Preview: LexisNexis® Mealey's™ Discovery Legal News
LexisNexis® Mealey's™ Discovery Legal News
Headline Discovery Legal News from LexisNexis®
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 Amazon.com 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.).
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).
Twitter Must Identify User Who Sent Seizure- Inducing Tweet To Writer
DALLAS - A journalist who suffered an epileptic seizure after receiving a tweet from an anonymous poster containing a strobe image was granted leave by a Texas judge on Dec. 19 to depose a representative of Twitter Inc. to obtain identifying information about the Doe poster for the purpose of pursuing legal action against him or her (In re: Petition of Kurt Eichenwald Requesting Pre-suit Deposition under Rule 202, No. DC-16-16077, Texas Dist., Dallas Co.).
Magistrate Denies Data Breach Plaintiffs' Motion To Depose Anthem CEO
SAN JOSE, Calif. - A California federal magistrate judge on Dec. 8 concluded that a requested deposition of the chief executive officer of Anthem Inc. was unlikely to uncover new information and had the potential for abuse, leading the magistrate to quash the deposition sought by the plaintiffs in a putative class action over Anthem's 2015 data breach (In Re: Anthem Inc., Customer Data Security Breach Litigation, No. 5:15-md-02617, N.D. Calif.).
Magistrate Judge Says Nonparty Doctor Can Be Deposed, Produce Records
NEW YORK - A nonparty doctor who worked for a chiropractic clinic accused of submitting fraudulent bills to Allstate Insurance Co. would not be overburdened by being deposed and producing records in response to a discovery request from the insurer, a federal magistrate judge in New York ruled Dec. 6 in denying the clinic's motion to quash a subpoena (Allstate Insurance Company v. Art of Healing Medicine P.C., et al., Nos. 14-CV-6756, 15-CV-3639, E.D. N.Y.; 2016 U.S. Dist. LEXIS 168554).
Backpage.com CEO Maintains 1st Amendment Argument In Appeal Over Senate Subpoena
WASHINGTON, D.C. - In his Jan. 9 reply brief in the District of Columbia U.S. Circuit Court of Appeals, Backpage.com LLC Chief Executive Officer Carl Ferrer defends his objections under the First Amendment to the U.S. Constitution to a U.S. Senate subpoena that he says inappropriately seeks information and documents related to Backpage's protected editorial judgment and choices as an online intermediary (Carl Ferrer v. Senate Permanent Subcommittee on Investigations, No. 16-5232 and 16-5274, D.C. Cir.)
Professor, University: Health Agencies Ordered Them To Withhold Documents
SAN FRANCISCO - A professor and the university where she teaches filed a brief in California federal court on Dec. 6, contending that two international health agencies instructed them to withhold documents that were the subject of a subpoena filed by Monsanto Co. in litigation brought by a man who contends that he has been injured by exposure to the herbicide Roundup, which the company manufactures (In Re: Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).
4th Circuit Seeks Guidance On South Carolina Trade Secret Privilege Rule
RICHMOND, Va. - The Fourth Circuit U.S. Court of Appeals asked South Carolina's Supreme Court Nov. 29 to decide whether the state recognizes an evidentiary privilege for trade secrets, saying that "no directly controlling South Carolina authority answers this question" (Theodore G. Hartsock, Jr. v. Goodyear Dunlop Tires North America Ltd., et al., No. 16-1172, 4th Cir.; 2016 U.S. App. LEXIS 21326).
Federal Judge: State Court Should Decide If Presentation Is Privileged
CHARLESTON, S.C. - A federal judge in South Carolina on Dec. 28 denied a woman's motion to quash a subpoena seeking production of a Power Point presentation prepared by attorneys for potential class members of a construction defects lawsuit, finding that a state court judge presiding over a similar action should first decide if the presentation is protected by the work product doctrine (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.; 2016 U.S. Dist. LEXIS 178679).
D.C. Federal Judge Orders Document Production In Lawsuit Against PBGC
WASHINGTON, D.C. - A District of Columbia federal judge on Dec. 20 ordered the U.S. Treasury Department to produce more than 100 documents it has withheld in a civil action against the Pension Benefit Guaranty Corp. (PBGC), saying that Treasury has "miserably failed" to explain its deliberative process privilege claims (U.S. Department of the Treasury v. Pension Benefit Guaranty Corp., v. Dennis Black, et al., No. 12-mc-100, D. D.C.; 2016 U.S. Dist. LEXIS 175656).
Federal Magistrate Determines Memos, Emails Are Protected Under Work Product Doctrine
CHICAGO - An Illinois federal magistrate judge on Dec. 13 denied an insurer's motion to compel the production of unredacted documents and emails after determining that the documents and emails are protected under the work product doctrine because they were prepared in anticipation of litigation regarding coverage for the contamination of the insured's blood products (Baxter International Inc., v. AXA Versicherung, No. 11-cv-09131, N.D. Ill.; 2016 U.S. Dist. LEXIS 172234).
Texas Appeals Panel Grants Partial Mandamus Relief For Document Production
DALLAS - A Texas appeals panel on Nov. 18 partially granted a petition for writ of mandamus in a breach of contract and theft of trade secrets action between two competing physician staffing businesses, finding that Staff Care Inc. was entitled to conditional mandamus relief directing the defendants to produce client match, placement and fee information because it was relevant to liability and likely to lead to the discovery of admissible evidence (In re Staff Care Inc., No. 05-16-00619-CV, Texas App., 5th Dist.; 2016 Tex. App. LEXIS 12426).
Newspaper Asks High Court To Hear Case On Mug Shot Privacy In FOIA Dispute
WASHINGTON, D.C. - In the wake of a split Sixth Circuit U.S. Court of Appeals ruling that overturned controlling case law pertaining to the privacy of criminal booking photos, a newspaper operator on Nov. 22 filed a petition for a writ of certiorari, asking the U.S Supreme to decide whether the photos are susceptible to production requests under the Freedom of Information Act (FOIA) (Detroit Free Press Inc. v. U.S. Department of Justice, No. 16-706, U.S. Sup.).
Email Preservation Ordered In Russian Railcar Firm's Trade Secrets Lawsuit
SAN JOSE, Calif. - Finding that a Russian railcar company had demonstrated a likelihood of success in its claims against two former employees under the Defend Trade Secrets Act (DTSA), a California federal judge on Jan. 6 ordered the hosts of the employees' email accounts to preserve all electronic data associated with those accounts (OOO Brunswick Rail Management, et al. v. Richard Sultanov, et al., No. 5:17-cv-00017, N.D. Calif.; 2017 U.S. Dist. LEXIS 2343).
Withholding Of Surveillance In Injury Case Deemed Not Harmless, But Not Willful
SCRANTON, Pa. - A Pennsylvania federal judge on Jan. 3 concluded that the operator of a Poconos resort had no justification for not timely submitting video surveillance discovery in a personal injury suit, but because he found the failure to have not been in bad faith, the judge stopped short of granting the plaintiffs' motion to strike use of the surveillance materials at trial (Brian Perez, et al. v. Great Wolf Lodge of the Poconos LLC, et al., No. 3:12-cv-01322, M.D. Pa.; 2017 U.S. Dist. LEXIS 308)
Judge: Asbestos Document Request Overly Broad, But Some Production Warranted
PHILADELPHIA - A company's failure to comply with a state court motion to compel does not warrant sanctions because the request is overly broad, but going forward, the company must produce documents relevant to product identification testimony in an asbestos case, a federal magistrate judge held Dec. 6 (William Ney, et al. v. Owens-Illinois Inc., et al., No. 16-2408, E.D. Pa.; 2016 U.S. Dist. LEXIS 169371).
Federal Magistrate Judge Says Insurer Must Produce Information On Other Claims
HATTIESBURG, Miss. - A Mississippi federal judge on Jan. 6 partially granted a motion to compel filed by insureds seeking coverage for a gasoline leak after determining that the insurer is required to produce information related to the insurer's claims handling of other gasoline leak claims (Grain Dealers Mutual Insurance Co. v. Tammy Cooley, et al., No. 16-39, S.D. Miss.; 2017 U.S. Dist. LEXIS 2157).
Federal Judge Partially Grants Discovery Related To Reverse Mortgage
NEW HAVEN, Conn. - A Connecticut federal judge on Dec. 30 partially granted a property owner's request for production of documents in relation to his reverse mortgage but denied the motion as to his request regarding certain policies of the lender (Vincent Bartold v. Wells Fargo Bank, N.A., No. 14-cv-00865, D. Conn.; 2016 U.S. Dist. LEXIS 180216).
Magistrate Judge Instructs Insurer, Reinsurer About Allowed Discovery
SYRACUSE, N.Y. - A federal magistrate judge in New York on Dec. 8 granted in part an insurer's and a reinsurer's motions to compel discovery information from each other regarding alleged obligations under certain reinsurance agreements (Utica Mutual Insurance Company v. Century Indemnity Company, No. 13-cv-00995, N.D. N.Y.).
Massachusetts Federal Judge Rejects DTSA Defense, Issues Order To Recover Documents
WORCESTER, Mass. - A Massachusetts federal judge on Dec. 6 issued a preliminary injunction ordering a former employee of a financial protection benefits provider to return and destroy all copies of documents he was seen taking from his workplace, rejecting the employee's contention that his actions are exempt under the Defend Trade Secrets Act of 2016 (DTSA) (Unum Group v. Timothy P. Loftus, No. 4:16-cv-40154, D. Mass.; 2016 U.S. Dist. LEXIS 168713).
Judge OKs Insurer/Reinsurer Stipulation On Handling Of Confidential Materials
BOSTON - A federal judge in Massachusetts on Dec. 28 approved a stipulation between an insurer and reinsurer regarding confidential materials and cautioned that the burden of proving the need for confidentiality falls to the impoundment-seeking party (Lamorak Insurance Company v. Everest Reinsurance Co., No. 15-cv-13425, D. Mass.).
Reinsurer Says It Does Not Have Some Of The Discovery Information Requested
SYRACUSE, N.Y. - A reinsurer told a federal court in New York on Dec. 30 that an insurer's request regarding testimony from its corporate designee is improper because among other reasons, the reinsurer says, it does not have the information the insurer seeks (Utica Mutual Insurance Company v. R&Q Reinsurance Company, No. 15-cv-00270, N.D. N.Y.).