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Preview: LexisNexis® Mealey's™ Discovery Legal News

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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.).



Supreme Court Finds No Dismissal Mandate For False Claims Act Seal Violations
WASHINGTON, D.C. - In a unanimous ruling, the U.S. Supreme Court on Dec. 6 held that the False Claims Act (FCA) "does not enact so harsh a rule" as mandating dismissal of a relator's lawsuit under the act for a violation of the statute's requirement that the relator's complaint remain sealed, affirming a ruling of the Fifth Circuit U.S. Court of Appeals (State Farm Fire & Casualty Co. v. United States, ex rel. Cori Rigsby, et al., No. 15-513, U.S. Sup.; 2016 U.S. LEXIS 7420).



Lawyer In File-Sharing Case Again Sanctioned For Discovery Violations
EAST ST. LOUIS, Ill. - After an appeals panel partly dismissed sanctions against an attorney as not properly reflecting the harm incurred by a copyright defendant due to the attorney's discovery misconduct and misrepresentations, an Illinois federal judge on Nov. 23 deemed the attorney's actions to be civil contempt and sanctioned him in amount equivalent to the defendant's remaining costs related to the misconduct (Lightspeed Media Corp. v. Anthony Smith, et al., No. 3:12-cv-00889, S.D. Ill.; 2016 U.S. Dist. LEXIS 162981).



Tribe Denies Sanctionable Discovery Conduct By Counsel In ERISA Suit
DETROIT - A Native American tribe filed a brief on Nov. 29 asking a Michigan federal court to deny a motion for sanctions brought against the tribe's counsel by a health insurance provider, arguing that the law firm's contacting of subpoenaed third parties did not violate federal procedure and was not a tactic to delay proceedings in a lawsuit brought under the Employee Retirement Income Security Act (ERISA) (Little River Band of Ottawa Indians, et al. v. Blue Cross Blue Shield of Michigan, No. 2:15-cv-13708, E.D. Mich.).



Panel: Lower Court Abused Discretion By Dismissing Claims Over Discovery Issues
AUSTIN, Texas - The Third District Texas Court of Appeals on Oct. 13 reversed and remanded a lower court decision dismissing the claims of a woman who was involved in an auto accident against a woman insured by an insolvent insurer, finding that the lower court had abused its discretion by dismissing the claims based on a discovery noncompliance (Crystal Bingham Hernandez v. Tiffany Polley, No. 03-15-00384-CV, Texas App., 3rd Dist.; 2016 Tex. App. LEXIS 11116).



Supreme Court Declines To Hear Case On Good Faith Exception To Exclusionary Rule
WASHINGTON, D.C. - In its Dec. 5 order list, the U.S. Supreme Court denied certiorari for a case in which a man convicted of tax evasion, which was based on evidence obtained from a mirror image copy of his computer hard drives, had asked the court to consider whether the good-faith exception to the exclusionary rule applied to evidence obtained via a search warrant issued based on a predicate violation of the Fourth Amendment to the U.S. Constitution (Stavros M. Ganias v. United States of America, No. 16-263, U.S. Sup.).



DePuy Can't Use Video Depositions Only In 3rd Pinnacle Hip Bellwether
DALLAS - DePuy Orthopaedics Inc. will have to find another way to present testimony of five experts in an ongoing Pinnacle hip multidistrict litigation bellwether trial after the presiding judge on Nov. 17 sustained a plaintiffs' objection to having testimony entered by video depositions (In Re: DePuy Orthopaedics, Inc. Pinnacle Hip Implant Products Liability Litigation, MDL Docket No. 2244, No. 11-md-2244, Rosa Metzler, et al. v. DePuy Orthopaedics, Inc., et al., No. 12-2066, Michael Weiser v. DePuy Orthopaedics, Inc., et al., No. 13-3631, Judith Rodriguez v. DePuy Orthopaedics, Inc., et al., No. 13-3938, Linda Standerfer v. DePuy Orthopaedics, Inc., et al., No. 14-1730, Kathleen Davis, et al. v. DePuy Orthopaedics, Inc., et al., No. 15-1767, Marvin Andrews, et al. v. DePuy Orthopaedics, Inc., et al., No. 15-3484,N.D. Texas, Dallas Div.).



Reinsurer Says It May Need To Depose 20 Current And Former Insurance Employees
SYRACUSE, N.Y. - A reinsurer asked a federal court in New York on Nov. 28 to intervene in a number of discovery disputes with an insurer, notably asking that the court allow it to depose up to 20 current and former employees and agents of the insurer (Utica Mutual Insurance Company v. R&Q Reinsurance Company, No. 15-cv-00270, N.D. N.Y.).



Backpage.com CEO Tells D.C. Circuit That Senate Subpoena Chilled Free Speech
WASHINGTON, D.C. - In a Nov. 16 brief appealing a trial court order compelling his compliance with a U.S. Senate subcommittee subpoena seeking information regarding its adult classifieds section, Backpage.com LLC Chief Executive Officer Carl Ferrer tells the District of Columbia U.S. Circuit Court of Appeals that the subpoena violates the First Amendment to the U.S. Constitution and that the trial court incorrectly deemed his common-law privileges waived (Carl Ferrer v. Senate Permanent Subcommittee on Investigations, No. 16-5232 and 16-5274, D.C. Cir.).



Magistrate Judge Allows Construction-Era Discovery; Bid To Defeat Removal Fails
NEW ORLEANS - A man suffering from asbestos-related cancer may inquire into whether asbestos was used in a facility's construction years before his work there but may not amend his complaint to drop claims implicating the Outer Continental Shelf Act (OCSLA), a Louisiana federal judge and magistrate judge held in separate opinions filed Oct. 26 and Oct. 28 (Jesse Frank Sheppard v. Liberty Mutual Insurance Co., et al., No. 16-2401, E.D. La.).



Federal Circuit Denies Mandamus In Discovery Dispute Over Movie Technology Patents
WASHINGTON, D.C. - Finding that the counterclaimant in a dispute over the ownership of certain motion picture technology "fail[ed] to carry the high burden . . . to overturn [a] district court's discovery determination," a Federal Circuit U.S. Court of Appeals panel on Nov. 17 denied the firm's motion for a writ of mandamus for relief from an order compelling production of purportedly privileged documents (In re: Rearden LLC, et al., No. 16-125, Fed. Cir.; 2016 U.S. App. LEXIS 20637).



Freight Company Ordered To Produce Some Documents In Trade Secrets Suit
KANSAS CITY, Kan. - A shipping and logistics firm must provide certain documents in response to discovery requests from a rival company, a Kansas federal magistrate judge ruled Nov. 18, granting in part a motion to compel and finding some of the documents relevant to the movant's trade secrets misappropriation lawsuit against a former employee (XPO Logistics Freight Inc. v. YRC Inc., No. 2:16-mc-00220, D. Kan.; 2016 U.S. Dist. LEXIS 160491).



Judge Adopts Report Ahead Of Trial On Damages For Misappropriation Of Secrets
DETROIT - A Michigan federal judge on Nov. 14 adopted a special master's recommendations in preparation for a trial on damages owed for a company's misappropriation of three technical trade secrets from another company, agreeing that a summary judgment finding that the trade secrets had been removed from the offending software should stand (MSC Software Corporation v. Altair Engineering, Inc., No. 07-12807, E.D. Mich.; 2016 U.S. Dist. LEXIS 156856).



Policyholder Is Entitled To Limited Number Of Underwriting Files
BROOKLYN, N.Y. - A New York federal magistrate judge on Nov. 30 ruled that an insured is entitled to underwriting and claims files for a limited number of its London Market Insurers to determine if nonduplicative documents exists among the policies issued by the London Market Insurers to the insured (Certain Underwriters at Lloyd's, et al., v. National Railroad Passenger Corp., et al., No. 14-4717, E.D. N.Y.; 2016 U.S. Dist. LEXIS 165967).



DuPont Says It Should Not Be Forced To Disclose Documents In C8 Injury Litigation
COLUMBUS, Ohio - E.I. du Pont de Nemours and Co. on Nov. 21 filed a brief in the perfluorooctanoic acid (known as C8) injury multidistrict litigation, arguing that the MDL court should deny the plaintiffs' motion to compel the production of underlying data the company used to create witness summaries for a cancer registry used in the first bellwether trial (In re E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).



Fungal Meningitis MDL Documents Not Available To Criminal Defendant
BOSTON - A criminal defendant in the New England Compounding Center (NECC) fungal meningitis outbreak cannot access discovery material from the personal injury multidistrict litigation, but a co-defendant can share materials he got while he was part of the MDL, a Massachusetts federal judge ruled Nov. 17 (In Re: New England Compounding Pharmacy, Inc. Products Liability Litigation, MDL Docket No. 2419, No. 13-md-2419, D. Mass.).



4th Circuit Finds Judge Erred In Denying Center's Discovery Request
RICHMOND, Va. - A federal judge in Maryland erred when denying a medical center's request for discovery and awarding summary judgment to a builder accused of concealing construction defects, a Fourth Circuit U.S. Court of Appeals panel ruled Nov. 23, finding that the requested discovery could have shown that the builder intentionally withheld information (Civista Health, Inc., et al. v. Gilbane Building Company, et al., No. 15-1975, 4th Cir.; 2016 U.S. App. LEXIS 21077).



Illinois Federal Judge Says Discovery Needed Before Duty To Defend Can Be Decided
CHICAGO - An Illinois federal judge on Nov. 23 granted an insurer's motion seeking discovery in an asbestos coverage dispute after finding that the effect of an underlying settlement agreement on the insurer's duty to defend must first be determined before a decision can be made on the insurer's duty to defend the insured against a number of other underlying asbestos suits (The Hillshire Brands Co. v. Travelers Casualty and Surety Co., No. 15-06859, N.D. Ill.; 2016 U.S. Dist. LEXIS 162386).



Claimant Should Not Be Permitted To Conduct Discovery, Plan Argues
INDIANAPOLIS - A disability claimant should not be permitted to conduct discovery to determine if a plan operated under a conflict of interest because the claimant failed to prove that the discovery sought is necessary, the plan argues in a Nov. 3 response brief filed in Indiana federal court (Donald Fessenden v. Reliance Standard Life Insurance Co., et al., No. 15-370, N.D. Ind.).



Viacom Seeks Judgment On Remanded Intrusion Claim Over Nickelodeon Websites
NEWARK, N.J. - In a Nov. 22 reply brief in New Jersey federal court, Viacom Inc. argues that it is entitled to summary judgment on the sole remaining intrusion upon seclusion claim in a remanded putative class action over purported collection of personally identifiable information (PII) from minors because the evidence clearly shows that it did not collect any "real-world identifying details" about users of its Nickelodeon websites (In Re: Nickelodeon Consumer Privacy Litigation, No. 2:12-cv-07829, D. N.J.).



New York Justice Denies Discovery Attempts In Asbestos-Talc Case
NEW YORK - A couple's evidence requests in an asbestos-talc case seek duplicate production or evidence more appropriately produced in discovery, a New York justice held in an opinion posted Nov. 4 (Keri LoGiudice and Joseph LoGiudice v. American Talc Co., et al., No. 190253/2014, N.Y. Sup., New York Co.).



Plaintiffs Oppose Discovery Protective Order In Facebook Biometrics Suit
SAN FRANCISCO - In a Nov. 28 letter in California federal court, putative class plaintiffs alleging violations of Illinois' Biometric Information Privacy Act (BIPA) by Facebook Inc. argue that a protective order sought by the social network is inappropriate because the discovery items sought are relevant to their claims and to establishing Facebook's knowing violation of the statute (In re Facebook Biometric Information Privacy Litigation, No. 3:15-cv-03747, N.D. Calif.).



Privacy Group Sues FBI, Seeking Files On Biometric Program Under FOIA
WASHINGTON, D.C. - In a Nov. 10 complaint in District of Columbia federal court, Electronic Privacy Information Center (EPIC) alleges violation of the Freedom of Information Act (FOIA) by the Federal Bureau of Investigation, which it says has not produced requested records regarding the bureau's biometric collection program (Electronic Privacy Information Center v. Federal Bureau of Investigation, No. 1:16-cv-02237, D. D.C.).



FOIA Lawsuit Against Corps Of Engineers Transferred To D.C.
SAN FRANCISCO - A California federal judge on Nov. 22 transferred a Freedom of Information Act (FOIA) lawsuit by Friends of the River against the U.S. Army Corps of Engineers to the U.S. District Court for the District of Columbia (Friends of the River v. United States Army Corps of Engineers, et al., No. 16-5052, N.D. Calif.; 2016 U.S. Dist. LEXIS 162149).



U.K. Investigation Material About Paxil Expert Excluded From Suicide Trial
CHICAGO - Evidence about a United Kingdom investigation into plaintiff antidepressant expert witness Dr. David Healy will be excluded from a Jan. 17 suicide trial after an Illinois federal judge on Nov. 21 said the investigation resulted in no action against Healy and is not relevant to his testimony or to the case (Wendy Dolin, et al. v. SmithKline Beecham Corporation, et al., No. 12-6403, N.D. Ill., Eastern Div.).



Judge: Honeywell, Ford Can Use Asbestos Claimants' Data From 9 Bankruptcies
WILMINGTON, Del. - Honeywell International Inc. and Ford Motor Co. can access asbestos claimants' data in nine Chapter 11 cases, but only to investigate fraud in the claims process, and the information cannot be used for lobbying efforts, a Delaware federal bankruptcy judge held Nov. 8 (In re W.R. Grace & Co., et al., No. 01-01139; In re Owens Corning, No. 00-3837; In re Armstrong World Industries, Inc., No. 00-4471; In re USG Corp., No. 01-2094; In re US Minerals Products Company, No. 01-2471; In re Kaiser Aluminum Corp., No. 02-10429; In re ACandS, Inc., No. 02-12687; In re Combustion Engineering, Inc., No. 03-10495; In re The Flintkote Company, No. 04-11300, D. Del. Bkcy.).