.'s motion to seal documents that it submitted in connection with a motion to compel the testimony of a former official at a federal environmental agency pertaining to the harmful effects of glyphosate, the active ingredient in the herbicide Roundup (In Re: Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

Insurer Says Information Party Wants Sealed Was Disclosed In Recent Decision
SYRACUSE, N.Y. - A nonparty insurer told a federal court in New York on March 7 that portions of the materials that an insurer in a reinsurance dispute wants to be placed under seal were publicly aired in a recent decision in a related case (Utica Mutual Insurance Company v. Munich Reinsurance America, Inc., No. 12-cv-00196, and Munich Reinsurance America, Inc. v. Utica Mutual Insurance Company, No. 13-cv-00743, N.D. N.Y.).

Counsel's Conduct Leads To Termination Sanctions In Trade Secrets Suit
SAN FRANCISCO - Ruling that plaintiff's counsel's conduct rose to the level of "insubordination" throughout the discovery process, a federal judge in California on March 9 dismissed a company's misappropriation of trade secrets lawsuit against its former CEO and several others and ordered termination sanctions (Loop AI Labs Inc. v. Anna Gatti, et al., No. 15-0798, N.D. Calif., 2017 U.S. Dist. LEXIS 34109).

Ohio Magistrate Won't Exclude Evidence As Sanction In Copyright Case
CLEVELAND - A copyright infringement plaintiff's request that evidence of expenses, deductions or allocations be excluded from the calculation of damages in connection with a defendant's alleged discovery abuses was denied March 7 by an Ohio federal magistrate judge (Design Basics LLC v. Petros Homes Inc., et al., No. 14-1966, N.D. Ohio, 2017 U.S. Dist. LEXIS 32066).

California Federal Judge Sides With Copyright Infringement Defendant
LOS ANGELES - On the heels of a March 9 recommendation by a California federal magistrate judge that a copyright infringement plaintiff should be sanctioned for failure to comply with a discovery order, a California federal judge on March 31 granted a defendant partial summary judgment with regard to 11 of 12 allegedly infringing fabric designs (Urban Textile v. Rue 21 Inc. and Mark Edwards Apparel Inc., No. 14-8285, C.D. Calif., 2017 U.S. Dist. LEXIS 49573).

Experian Data Breach Plaintiffs Seek Discovery Of Security Vendor's Documents
SANTA ANA, Calif. - In a March 25 motion, the plaintiffs in a putative class action over a 2015 data breach experienced by Experian Information Solutions Inc. asked a California federal court to compel production of post-breach investigative documents by a security vendor, disputing the defendant's claim that the documents are shielded by attorney-client privilege (In Re Experian Data Breach Litigation, No. 8:15-cv-01592, C.D. Calif.).

Judge Grants Motion To Compel Admissions From Chiropractor Accused Of Fraud
SEATTLE - A federal judge in Washington on March 7 ordered a chiropractor and his practice to submit better responses to State Farm Mutual Automobile Insurance Co.'s requests for information regarding treatments provided for patients that are subject to an alleged fraudulent billing scheme (State Farm Mutual Automobile Insurance Company v. Peter J. Hanson, P.C. d/b/a Hanson Chiropractic, et al., No. C16-1085RSL, W.D. Wash., 2017 U.S. Dist. LEXIS 32719).

Apple Seeks Discovery Of U.K. Suit Documents In Wireless Tech Patent Case
SAN FRANCISCO - In a March 29 reply brief in California federal court, Apple Inc. defended its motion to compel discovery of documents from a lawsuit in the United Kingdom, contending that "they may bear on whether [Unwired Planet LLC's] damages demand" in the present patent case "constitutes a 'reasonable' royalty" (Unwired Planet LLC v. Apple Inc., No. 3:13-cv-04134, N.D. Calif.).

Purchase Of Retirement Home Is Relevant To Claim For Disability Benefits, Judge Says
WEST PALM BEACH, Fla. - Because certain circumstances regarding a disability claimant's move to Florida may be relevant to a claim for total disability benefits, a Florida federal judge on March 29 determined that a disability insurer is entitled to information regarding the claimant's real estate transactions (Mark Goodman v. Security Mutual Life Insurance Company of New York, No. 16-81742, S.D. Fla.; 2017 U.S. Dist. LEXIS 45966).

Reinsurer Wants To Know Why Reinsured Allocated Asbestos Losses The Way It Did
BOSTON - A reinsurer asked a federal court in Massachusetts on March 24 to compel its reinsured to supply documents relating to the allocation of asbestos-related losses (Lamorak Insurance Company v. Everest Reinsurance Co., No. 15-cv-13425, D. Mass.).

Michigan Employees: Motion To Compel Flint Water Crisis Discovery 'Misguided'
DETROIT - Employees of Michigan who are being sued for liability connected to the lead-contaminated water crisis in Flint, Mich., on March 22 filed a brief in which they contend that the federal judge hearing the case should deny the plaintiffs' motion to compel discovery on grounds it is "a misguided attempt to compel" one of the defendants' experts to create documents for the plaintiffs which do not presently exist (Lawrence Washington, Jr., et al. v. Governor Richard Dale Snyder, et al., No. 16- 11247, E.D. Mich.)

Company: Discovery Sought In Lithium Battery Injury Case 'Unduly Burdensome'
OKLAHOMA CITY - One of the defendants sued in connection with injuries suffered by two workers when a lithium battery exploded during a hydraulic fracturing operation on March 17 filed a brief in Oklahoma federal court contending that its delay in responding to discovery requests is not a refusal to comply, but rather is due to the fact that the request is "overly broad and unduly burdensome" (Jacob McGehee, et al. v. Southwest Electronic Energy Corporation, et al., and Southwest Electronic Energy Corporation v. Engineered Power LP, et al., No. 15-145, W.D. Okla.).

Halliburton: Residents In Drinking Water Case Not Complying With Discovery
OKLAHOMA CITY - Halliburton Energy Services Inc. (HESI) on March 16 filed a brief in Oklahoma federal court contending that residents who have sued the company alleging that it is liable for contaminating their drinking water are not complying with the company's discovery requests (Mitchell L. McCormick, et al. v. Halliburton Energy Services Inc., No. 11-1272 and Albin Family Revocable Living Trust, et al. v. Halliburton Energy Services Inc., No. 16-910, W.D. Okla.).

Company: Motion To Compel Discovery In Well Interference Case Should Be Denied
OKLAHOMA CITY - A hydraulic fracturing company on Feb. 22 filed a brief in Oklahoma federal court arguing that the court should deny a motion to compel production of certain evidence sought by the oil company that has sued the fracking company for allegedly interfering with operations at one of its wells (Singer Oil Company LLC v. Newfield Exploration Midcontinent Inc., et al., CIV-16-768, W.D. Okla.).

Judge: Discovery Needed To Interpret Meaning Of Environmental Activities
NEWARK, N.J. - A federal judge in New Jersey on April 3 denied General Electric Co.'s (GE) motion to dismiss a lawsuit seeking cost recovery and contribution under the Comprehensive Environmental Response, Compensation, and Liability Act for contamination at a site sold to a developer in 2015, ruling that discovery is needed to find the definition of "environmental response activities" in the indemnity and settlement agreement (ISA) (BRG Harrison Lofts Urban Renewal LLC v. General Electric Company, No. 16-6577, D. N.J., 2017 U.S. Dist. LEXIS 50265).

Deposition Of Former EPA Official Proper In Glyphosate Injury Case, Plaintiffs Say
SAN FRANCISCO - The Plaintiffs' Executive Committee (PEC) in the multidistrict litigation for those alleging injuries from the herbicide Roundup on March 14 filed an unredacted brief in California federal court arguing that it should be allowed to depose a former employee of the U.S. Environmental Protection Agency because there is evidence that he tried to "kill" the "glyphosate/lymphoma issue" for Monsanto Co., which manufactures Roundup (In re: Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

Judge Allows Reinsured To File Deposition Transcripts Under Seal
NEW HAVEN, Conn. - A federal judge in Connecticut on March 8 granted an insurer permission to file certain documents under seal, including deposition transcripts regarding an asbestos reinsurance dispute (Travelers Casualty and Surety Company, f/k/a The Aetna Casualty and Surety Company v. Century Indemnity Company as successor to Insurance Company of North America, No. 16-cv-00170, D. Conn.).

California High Court: Texts, Emails On Private Accounts Subject To Disclosure
SAN FRANCISCO - Government agencies' "[e]mployees' communications about official agency business may be subject to" disclosure under the California Public Records Act (CPRA) even if they were sent or received via personal email or phone accounts, the California Supreme Court ruled March 2, reversing and remanding an appeals court's decision (City of San Jose, et al. v. The Superior Court of Santa Clara County and Ted Smith, No. S218066, Calif. Sup., 2017 Cal. LEXIS 1607).

University Of Michigan Sued For Not Fulfilling 'Trump' Emails Records Request
LANSING, Mich. - The University of Michigan (UM) was hit with a lawsuit in Michigan court March 2, with a research and educational organization claiming that the university failed to comply with its request under the Michigan Freedom of Information Act (MFOIA) for copies of emails UM's president sent containing the word "Trump" (Mackinac Center for Public Policy v. University of Michigan, No. 17-000050-MZ, Mich. Clms.).

U.S. Supreme Court Hears Arguments On EEOC Subpoena Review
WASHINGTON, D.C. - A unitary abuse of discretion standard is the appropriate one to use when reviewing the Equal Employment Opportunity Commission's subpoena enforcement decisions, an attorney representing an employer argued before the U.S. Supreme Court on Feb. 21 (McLane Company, Inc. v. Equal Employment Opportunity Commission, No. 15-1248, U.S. Sup.).

10th Circuit Affirms Denial Of Enforcement Of EEOC Subpoena
DENVER - The Equal Employment Opportunity Commission failed to establish a connection between a woman's discrimination complaint against her former employer and its request for information related to its investigation of a suspected companywide pattern or practice of discriminating against pregnant and disabled employees, a 10th Circuit U.S. Court of Appeals panel ruled Feb. 27, finding that a trial court did not abuse its discretion in declining to enforce the EEOC's administrative subpoena on the employer (Equal Employment Opportunity Commission v. TriCore Reference Laboratories, No. 16-2053, 10th Cir., 2017 U.S. App. LEXIS 3481).

8th Circuit Affirms Daubert, Evidence Suppression Rulings In Child Porn Case
OMAHA, Neb. - A trial court properly found that a procedural notice error in the application of a warrant that led to a child pornography conviction did not prejudice the defendant, an Eighth Circuit U.S. Court of Appeals panel ruled Feb. 17, upholding the denial of the defendant's motion to suppress evidence obtained via the warrant (United States of America v. Kirk Cottom, No. 16-1050, 8th Cir., 2017 U.S. App. LEXIS 2789).

After Customer Consents, Amazon Submits Echo Data In Arkansas Murder Case
BENTONVILLE, Ark. - In an Arkansas judge's March 6 order, it was disclosed that Inc. submitted to law enforcement the recordings from an Amazon Echo device belonging to a murder defendant in compliance with a police warrant that Amazon previously sought to quash under privacy and free speech concerns (State of Arkansas v. James A. Bates, No. CR-2016-370-2, Ark. Cir., Benton Co.).

World Health Organization Documents On Glyphosate Not Protected, Monsanto Says
SAN FRANCISCO - Monsanto Co. on Feb. 9 filed a brief in California federal court arguing that the documents it seeks in a subpoena of nonparties in a glyphosate-injury lawsuit are not property of the International Agency for Research on Cancer (IARC); therefore, they should be turned over to the company (In Re: Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

Judge Quashes Insurer's Subpoena On Google Seeking Firm's Emails
SEATTLE - A federal judge in Washington on Feb. 7 quashed a subpoena served on Google Inc. by Allstate Insurance Co., finding that documents the insurer requested related to records from email accounts associated with a law firm accused of submitting fraudulent insurance claims are shielded from discovery by the Stored Communications Act (SCA) (Allstate Insurance Co. v. Lighthouse Law P.S. Inc., et al., No. C15-1976RSL, W.D. Wash., 2017 U.S. Dist. LEXIS 17284).

Federal Circuit Upholds Polymer Firm's Sanctions In ITC Trade Secret Suit
WASHINGTON, D.C. - In light of the "staggering scale" of evidence spoliation conducted by a polymer manufacturer that was the target of an investigation by the U.S. International Trade Commission (ITC), a Federal Circuit U.S. Court of Appeals panel on Feb. 15 upheld the commission's imposition of discovery sanctions against the firm in the form of default judgment and an exclusion order (Organik Kimya Sav. Ve Tic., A.S., et al. v. U.S. International Trade Commission, et al., No. 15-1774 and 15-1833, Fed. Cir., 2017 U.S. App. LEXIS 2623).

Magistrate Criticizes Discovery Responses In Copyright Case, Scolds Entire District
NEW YORK - In a Feb. 28 ruling, a New York federal magistrate judge not only found a copyright and trademark defendant's discovery responses to be noncompliant with Federal Rule of Civil Procedure 34, he also took the opportunity to criticize attorneys throughout the district for continually failing to comply with December 2015 amendments to the rule (James H. Fischer v. Stephen T. Forrest Jr., et al., No. 1:14-cv-01304 and 1:14-cv-01307, S.D. N.Y., 2017 U.S. Dist. LEXIS 28102).

Halliburton: Discovery, Trial Schedule Should Be Changed; Plaintiffs 'Misleading'
OKLAHOMA CITY - Halliburton Energy Services Inc. (HESI) on March 1 filed a brief in Oklahoma federal court, arguing that the district court should modify a scheduling order to extend the discovery deadline and change the date of trial plaintiff selection in a collection of lawsuits brought by residents who allege that the company is liable for their injuries by the alleged presence of perchlorate in the aquifer that supplies their drinking water (Albin Family Revocable Living Trust, et al. v. Halliburton Energy Services Inc., No. 16-910, W.D. Okla.).

Texas High Court Refuses To Rehear Ruling On Discovery Order In Hailstorm Dispute
AUSTIN, Texas - The Texas Supreme Court refused to revisit its ruling in a hailstorm coverage dispute that directed a lower court to vacate the part of its discovery order compelling production of management reports and emails and to re-evaluate the issue of sanctions against the insurer, according to its Feb. 17 orders pronounced (In Re National Lloyds Insurance Co., No. 15-0452, Texas Sup.).

New York Federal Magistrate: In Camera Review Of Insurer's Documents Is Necessary
NEW YORK - A New York federal magistrate judge on Feb. 6 found that an in camera review of an insurer's documents requested through discovery by a disability claimant is necessary to determine if the documents are protected under the work product doctrine or if the fiduciary exception to the attorney-client privilege applies (Cherylle McFarlane v. First Unum Life Insurance Co., No. 16-7806, S.D. N.Y., 2017 U.S. Dist. LEXIS 16433).

Judge: Most Of Amtrak's Claims Of Attorney-Client Privilege Should Be Sustained
BROOKLYN, N.Y. - A New York federal judge on Feb. 17 found that most of Amtrak's claims of attorney-client privilege should be sustained with some exceptions, adopting the majority of a special master's report and recommendation in a coverage dispute over environmental contamination (Certain Underwriters at Lloyd's, et al., v. National Railroad Passenger Corp., et al., No. 14-4717, E.D. N.Y., 2017 U.S. Dist. LEXIS 23680).

Cosby Accuser, Ex-DA Argue Relevance Of Criminal Case Filings In Defamation Suit
PHILADELPHIA - In a Feb.27 filing in Pennsylvania federal court, Andrea Constand, who has accused Bill Cosby of sexual assault, opposes a former Pennsylvania district attorney's motion to compel production of documents from her 2005 suit against Cosby, asserting that the documents are irrelevant to her present defamation/false light claim against the former DA (Andrea Constand v. Bruce Castor, No. 2:15-cv-05799, E.D. Pa.).

New Jersey Federal Magistrate Rejects Allstate Discovery Motion As Overly Broad
TRENTON, N.J. - A New Jersey magistrate judge on Feb. 10 ordered that Allstate Life Insurance Co.'s motion to compel discovery from a third party in a breach of contract suit be denied as being overly broad and not proportional to the needs of the case (Allstate Life Insurance Co. v. Jeffrey Stillwell, et al., No. 15-8251, D. N.J., 2017 U.S. Dist. LEXIS 19087).

Judge Denies Objection, Says Magistrate Judge's Discovery Order Was Proper
SALT LAKE CITY - A federal judge in Utah on Feb. 13 denied an insolvent insurer's objection to a magistrate judge's order compelling discovery of certain categories of information sought by a group of the insolvent insurer's former directors and officers (Western Insurance Company v. Dick L. Rottman, et al., No. 13-cv-00436, D. Utah, 2017 U.S. Dist. LEXIS 20709).

Directors, Officers Object To Discovery Order Proposed By Insolvent Insurer
SALT LAKE CITY - A group of former directors and officers of an insolvent insurer told a federal court in Utah on Feb. 15 that a portion of a proposed discovery order should be removed because it could be misconstrued to require production of more than the documents originally defined by the court (Western Insurance Company v. Dick L. Rottman, et al., No. 13-cv-00436, D. Utah).

BU CTE Researcher Objects To NHL Seeking Her Research Material For Lawsuit
MINNEAPOLIS - A researcher at the Boston University Chronic Traumatic Encephalopathy (CTE) Center on March 2 told the federal judge overseeing the National Hockey League (NHL) concussion multidistrict litigation that the league is seeking raw research materials only to discredit her and her work so it can achieve its goals in the lawsuit (In re: National Hockey League Players Concussion Injury Litigation, MDL No. 14-2551, D. Minn.).

Boston University CTE Center Opposes Handing Over Autopsy Reports To NHL
MINNEAPOLIS - The trustees of Boston University on Feb. 6 told the federal judge overseeing the National Hockey League concussion multidistrict litigation that the league has failed to "demonstrate with specificity" why it needs the research and autopsy reports conducted by the Boston University Chronic Traumatic Encephalopathy Center (CTE Center) and that compelling those documents would violate the privacy of the research subjects (In re: National Hockey League Players Concussion Injury Litigation, MDL No. 14-2551, D. Minn.).

California Federal Magistrate Denies Motion To Compel In Pokemon Copyright Case
SAN FRANCISCO - A Canadian cloud-based e-commerce platform will not need to respond to a subpoena sought by The Pokemon Company International Inc. in connection with Pokemon's allegations a retailer committed copyright infringement, a California federal magistrate judge ruled Feb. 22 (The Pokemon Company International Inc. v. Shopify Inc., No. 16-80272, N.D. Calif., 2017 U.S. Dist. LEXIS 24987).

Nationwide Seeks Stay Of Discovery In Remanded Data Breach Class Actions
COLUMBUS, Ohio - In a March 2 motion in Ohio federal court, Nationwide Mutual Insurance Co. requests reconsideration of an earlier ruling declining to stay discovery in a pair of class actions over a 2012 data breach, arguing that the claims under the Fair Credit Reporting Act (FCRA) will likely be dismissed and calling the plaintiffs' discovery requests broad and burdensome (Mohammad S. Galaria, et al. v. Nationwide Mutual Insurance Co., No. 2:13-cv-00118, and Anthony Hancox, et al. v. Nationwide Mutual Insurance Co., No. 2:13-cv-00257, S.D. Ohio).

Federal Judge Stays Discovery In Professional Liability Insurance Coverage Dispute
TULSA, Okla. - A federal judge in Oklahoma on Feb. 21 granted a professional liability insurer's motion to stay discovery pending resolution of its motion for summary judgment in a dispute over coverage for an underlying breach of contract suit brought against the insured by a former business partner (Doug Schwegman, d/b/a Schwegman Insurance and Financial Services v. Continental Casualty Co., No. 16-0730, N.D. Okla., 2017 U.S. Dist. LEXIS 23780).

Chicago Moves To Quash Some Discovery In DPPA Suit Against Newspaper
CHICAGO - The city of Chicago on Feb. 28 asked an Illinois federal court to quash some of the discovery requests served on it by a newspaper alleged to have violated the Drivers Privacy and Protection Act (DPPA), arguing that some of the documents are protected by an earlier court order and the attorney-client privilege (Scott Dahlstrom, et al. v. Sun-Times Media LLC, No. 1:12-cv-00658, N.D. Ill.).

Russian Railcar Firm Seeks Jurisdictional Discovery Over Trade Secret Defendant
SAN JOSE, Calif. - In conjunction with its pending motion for discovery to establish California jurisdiction over a former employee accused of trade secret violations, a Russian railcar company on Jan. 17 filed a proposed order in California federal court, permitting it to subpoena Google Inc. to obtain information about the defendant's Gmail email account (OOO Brunswick Rail Management, et al. v. Richard Sultanov, et al., No. 5:17-cv-00017, N.D. Calif., 2017 U.S. Dist. LEXIS 8374).

New York Justice Orders Production Of Data In Native Format, Metadata
NEW YORK - Production of electronic documents in an asbestos dispute do not satisfy discovery requests where they are not in the requested format and lack metadata, a New York justice held in an opinion posted Feb. 3 (All Craft Fabricators Inc. v. ATC Assoc. Inc.,, No. 156897/13, N.Y. Sup., New York Co.; 2017 N.Y. Misc. LEXIS 323).

Magistrate Judge Largely Limits Discovery Requests In Ford Asbestos Case
BALTIMORE - While Ford Motor Co. must respond to discovery requests in an asbestos action, the plaintiffs' requests are overly broad and the company's responses can be limited to the vehicles and times in question, a federal magistrate judge in Maryland said Feb. 21 (Helen Thomas Fish, et al. v. Air & Liquid Systems Corp., et al., No. 16-496, D. Md., 2017 U.S. Dist. LEXIS 24188).

Request To Reopen Discovery Denied In Pom Wonderful MDL
LOS ANGELES - A California federal judge on Feb. 14 denied a request to reopen discovery, in an effort by plaintiffs to support a renewed motion for class certification, in a multidistrict litigation challenging the marketing of pomegranate juice, finding that the plaintiffs failed to demonstrate diligence (In re: Pom Wonderful LLC Marketing and Sales Practices Litigation, No. 10-2199, C.D. Calif., 2017 U.S. Dist. LEXIS 20854).

Texas High Court: Attorney-Client Privilege Applies Despite Untimeliness
AUSTIN, Texas - A governmental body's failure to comply with certain deadlines in response to Texas Public Information Act (PIA) document requests does not waive the attorney-client privilege in protected documents, a Texas Supreme Court majority ruled Feb. 3, finding that the privilege constituted a "compelling reason" to maintain such documents' confidentiality despite the statute's public disclosure presumption that arises after deadline noncompliance (Ken Paxton, Attorney General of Texas v. City of Dallas, No. 15-0073 and 15-0238, Texas Sup., 2017 Tex. LEXIS 122).

Judge Says Ruling That Document Was Privileged Was Not Clearly Erroneous
SYRACUSE, N.Y. - A federal judge in New York on Jan. 13 denied a reinsurer's challenge to a magistrate judge's ruling, finding that the magistrate judge's finding that a certain document was privileged was not clearly erroneous (Utica Mutual Insurance Company v. Munich Reinsurance America, Inc., No. 12-cv-00196, and Munich Reinsurance America, Inc., v. Utica Mutual Insurance Company, No. 13-cv-00743, N.D. N.Y.).

Company: Residents Should Return Privileged Documents In Tainted Groundwater Case
GREENVILLE, Miss. - The company sued by a group of residents seeking damages for personal injuries and groundwater contamination caused by hexavalent chromium and trichloroethylene (TCE) on Dec. 23 filed a brief in Mississippi federal court contending that the plaintiffs should return privileged documents that were obtained through a bankruptcy asset sale because the company did not forfeit its privileges to them (Joe E. Sledge, et al. v. Meritor Inc., et al., No. 16-CV-053, N.D. Miss.).

Attorneys Waived Privilege Over PowerPoint Presentations, Judge Rules
CHARLESTON, S.C - The contents of two PowerPoint presentations made by attorneys during town hall meetings held to persuade homeowners to join a proposed class action suit against the builders of their homes over alleged construction defects waived any work product protection over the information, a federal judge in South Carolina ruled Jan. 12 in denying the plaintiffs' motion to quash subpoenas (Jacqueline L. Craft, as Trustee of the Jacqueline L. Craft Trust, et al. v. South Carolina Plastering LLC, et al., No. 15-cv-5080-PMD, D. S.C.; 2017 U.S. Dist. LEXIS 4510).

Colorado High Court: Insurer Did Not Prove Documents' Trade Secret Status
DENVER - Finding that an insurer did not meet its burden to establish that claims-handling documents sought via discovery requests in a bad faith lawsuit constituted trade secrets, a Colorado Supreme Court majority on Dec. 5 affirmed a trial court's decision to not issue a broad protective order for the documents (In Re Stephen Rumnock v. Dennis Anschutz, et al., No. 16SA38, Colo. Sup.; 2016 Colo. LEXIS 1228).

Judge Assures Confidentiality Of Material In Asbestos- Related Reinsurance Case
PHILADELPHIA - A federal judge in Pennsylvania in a reinsurance dispute over asbestos-related claims granted on Feb. 2 an insurer's unopposed motion for the issuance of a protective order regarding confidential information (R&Q Reinsurance Company v. St. Paul Fire & Marine Insurance Company, No. 16-cv-01473, E.D. Pa.).

Maryland Magistrate Judge Grants Protective Orders In Franchise Agreement Dispute Over Renewals
BALTIMORE - A Maryland magistrate judge on Jan. 6 granted nine of 10 requests by a clothing store franchisor for a protective order against discovery requests, finding the requests overbroad or off-topic (Jos. A. Bank Clothiers Inc. v. J.A.B.-Columbia Inc., et al., No. 1:15cv3075, D. Md.; 2017 U.S. Dist. LEXIS 2113).

Federal Magistrate Grants Motion To Keep Insurer's Trade Secrets Confidential
OWENSBORO, Ky. - A Kentucky federal magistrate judge on Dec. 14 granted a disability insurer's motion for a protective order of confidentiality, finding that the information it wants to keep confidential qualifies as trade secrets because a competitor could gain an advantage over the insurer if it had access to the information (Paulette Owens v. Liberty Life Assurance Co. of Boston, No. 4:15-cv-00071, W.D. Ky.; 2016 U.S. Dist. LEXIS 172540).

Judge Signs Protective Order Governing Production Of Discovery In Qui Tam Suit
CAMDEN, N.J. - A New Jersey federal magistrate on Dec. 28 found that there is good cause for the issuance of a protective order that would govern the production of discovery by or on behalf of the Centers for Medicare and Medicaid Services (CMS) in all phases of a qui tam lawsuit brought against insurers under the federal and New Jersey false claims acts (United States of America and the State of New Jersey, ex rel. Elizabeth Negron v. Progressive Casualty Insurance Co., et al., No. 14-577, D. N.J.).

Club Owners: Judge Erred In Ordering Production Of Email Distribution List
MIAMI - A Miami nightclub and its affiliates on Dec. 30 filed a brief in Florida federal court arguing that a ruling by a magistrate judge that found that they had to produce an email distribution list of the club's members as part of discovery "implicates" third parties who have "no idea that their privacy rights are at issue" (Jaime Faith Edmonson, et al. v. Velvet Lifestyles LLC, et al., No. 15-24442, S.D. Fla.).

7th Circuit Says It Lacks Jurisdiction Over Appeals Of Discovery Rulings
CHICAGO - A Seventh Circuit U.S. Court of Appeals panel on Jan. 31 denied appeals from a company in a suit brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), finding that it lacked jurisdiction to review three rulings on motions seeking discovery from a nonparty company based in England (P.H. Glatfelter Co. v. Windward Prospects Ltd., Nos. 15-3847, 16-1197, 16-1310, 7th Cir., 2017 U.S. App. LEXIS 1707).

Judge Orders Discovery Into Canadian Companies' Contacts With New Jersey
TRENTON, N.J. - Additional discovery is needed into two Canadian companies' contacts with New Jersey so that a woman can fairly contest motions to dismiss her asbestos action on jurisdictional grounds, a federal judge in New Jersey said Jan. 9 (Estelle Grimes, et al. v. AT&T Corp., et al., No. 15-8466, D. N.J.; 2016 U.S. Dist. LEXIS 181534).

Google Ordered To Produce Foreign-Stored Data Sought By FBI Warrants
PHILADELPHIA - In a Feb. 3 ruling, a Pennsylvania federal magistrate concluded that compelling Google Inc. to comply with warrants requiring production of data stored in foreign-based servers to the Federal Bureau of Investigation "does not constitute an unlawful extraterritorial application of the" Stored Communications Act (SCA) (In re Search Warrant No. 16-960-M-01 to Google, No. 2:16-mj-00960 and In re Search Warrant No. 16-1061-M to Google, No. 2:16-mj-01061, E.D. Pa., 2017 U.S. Dist. LEXIS 15232).

Split 2nd Circuit Declines To Rehear Suit Over Warrant For Foreign-Based Emails
NEW YORK - In a Jan. 24 ruling, the Second Circuit U.S. Court of Appeals denied the U.S. government's motion to rehear en banc a dispute in which a panel held that warrants issued under the Stored Communications Act (SCA) cannot be used to obtain emails stored in servers in other countries (In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp.[Microsoft v. United States], No. 14-2985, 2nd Cir.).

FBI Denies FOIA Violations In Group's Request For Biometrics Program Documents
WASHINGTON, D.C. - In an answer filed Jan. 23 in District of Columbia federal court, the Federal Bureau of Investigation denied a privacy group's allegations that it violated the Freedom of Information Act (FOIA) by not timely providing requested documents about the bureau's biometrics program (Electronic Privacy Information Center v. Federal Bureau of Investigation, No. 1:16-cv-02237, D. D.C.).

FBI Says Withholding Of IPhone Unlocking Details Is Supported By FOIA Exemptions
WASHINGTON, D.C. - In a Jan. 31 motion in District of Columbia federal court, the Federal Bureau of Investigation seeks summary judgment of a suit in which three news organizations allege Freedom of Information Act (FOIA) violations, with the bureau asserting that it withheld certain details related to the unlocking of a terrorist's smart phone out of national security concerns and to protect trade secrets of the vendor that unlocked the device (The Associated Press, et al. v. Federal Bureau of Investigation, No. 1:16-cv-01850, D. D.C.).

Government, Organization Argue Whether Official's Emails Are Private, FOIA-Exempt
WASHINGTON, D.C. - In a Jan. 19 reply brief filed in District of Columbia federal court, the U.S. government argues that the personal email account of the director of the Office of Science and Technology Policy (OSTP) is exempt from production in response to a group's Freedom of Information Act (FOIA) request because the emails contained within it are duplicative of records already in the agency's possession that are subject to the FOIA (Competitive Enterprise Institute v. Office of Science and Technology Policy, No. 1:14-cv-00765, D. D.C.).

U.S. High Court To Decide Circuit Split On EEOC Subpoena Review
WASHINGTON, D.C. - Oral arguments before the U.S. Supreme Court are scheduled for Feb. 21 in the appeal of a pregnancy discrimination suit challenging the Ninth Circuit U.S. Court of Appeals' application of a de novo standard of review to a trial court's determination of relevance of information sought by an Equal Employment Opportunity Commission subpoena (McLane Company, Inc. v. Equal Employment Opportunity Commission, No. 15-1248, U.S. Sup.).

Magistrate: Trust Claim Information Discoverable, But Not Settlements
NEW ORLEANS - Claim information submitted to asbestos trusts is discoverable in an asbestos personal injury action, but information about past settlements with asbestos trusts or defendants is not, a Louisiana federal magistrate judge ruled Jan. 23 (Jesse Frank Sheppard v. Liberty Mutual Insurance Company, et al., No. 16-2401, E.D. La.; 2017 U.S. Dist. LEXIS 8595).

Professor, University: Glyphosate Documents Sought By Monsanto Are Confidential
SAN FRANCISCO - A professor and the university where she teaches filed a brief in California federal court on Jan. 12 contending that documents that were subpoenaed related to research on injuries allegedly caused by glyphosate exposure are property of the World Health Organization (WHO) and neither the professor nor the university are permitted to disclose them (In Re: Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

Florida Appeals Court Orders Foreign Adverse Event Reports To Be Redacted
WEST PALM BEACH, Fla. - A Florida appeals court on Jan. 25 quashed a trial court order requiring Howmedica Osteonics Corp. to produce unredacted foreign adverse event reports about certain of its recalled hip prostheses (Howmedica Osteonics Corp. v. Joyce Trowbridge, et al., No. 4D16-2374, Fla. App., 4th Dist.; 2017 Fla. App. LEXIS 764).

Magistrate Judge Grants In Part Motion To Quash Subpoenas In Trade Secret Case
KNOXVILLE, Tenn. - A Tennessee federal magistrate judge on Dec. 13 granted in part a motion to quash the subpoenas duces tecum issued to Prochimie International Inc. and its officers in a misappropriation of trade secrets case, finding the request for documents overbroad (In re: Subpoena Duces Tecum of Prochimie International Inc., et al. v. Process Engineering Associates LLC, No. 3:16-cv-311, E.D. Tenn.; 2016 U.S. Dist. LEXIS 171813).

Some Phone Record Info Deemed Discoverable In FLSA Overtime Class Action
LOS CRUCES, N.M. - In a Jan. 24 order, a New Mexico federal magistrate judge found that limited non-private information about employees' cell phones and devices was discoverable in their overtime class action against their former employer brought under the Fair Labor Standards Act (FLSA), leading the magistrate to grant in part the defendant's motion to compel responses to two interrogatories (Jarrod B. Foster v. Nova Hardbanding LLC, et al., No. 2:15-cv-01047, D. N.M.; 2017 U.S. Dist. LEXIS 9835).

NHL Asks Federal Judge To Compel CTE Documents, Autopsy Report Of Former Player
MINNEAPOLIS - The National Hockey League (NHL) on Jan. 19 asked the federal judge overseeing the NHL concussion multidistrict litigation to compel the Boston University CTE Center to release documents relating to the chronic traumatic encephalopathy (CTE) research it conducts and the autopsy information of a former player whose estate is a lead plaintiff in the MDL (In re: National Hockey League Players Concussion Injury Litigation, MDL No. 14-2551, D. Minn.).

Judge Grants Stein Mart's Motion To Compel On 'Compare At' Claims
RIVERSIDE, Calif. - A California federal judge on Jan. 10 granted a retailer's motion to compel supplemental responses to certain discovery requests from a purchaser who asserts claims for violation of California's unfair competition law (UCL), false advertising and other claims related to its pricing (Marilyn Sperling v. Stein Mart Inc., et al., No. 15-1411, C.D. Calif.; 2017 U.S. Dist. LEXIS U.S. Dist. LEXIS 3668).

Judge Partly Grants Discovery Motion In Coverage Suit Over 'Sham' Investments
SEATTLE - A Washington federal judge on Jan. 25 granted in part an investment adviser's motion to compel discovery against a professional liability insurer in a coverage dispute arising from claims that the investment adviser misleadingly convinced a former client to invest in "sham" companies (Daeil Ro v. Everest Indemnity Insurance Co., et al, No. 16-0664, W.D. Wash.; 2017 U.S. Dist. LEXIS 11106).

Porn Firm Tells 6th Circuit Downloader Failed To Show Prejudice In Dismissal
CINCINNATI - In a Jan. 13 appellee brief filed in the Sixth Circuit U.S. Court of Appeals, an adult entertainment company says that its abandoned infringement claim against an accused file sharer was properly dismissed with prejudice because of the defendant's dilatory discovery conduct and to serve judicial economy (Malibu Media LLC v. David Ricupero, No. 16-3628, 6th Cir.).

Directors And Officers Argue That Reinsurance Information Is Discoverable
SALT LAKE CITY - A group of an insolvent insurer's former directors and officers told a federal court in Utah on Jan. 27 that discovery of reinsurance information is relevant to their defense against the claims brought by the insolvent insurer (Western Insurance Company v. Dick L. Rottman, et al., No. 13-cv-00436, D. Utah).

Magistrate Judge: Migrant Tobacco Workers To Be Deposed In Mexico
LOUISVILLE, Ky. - A federal magistrate judge in Kentucky on Feb. 3 found that the owners of a tobacco farm who were sued for allegedly violating federal work visa laws will not face an undue hardship by having to depose a group of migrant workers in Mexico, denying the owners' motion for a protective order that would prohibit the depositions from taking place in Mexico (Martin Rico Murillo, et al. v. Tracy Dillard, et al., No. 1:15-CV-00069, W.D. Ky., 2017 U.S. Dist. LEXIS 15391).

Judge Orders New Deposition, Imposes Fees And Costs In Asbestos Witness Dispute
NEW ORLEANS - Producing an unprepared corporate witness who failed to answer almost 100 noticed matters despite months of preparation time was akin to offering no witness at all, a federal judge in Louisiana held Jan. 31 in ordering a new deposition and imposing costs and fees (Martha Denmon Storer, et al. v. Crown Cork & Seal Co., et al., No. 14-2488, W.D. La., 2017 U.S. Dist. LEXIS 13349).

Federal Magistrate Judge Says Sanctions Against Insurer Are Not Warranted
HATTIESBURG, Miss. - A Mississippi federal magistrate judge on Feb. 2 denied a motion for sanctions filed by insureds seeking coverage for a gasoline leak because despite the insureds' contentions, the insureds were able to complete a deposition and obtained sufficient responsive answers from the insurer during the deposition (Grain Dealers Mutual Insurance Co. v. Tammy Cooley, et al., No. 16-39, S.D. Miss., 2017 U.S. Dist. LEXIS 14615).

Ohio Federal Magistrate Awards Attorney Fees For Delayed Production Of Discovery
COLUMBUS, Ohio - An Ohio federal magistrate judge on Dec. 27 ruled that defendant brewing companies in a franchise agreement dispute with a beer distributor were entitled to an award of attorney fees and costs because, despite an expedited discovery schedule, the defendants' production was delayed (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.; 2016 U.S. Dist. LEXIS 178656).

Connecticut Federal Magistrate Judge: Review Of Memo Is Needed Before Production
NEW HAVEN, Conn. - A Connecticut federal magistrate judge on Jan. 27 determined that an in camera review of a memo produced by an insurer involved in an asbestos coverage dispute must be conducted to determine if the memo contains any privileged information (ITT Corp. and Goulds Pump Inc. v. Travelers Casualty & Surety Co., No. 12-38, D. Conn.).

Breach Of Contract, Bad Faith Suits Consolidated For Discovery Purposes
LOS ANGELES - A federal judge in California on Jan. 13 granted an insured's motion to consolidate its insurance breach of contract and bad faith lawsuit with a related action for discovery purposes, ruling that consolidation was appropriate because no parties opposed (Aspen Specialty Insurance Co. v. Riddell Inc., et al, No. 15-6324; and Bell Sports Inc. v. Aspen Specialty Insurance Co., et al., No. 16-8409, C.D. Calif.; 2017 U.S. Dist. LEXIS 7655).