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Preview: LexisNexis® Mealey's™ Discovery Legal News

LexisNexis® Mealey's™ Discovery Legal News

Headline Discovery Legal News from LexisNexis®


Supreme Court Vacates DACA Suit Discovery Order, Remands For Further Proceedings
WASHINGTON, D.C. - In a Dec. 20 per curiam opinion, the U.S. Supreme Court reversed a Ninth Circuit U.S. Court of Appeals ruling that upheld an order compelling the U.S. government to complete the administrative record in a lawsuit over the repeal of the Deferred Action for Childhood Arrivals (DACA) program, with the high court remanding the matter for resolution of whether the case is statutorily barred and whether the discovery order is overly broad (In re United States, et al., No. 17-801, U.S. Sup., 2017 U.S. LEXIS 7504).

Appeals Court Allows PDF Versions Of Spreadsheets In Attorney Fees Dispute
LAKE CHARLES, La. - An oil company that was ordered to remediate a property owned by a school board cannot have access to native format Excel spreadsheets the school board submitted in support of its request for attorney fees, a Louisiana appeals panel ruled Dec. 20, holding that while it is burdensome for the company to convert the files for searching, it is not clear how it would use the metadata to defend against the school board's request (State of Louisiana, et al. v. Louisiana Gas & Exploration Co., et al., No. 17-755, La. App., 3rd Cir., 2017 La. App. LEXIS 2381).

Panel: Law Firm's Possession Of Privileged Memo Did Not Merit Disqualification
LOS ANGELES - Although a defendant's law firm did not comply with its ethical duty to notify the plaintiff upon its receipt of privileged materials, a California appeals panel on Jan. 4 found that a trial court referee did not err in declining to disqualify the firm because the plaintiff was not greatly damaged by the material's disclosure (1100 Wilshire Property Owners Association v. 1100 Wilshire Commercial LLC, No. B281127, Calif. App., 2nd Dist., 2018 Cal. App. Unpub. LEXIS 100).

D.C. Circuit Reverses On Adequacy Of FBI's Search In Response To AP's FOIA Request
WASHINGTON, D.C. - Concluding "that material factual questions remain" as to whether the Federal Bureau of Investigation conducted an adequate search for records responsive to a Freedom of Information Act (FOIA) by the Associated Press (AP) related to the bureau's use of bogus news headlines to track down criminals, a District of Columbia Circuit U.S. Court of Appeals panel on Dec. 15 reversed a trial court's judgment in favor of the FBI and the U.S. Department of Justice (DOJ) (The Reporters Committee for Freedom of the Press, et al. v. Federal Bureau of Investigation, et al., No. 17-5042, D.C. Cir., 2017 U.S. App. LEXIS 25333).

Agency's Records Shielded By Deliberative Process Privilege, Panel Rules
SACRAMENTO, Calif. - A state labor agency's records related to the drafting of legislation, including the identities of individuals consulted during drafting, are protected from disclosure under the California Public Records Act (PRA), a California appeals panel ruled Jan. 8, deeming such information exempted under the deliberative process privilege and the work product doctrine (Labor and Workplace Development Agency v. Fowler Packing Company Inc., et al., No. C083180, Calif. App., 3rd Dist., 2018 Cal. App. LEXIS 15).

Judge Gives Group Limited Access To EPA Documents About PCB Contamination
WASHINGTON, D.C. - A nonprofit group on Dec. 11 was given full access to four U.S. Environmental Protection Agency documents and limited information in two agency documents regarding suspected polychlorinated biphenyl (PCB) contamination at the Santa Monica Malibu Unified School District (SMMUSD) by a federal judge in the District of Columbia who found that the records did not contain information that was subject to the deliberative process privilege (Public Employees for Environmental Responsibility v. U.S. Environmental Protection Agency, No. 14-2056, D. D.C., 2017 U.S. Dist. LEXIS 203068).

DOD Seeks Dismissal Of Remanded FOIA Suit Over Subcontractor Plan
SAN FRANCISCO - In a Jan. 4 brief supporting its summary judgment motion, the U.S. Department of Defense (DOD) tells a California federal court that the remaining redacted portions of a subcontracting plan at the heart of a Freedom of Information Act (FOIA) dispute are exempt from disclosure under the statute (American Small Business League v. U.S. Department of Defense, et al., No. 3:14-cv-02166, N.D. Calif.).

Government To High Court: SCA Warrant Required Disclosure Of Foreign-Stored Data
WASHINGTON, D.C. - In a Dec. 6 petition for certiorari, the U.S. government argues that a warrant issued under the Stored Communications Act (SCA) obligated Microsoft provide a user's email data that it happened to store abroad, asking the U.S. Supreme Court to overturn the Second Circuit U.S. Court of Appeals' finding that the presumption against extraterritoriality barred such foreign application of the statute (United States v. Microsoft Corp., No. 17-2, U.S. Sup.).

6th Circuit Remands Refusal To Unmask Blogger In Copyright Case
CINCINNATI - In what it deemed an issue of first impression, a divided Sixth Circuit U.S. Court of Appeals on Nov. 28 held that a general presumption in favor of unmasking anonymous defendants exists when a judgment has been entered in favor of a plaintiff (Signature Management Team LLC v. John Doe, No. 16-2188, 6th Cir., 2017 U.S. App. LEXIS 23974).

Adult Film Firm May Subpoena ISP For File Sharer's Identity
SAN DIEGO - An adult entertainment firm has sufficiently established a prima facie copyright infringement case against a John Doe online file sharer, a California federal magistrate ruled Dec. 7, granting the plaintiff's motion to conduct expedited discovery on the Doe's internet service provider (ISP) to identify the defendant for litigation purposes (Strike 3 Holdings LLC v. John Doe, No. 3:17-cv-02312, S.D. Calif.).

Judge Affirms Decision To Keep Deposition In Premises Liability Suit In U.S.
OWENSBORO, Ky. - A federal judge in Kentucky on Jan. 3 affirmed a magistrate judge's decision to deny a motorcycle company's motion to have a deposition in a product liability suit in Japan after finding that it would be inconvenient for all attorneys to travel to Japan and less of an inconvenience for a corporate representative to travel to California for a deposition (Derek Schall v. Suzuki Motor of America, Inc., et al., No. 4:14-cv-00074, W.D. Ky., 2018 U.S. Dist. LEXIS 873).

Law Firm: Texas Overstates Case In Urging Unsealing Of Asbestos Deposition
DALLAS - The Texas attorney general overstates the case in favor of unsealing deposition testimony from a law firm's principal and ignores that there is no evidence the record constitutes a court document, appellees told the state's appeals court on Jan. 3 (Christine Cole Biederman v. Beverly Jean Brown, et al., No. 01-07-00263-CV, Texas App., 1st Dist.).

Hearst Found To Have No Duty To Preserve Evidence Between Cases
NEW YORK - A magazine publisher that has faced several class complaints alleging unlawful disclosures of customers' data had no duty to preserve evidence between the termination of the first class complaint and the filing of the second, a New York federal magistrate judge ruled Dec. 18 (Josephine James Edwards v. Hearst Communications, Inc., No. 15-9279, S.D. N.Y., 2017 U.S. Dist. LEXIS 207540).

Judge Enjoins Insureds From Removing Any Property From Storage Unit In Sandy Suit
BROOKLYN, N.Y. - A New York federal judge on Nov. 6 confirmed that an Oct. 23 court-ordered subpoena remains in effect to make a storage space in Brooklyn, N.Y., available to allow the inspection of the contents of several storage units maintained by insureds in a Superstorm Sandy coverage dispute and enjoined the insureds from removing any boxes or property from the storage units absent permission form the court (Robert Toussie v. Allstate Insurance Co., et al., Nos. 14-2705 and 15-5235, E.D. N.Y., 2017 U.S. Dist. LEXIS 183603).

Magistrate Judge Denies Gynecologist's Request For Grand Jury Instructions
BOSTON - A gynecologist accused of wrongfully providing a pharmaceutical drug sales representative access to patients' confidential health information cannot have access to instructions provided to two grand juries, a federal magistrate judge in Massachusetts ruled Jan. 3, holding that the information could not support her claim for vindictive prosecution (United States of America v. Rita Luthra, No. 15-cr-30032, D. Mass., 2018 U.S. Dist. LEXIS 604).

Additional Discovery Not Needed In Disability Suit, Maryland Federal Judge Says
BALTIMORE - A Maryland federal judge on Dec. 13 denied a disability claimant's motion to compel the production of documents related to the doctors who reviewed the claimant's case after determining that the administrative record is sufficient to determine whether the insurer operated under a conflict of interest (Karin Reidy v. The Unum Life Insurance Company of America et al., No. 16-2926, D. Md., 2017 U.S. Dist. LEXIS 204705).

Court: Company Must Produce Evidence It Proffered For Asbestos Plaintiff's Review
SPRINGFIELD, Ill. - A judge properly ordered a boiler company to produce more than 5,000 index cards after the company voluntarily permitted inspection by an asbestos plaintiff, an Illinois appeals court held Dec. 5 (Larry Salvatore Sr., et al. v. Cleaver-Brooks, et al., No. 4-17-0173, Ill. App., 4th Dist.).

English Master Grants Third Party Access To Documents In Settled Asbestos Case
LONDON - Documents submitted in a settled case between two companies offer an unprecedented look into what an asbestos products company knew about the dangers and must be disclosed, an English master said Dec. 5 (Graham Dring v. Cape Distribution Limited, et al., No. HQ12X01829, HQ13X02470, U.K. High).

Missouri Federal Judge Won't Compel Prescription Records In Drug Patent Case
ST. LOUIS - In a Jan. 2 memorandum, a Missouri federal judge quashed a motion to compel a Missouri-based pharmacy provider to comply with a subpoena duces tecum issued by a New Jersey federal judge overseeing patent litigation over the narcolepsy drug Xyrem (Par Pharmaceutical Inc. v. Express Scripts Specialty Distribution Services Inc., No. 17-510, E.D. Mo., 2018 U.S. Dist. LEXIS 197).

Fracking Company's Trade Secret Misappropriation Case Fails, Former Employees Say
DENVER - Two men who formerly worked for a hydraulic fracturing company filed a brief in Colorado federal court on Dec. 8, arguing that the fracking company cannot show good cause for expediting the additional discovery that it seeks in its lawsuit in which the company alleges that the men misappropriated trade secrets (EOG Resources Inc. v. Ryan Birkenfeld, et al., No. 17-2721, D. Colo.).

Halliburton Must Provide Information In Groundwater Case, Plaintiffs Say
OKLAHOMA CITY - Residents who argue that Halliburton Energy Services Inc. (HESI) is liable for contaminating their drinking water supply with perchlorate on Dec. 6 filed a brief in an Oklahoma federal court contending that HESI should be compelled to produce documents and other information (Albin Family Revocable Living Trust, et al. v. Halliburton Energy Services Inc., No. 16-910, W.D. Okla.).

Magistrate Judge Approves Reinsurer's Withdrawal Of Motions To Compel Discovery
SCRANTON, Pa. - In a breach of contract dispute over a reinsurance agreement for a bond program, a Pennsylvania federal magistrate judge on Dec. 1 approved a bond reinsurer's withdrawal of motions to compel discovery and for a protective order (Aegis Security Insurance Co. v. Kingsway Financial Services Inc., No. 16-1555, M.D. Pa.).

Justice Orders Discovery Into Jurisdiction Over Asbestos Brewery Filters Case
NEW YORK - New York lacks jurisdiction over asbestos claims against an out-of-state jewelry-making products company, but further discovery is needed into whether the plaintiff was exposed to filters at breweries in the state, a justice held in a pair of opinions posted Dec. 27 (Richard S. Trumbull, et al. Adience Inc., et al., No. 190084/2016, N.Y. Sup., New York Co., 2017 N.Y. Misc. LEXIS 5069, 2017 N.Y. Misc. LEXIS 5059).

Parties In Uber Trade Secrets Suit Won't Stipulate To Special Master Findings
SAN FRANCISCO - Parties in a trade secrets lawsuit alleging that a former employee of autonomous car development company Waymo LLC stole the company's trade secret information and provided it to his new employer, Uber Technologies Inc., on Dec. 7 refused to agree to stipulate to the findings of a special master tasked with determining whether a letter from a former Uber employee shows that Uber hid evidence so that it could not be used at trial (Waymo LLC v. Uber Technologies Inc., et al., No. 17-0939, N.D. Calif.).

Summary Judgment In Trade Secrets Suit Denied Since Discovery Is Not Completed
SAN DIEGO - Ruling that a solar energy products manufacturer is entitled to completed discovery before a ruling on a summary judgment motion could be considered in a misappropriation of trade secrets lawsuit, a federal judge in California on Dec. 12 denied a former employee's motion without prejudice (SolarCity Corp. v. Daniel Doria, No. 16-3085, S.D. Calif., 2017 U.S. Dist. LEXIS 204464).

Magistrate Judge Extends Discovery In Reinsurance Case Over Promissory Note
LINCOLN, Neb. - A Nebraska federal magistrate judge on Nov. 30 extended the discovery deadline by one month in a dispute over whether a reinsurer owes an insured $152,616.35 under a promissory note executed pursuant to a reinsurance participation agreement (RPA) (Applied Underwriters Inc. v. Top's Personnel Inc., No. 15-90, D. Neb.).

Federal Bankruptcy Judge Denies Bid To Seal Sale Of Insolvent Insurer's Claims
NEW YORK - A federal bankruptcy judge in New York on Dec. 15 denied Rapid-American Corp.'s request to make details of a proposed sale of claims on defunct insurance company, Midland Insurance Co., confidential, saying it had not even tried to give reason for the secrecy (In re: Rapid-American Corp., Chapter 11, No. 13-10687, S.D. Bkcy. N.Y., 2017 Bankr. LEXIS 4266).

Evidence Against Arson Defendant Was Properly Admitted, Appeals Court Says
HARTFORD, Conn. - A Connecticut appeals panel on Dec. 19 found that a trial court judge did not err when admitting the out-of-court statements of the co-conspirator of a woman who was found guilty of setting fire to her home and submitting a fraudulent insurance claim, after finding that the statements did not constitute inadmissible hearsay (State of Connecticut v. Amanda Azevedo, No. AC 38124, Conn. App., Conn. App. LEXIS 497).

Judge: More Discovery Needed To Determine If Association's Defects Suit Is Timely
NEWARK, Del. - A Delaware judge on Dec. 7 deferred ruling on motions for summary judgment filed by two contractors, holding that more discovery is needed to determine if a construction defects lawsuit brought by a condominium owners association is barred by the statute of limitations (Crest Condominium Association, et al. v. Royal Plus Inc, et al., No. S16C-10-024-RFS, Del. Super., Sussex Co., 2017 Del. Super. LEXIS 642).

6th Circuit Denies Rehearing For Ruling On Documents Between Insurer, Reinsurer
CINCINNATI - In an asbestos coverage dispute, the Sixth Circuit U.S. Court of Appeals on Jan. 3 denied a panel rehearing and rehearing en banc on a decision to not conduct an in camera review of an insurer's documents disclosed to third parties other than a reinsurer and a claims adjuster (In re OneBeacon Insurance Co. v. The William Powell Co., No. 17-3852, 6th Cir.).

Judge Orders Insurer To Produce Documents On Reinsurance, Mediation
PITTSBURGH - A Pennsylvania federal judge on Dec. 7 granted and denied in part an insured's request to compel an insurer to produce redacted documents pertaining to mediation in an underlying case, as well as reinsurance information (Golon Inc. v. Selective Insurance Company of the Southeast, et al., No. 17-0819, W.D. Pa., 2017 U.S. Dist. LEXIS 201792).

Defendants In Flint Water Case Say They Are Entitled To A Stay Of Discovery
DETROIT - A group of defendants in the lawsuit brought by residents of Flint, Mich., alleging injuries from exposure to lead-contaminated drinking water on Dec. 15 filed a brief arguing that if the district court grants a stay to other defendants in the case, it should "properly" stay discovery as to all of the defendants to avoid unfair prejudice to the private corporate defendants that would be forced to provide discovery at a time when they cannot obtain critical discovery (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).

Judge Stays Discovery Until Ruling On Motion To Dismiss Reinsurers' RICO Lawsuit
EL PASO, Texas - In a lawsuit alleging a scheme to take control over an auto dealership and to decline selling vehicle-protection products that are reinsured, a Texas federal judge on Dec. 26 stayed all discovery until a ruling on a motion to dismiss (Richard C. Poe II, et al. v. Anthony E. Bock, et al., No. 17-00232, W.D. Texas).

Federal Judge Partly Grants Motion For Protective Order In Wrongful Death Dispute
BALTIMORE - In accordance with the Health Insurance Portability and Accountability Act (HIPAA) and its implanting regulations, a Maryland federal judge on Dec. 19 issued a disclosure order authorizing health care providers to disclose a decedent's protected health information in the presence of plaintiff's counsel in a wrongful death and negligence lawsuit and also issued a qualified protective order authorizing third parties to disclose the decedent's protected health information pursuant to traditional discovery mechanisms (Gwendolyn Lynch v. SSC Glen Burnie Operating Company, LLC, No. 17-1328, D. Md., 2017 U.S. Dist. LEXIS 208948).

Judge Places Asbestos Evidence Under U.S. Military Technology Protection Rules
SEATTLE - Parties to an asbestos suit on Dec. 15 agreed that evidence produced during discovery should fall under various U.S. laws and regimes designed to protect against the release and export of defense and military related technologies (Thomas A. Johnson, et al. v. Air & Liquid Systems Corp., et al., No. 17-834, W.D. Wash.).

Government Seeks Mandamus Of DACA Discovery Order From Supreme Court
WASHINGTON, D.C. - After the Ninth Circuit U.S. Court of Appeals denied its petition for mandamus of a trial court's order requiring an expanded administrative record in a lawsuit seeking to block termination of the Deferred Action for Childhood Arrivals (DACA) program, the U.S. government on Dec. 1 filed a similar petition with the U.S. Supreme Court, seeking to halt the discovery of what it asserts are privileged deliberative documents (In re United States, et al., No. 17-801, U.S. Sup.).

Judge Clarifies Fact, Opinion Work Product In Patent Antitrust Suit
SAN JOSE, Calif. - Responding to discovery disputes by the parties in a lawsuit alleging monopolization and false advertising of patents for specialty medical software, a California federal judge on Nov. 6 clarified a previous order compelling production, differentiating between fact and opinion work product in the context of waiver of privilege (Cave Consulting Group Inc. v. OptumInsight Inc., No. 3:15-cv-03424, N.D. Calif, 2017 U.S. Dist. LEXIS 183672).

Judge Permits Government To Conduct Broad Search Of Email Addresses
MONTGOMERY, Ala. - An Alabama federal judge on Dec. 1 granted the U.S. government's motion to reconsider limitations that were previously imposed on search methods to be used with certain email accounts, with the judge concluding that the specifics of the case require flexibility with the usual particularity requirements for warrants required by the Fourth Amendment to the U.S. Constitution (In re Search of Information Associated with 15 Email Addresses Stored at Premises Owned, Maintained, Controlled or Operated by 1&1 Media, Inc., et al., No. 2:17-cm-03152, M.D. Ala.).

Judge Allows Subpoena Of Insurer's Consultants In Windstorm Coverage Dispute
SEATTLE - Finding insufficient support for an insurer's claim that its consultants were engaged in advance of possible insurance fraud litigation, a Washington federal judge on Dec. 5 denied the insurer's motion to quash subpoenas served on them by the plaintiff in a coverage suit related to extreme weather events (Premier Harvest LLC, et al. v. AXIS Surplus Insurance Co., et al., No. 2:17-cv-00784, W.D. Wash., 2017 U.S. Dist. LEXIS 199910).

Florida High Court Deems Malpractice Suit Interview Provision Unconstitutional
TALLAHASSEE, Fla. - State law amendments in 2013 providing for secret ex parte interviews of a medical malpractice claimant's physicians violate the Florida Constitution's guarantees of privacy and court access, a Florida Supreme Court majority ruled Nov. 9, finding that including the interviews as part of the mandated presuit informal discovery process required claimants to waive their privacy rights to avail themselves of the courts (Emma Gayle Weaver v. Stephen C. Myers, M.D., et al. No. SC15-1538, Fla. Sup., 2017 Fla. LEXIS 2282).

Arkansas Supreme Court: Execution Drug Maker Must Be Identified
LITTLE ROCK, Ark. - A split Arkansas Supreme Court on Nov. 2 agreed with a lower court that state law does not prohibit the identification of manufacturers of an execution drug but said it does require protection of the identities of sellers and suppliers (Arkansas Department of Correction, et al. v. Steven Shults, No. CV-17-788, Ark. Sup., 2017 Ark. LEXIS 266).

BNSF Ordered To Produce Documents, Designee In Amtrak Derailment Suit
KANSAS CITY, Kan. - Railroad track owner BNSF Railway Co. was directed Dec. 1 to provide certain records and corporate designee depositions by a Kansas federal magistrate judge who mostly granted a motion to compel by passengers intervening in a suit over a National Railroad Passenger Corp. (Amtrak) train derailment, with the magistrate deeming most of the requested discovery relevant to negligence claims, while limiting the scope of requests found to be overbroad (National Railroad Passenger Corp., et al. v. Cimarron Crossing Feeders LLC No. 6:16-cv-01094, D. Kan., 2017 U.S. Dist. LEXIS 197572).

Federal Judge Compels Discovery From Plaintiffs In Asbestos-Drilling Mud Case
BATON ROUGE, La. - Plaintiffs alleging asbestos exposure in drilling mud must respond to written discovery seeking information regarding injuries, exposure and work history and seeking the release of related medical records and work histories, a federal judge in Louisiana said Nov. 14 (Manuel Garza v. Phillips 66 Co., et al., No. 13-742, M.D. La.).

New Jersey Panel OKs Discovery Of Employee Files Without In Camera Review
TRENTON, N.J. - In light of an existing protective order, a New Jersey appeals panel on Nov. 22 found no error in a trial court's order compelling production of employee records in a wrongful discharge case without first reviewing them in camera, ruling that the protection of such privacy concerns are determined on a case-by-case basis (Louis Narvaez v. New Jersey Judiciary, Vicinage 4, No. A-3166-16T1, N.J. Super., App. Div., 2017 N.J. Super. Unpub. LEXIS 2920).

Magistrate Orders Hospital To Produce Asbestos Pathology Information For Testing
GREENVILLE, N.C. - A hospital must produce additional lung pathology materials in its possession for testing by an asbestos defendant, a federal magistrate judge in North Carolina held Nov. 3 (Faye Gore v. 3M Co., et al., No. 16-716, E.D. N.C.).

Document Production Ordered In Subrogation Suit Over Fire Caused By Water Heater
WICHITA, Kan. - A Kansas federal magistrate judge on Dec. 1 mostly granted motions to compel by a homeowners insurer and a water heater manufacturer, finding the parties' requested documents to be relevant to the product liability claims, related to a fire-causing water heater, and mostly nonprivileged and discoverable (The Travelers Home and Marine Insurance Co. v. HTP Inc., et al., No. 6:15-cv-01371, D. Kan., 2017 U.S. Dist. LEXIS 198064).

Texas Panel Vacates Discovery Order, Says Documents Not Relevant To Contract Claim
TYLER, Texas - The 12th District Texas Court of Appeals on Nov. 8 determined that a trial court erred in granting an insured's motion to compel because the documents sought by the insured are not relevant to the contract claim and will not be relevant unless and until the extracontractual claims are tried (In re: Allstate Fire & Casualty Insurance Co., No. 12-17-00266, Texas App., 12th Dist., 2017 Tex. App. LEXIS 10428).

Disability Income Insurer Must Produce Documents Pertaining To Claims Decision
COLUMBUS, Ohio - Following an in camera review, an Ohio federal magistrate judge on Nov. 27 granted an insured's motion to compel the production of seven documents after determining that the documents will help to determine whether the insurer acted in bad faith in its handling of the insured's disability income claim (Mukesh R. Shah, M.D. v. Metropolitan Life Insurance Co., et al., No. 16-1124, S.D. Ohio, 2017 U.S. Dist. LEXIS 194347).

Objections To Insurer's Discovery Requests Overruled In Dispute Over Employee Theft
PHILADELPHIA - A Pennsylvania federal magistrate on Nov. 14 granted an insurer's motion to overrule objections to its request for the production of documents in a coverage dispute arising from the alleged theft of an insured's employee stock ownership plan assets by a former employee (Barbie Spear, in her capacity as trustee of the Alliance Holdings, Inc. Employee Stock Ownership Plan and Alliance Holdings, Inc. Employee Stock Ownership Plan, Plaintiffs v. Westfield Insurance Company, No. 15-00582, E.D. Pa., 2017 U.S. Dist. LEXIS 188193).

Discovery Outside Of Administrative Record Is Not Warranted, Judge Says
BALTIMORE - A disability claimant is not permitted to conduct discovery outside of the administrative record because the claimant failed to identify any specific need for extra-record discovery, a Maryland federal judge said Nov. 16 (Amy Silverstone v. Reliance Standard Life Insurance Co., No. 17-0111, D. Md., 2017 U.S. Dist. LEXIS 189528).

Magistrate Judge: Discovery Needed On Whether Company Is 'Dead and Buried'
DAYTON, Ohio - A federal judge in Ohio on Nov. 15 recommended denying a defendant company's motion to dismiss a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) lawsuit on the ground that discovery is necessary to determine if the company is "dead and buried" and thus subject to liability under the statute (Garrett Day, LLC v. International Paper Company, Inc., et al., No. 15-cv-00036, S.D. Ohio, 2017 U.S. Dist. LEXIS 188568).

MDL Judge Will Allow Limited Discovery Into C-Qur Patch Swedish Parent Company
CONCORD, N.H. - The New Hampshire federal judge overseeing the C-Qur mesh multidistrict litigation on Nov. 14 denied without prejudice a motion by the defendants' Swedish parent company to be dismissed for lack of personal jurisdiction and instead allowed plaintiffs to conduct limited discovery on personal jurisdiction (In Re: Atrium Medical Corp. C-Qur Mesh Products Liability Litigation, MDL Docket No. 2753, No. 16-md-2753, D. N.J.).

Expedited Discovery Request Overly Broad, Magistrate Judge Rules
WICHITA, Kan. - A plaintiff in a misappropriation of trade secrets lawsuit against its former employee and direct competitor has failed to show that expedited discovery is warranted in the action under Kansas' reasonableness or good cause test because, among other things, the plaintiff's discovery sought is overly broad, a federal magistrate judge in Kansas ruled Nov. 15 in denying the plaintiff's motion for expedited discovery (HydroChem LLC v. Loren Keating, et al., No. 17-1281, D. Kan., 2017 U.S. Dist. LEXIS 188467).

Discovery In Benzene Case Should Be Reopened, Man Says; More Witnesses Exist
ASHEVILLE, N.C. - A North Carolina man who contends that a company is liable for contaminating his groundwater with benzene on Nov. 27 filed a brief in North Carolina federal court seeking to reopen discovery on grounds that there is evidence that was "in large part" available during discovery in the form of witness testimony the defendants failed to pursue (Kent Stahle v. CTS Corporation, No. 14-48, W.D. N.C.).

Federal Judge Grants Discovery Extension In Fraudulent Transfers Suit
ATLANTA - In a dispute over alleged fraudulent transfers of reinsurance funds, a Georgia federal judge on Nov. 21 granted in part a request to extend discovery for two additional months "only to follow up on existing issues" but said no new discovery is to occur (Canal Insurance Co., et al. v. Golden Isles Reinsurance Company Ltd., et al., No. 15-03331, N.D. Ga.).

Judge Denies Extension On Discovery Of Class Policies In Reinsurance Fraud Scheme
BALTIMORE - A Maryland federal judge on Nov. 29 denied a request to extend the relevant time period for discovery as to 11 class policies experiencing an 2015 cost of insurance (COI) increase in a dispute over an alleged life insurance fraud scheme that shifted debt to reinsurers (Richard Dickman, et al. v. Banner Life Insurance Co., No. 16-192, D. Md.).

Companies: Lead Paint Expert Should Be Excluded Due To Missing Discovery Deadline
MILWAUKEE - Three of the companies being sued by plaintiffs who contend that they are liable for lead-paint poisoning on Nov. 15 moved to exclude one of the plaintiffs' experts, contending that his opinions were submitted past the deadline for expert disclosures and after the close of discovery (Glenn Burton v. American Cyanamid, et al., No. 07-0303, E.D. Wis.).

Judge Extends Deadline On Class Certification Motion To Allow Discovery Completion
PHILADELPHIA - In a dispute over an alleged kickback insurance premium scheme involving insurers, reinsurers and lenders, a Pennsylvania federal judge on Nov. 9 granted a joint stipulation and order to extend deadlines pertaining to a class certification motion to allow homeowners to complete relevant discovery and document production (Nelson White Jr., et al. v. The PNC Financial Services Group Inc., et al., No. 11-7928, E.D. Pa., 2017 U.S. Dist. LEXIS 135743).

Judge Extends Discovery In Fracking Contract Dispute, Approves Inspections
PITTSBURGH - A federal judge in Pennsylvania on Nov. 7 extended the deadline for discovery in a hydraulic fracturing contract dispute following a previous ruling in which the judge denied a motion for protective order and a motion to quash that had been filed by a fracking company that sought to prevent inspection of fracking rigs at issue in the litigation (Orion Drilling Company LLC v. EQT Production Company, No. 16-01516, W.D. Pa.).

Florida High Court: Law Requires Discovery Of Adverse Medical Incident Reports
TALLAHASSEE, Fla. - An amendment to the Florida Constitution requires a hospital to produce external documents reviewing a surgical error incident, a Florida Supreme Court majority ruled Oct. 26 in a medical negligence suit, concluding that the statute favors the elimination of restrictions on patients' discovery of adverse medical incident reports (Amber Edwards v. Larry D. Thomas, et al., No. SC15-1893, Fla. Sup., 2017 Fla. LEXIS 2136).

New Jersey Panel Orders Review Of Personnel Records In Discrimination Suit
TRENTON, N.J. - New Jersey Transit Corp. (NJT) should have the opportunity to establish the confidential nature of personnel files sought via discovery in an employee's discrimination lawsuit, a New Jersey appeals panel ruled Oct. 30, reversing an order compelling production and directing a trial court to conduct appropriate in camera review of the disputed documents (Mildalia Madlinger v. New Jersey Transit Corp., No. A-2310-16T2, N.J. Super., App. Div., 2017 N.J. Super. Unpub. LEXIS 2726).

Supreme Court To Hear Case On Foreign Application Of Stored Communications Act
WASHINGTON, D.C. - Over the opposition of Microsoft Corp., the U.S. Supreme Court on Oct. 16 granted the U.S. government's petition for certiorari to decide whether a warrant issued under the Stored Communications Act (SCA) can be applied extraterritorially to require an email provider to produce data that is stored on foreign servers (United States v. Microsoft Corp. [In re: Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp.], No. 17-2, U.S. Sup.).

Google Sanctioned $10,000 Per Day For Noncompliance With Email Warrant
SAN JOSE, Calif. - A California federal judge on Oct. 19 granted a motion by Google Inc. in a dispute with the federal government over whether a Stored Communications Act (SCA) warrant may be enforced extraterritorially, opening the door for Google to appeal an order compelling it to comply with such a warrant seeking foreign-stored emails (In re: Search of Content That is Stored at Premises Controlled by Google, No. 3:16-mc-80263, N.D. Calif.).

Government Objects To Keyword Search Requirement In Email Warrants
MONTGOMERY, Ala. - One month after an Alabama federal magistrate granted the U.S. government's application for warrants to search certain email accounts, the government on Oct. 23 filed a motion for reconsideration of an ex ante requirement that the searches be conducted using keywords, calling the stricture burdensome and not necessary under the Fourth Amendment (In re Search of Information Associated with 15 Email Addresses Stored at Premises Owned, Maintained, Controlled or Operated by 1&1 Media, Inc., et al., No. 2:17-cm-03152, M.D. Ala.).

Premera Compelled To Produce Nonprivileged Documents In Data Breach Suit
PORTLAND, Ore. - An Oregon federal judge on Oct. 27 ruled that many documents withheld from discovery by Premera Blue Cross in a class action over a 2014 data breach were not privileged, mostly granting a motion to compel by the plaintiffs (In Re: Premera Blue Cross Customer Data Security Breach Litigation, No. 3:15-md-02633, D. Ore., 2017 U.S. Dist. LEXIS 178762).

Magistrate Judge Grants Monsanto's Discovery Requests In PCB Contamination Suit
NEW HAVEN, Conn. - A federal magistrate judge in Connecticut on Nov. 2 ordered the city of Hartford and the Hartford Board of Education to turn over documents related to presentations that their expert performed regarding polychlorinated biphenyls (PCBs), finding that the information was not protected from disclosure by the work product doctrine (City of Hartford, et al. v. Monsanto Company, et al., No. 15cv1544, D. Conn., 2017 U.S. Dist. LEXIS 181651).

Class Wants Crime-Fraud Exception In Asbestos-Talc Evidence Destruction Case
NEWARK, N.J. - The attorney-client privilege should not protect evidence in a case alleging defendants spent decades fraudulently concealing the existence of asbestos in talc, plaintiffs told a federal judge in New Jersey on Nov. 2 (Kimberlee Williams, et al. v. BASF Catalysts LLC., et al., No. 11-1754, D. N.J.).

Dollar General Seeks Documents, Clarification In EEOC Suit Over Background Checks
CHICAGO - The operator of the Dollar General retail chain on Nov. 2 asked an Illinois federal court to compel the Equal Employment Opportunity Commission to respond to discovery requests in which the retailer seeks clarification about the commission's claims of disparate treatment related to employee background checks, as well as to remedial measures it should take (Equal Employment Opportunity Commission v. Dolgencorp LLC, No. 1:13-cv-04307, N.D. Ill.).

Plaintiffs Move To Compel Document Production In Google Biometric Suit
CHICAGO - The plaintiffs in a putative class action alleging violation of Illinois' Biometric Information Privacy Act (BIPA) by Google Inc. moved in Illinois federal court on Nov. 1, seeking to compel Google to use certain document custodians and search terms in response to discovery requests for documents related to Google's use of facial recognition technology (Lindabeth Rivera v. Google Inc., No. 1:16-cv-02714, and Joseph Weiss v. Google Inc., No. 1:16-cv-02870, N.D. Ill.).

Waymo's Request To Reopen Discovery In Trade Secrets Suit Denied
SAN FRANCISCO - It is too late in the litigation in a misappropriation of trade secrets lawsuit against Uber Technologies Inc. and others to require Uber to turn over all of its source code for its self-driving vehicle technology, and a plaintiff's motion to compel Uber to turn over the source code is overly broad, a federal judge in California ruled Oct. 16 in denying the motion (Waymo LLC v. Uber Technologies Inc., et al., No. 17-0939, N.D. Calif., 2017 U.S. Dist. LEXIS 170903).

Harvey Weinstein Sues The Company He Founded For Emails, Files For His Defense
GEORGETOWN, Del. - Harvey Weinstein, a film producer who was fired in October by the company he co-chaired with his brother following dozens of allegations of sexual harassment, sexual assault and rape, filed a complaint on Oct. 26 against The Weinstein Company Holdings LLC (TWC) in the Delaware Chancery Court seeking access to emails and employment files that he claims will assist in his defense (Harvey Weinstein v. The Weinstein Company Holdings, LLC, No. 2017-0765, Del. Chanc.).

EpiPen MDL Judge Allows Document Discovery But Stays Depositions
TOPEKA, Kan. - The Kansas federal judge overseeing the EpiPen multidistrict litigation on Oct. 13 agreed to partially lift a discovery stay on documents but kept in place his stay of depositions (In Re: EpiPen Marketing, Sales Practices and Antitrust Litigation, MDL Docket No. 2785, No. 17-md-2785, D. Kan., 2017 U.S. Dist. LEXIS 169541).

Judge Excludes Asbestos Deposition Testimony Company Never Got To Challenge
CLEVELAND - Because a defendant did not have a chance to cross-examine a man after he identified its asbestos-containing product in a deposition, his testimony does not fit with an exception to hearsay, a federal judge in Ohio held Oct. 19 (Charlene French, et al. v. A.W. Chesterton Co., et al., No. 16-1777, N.D. Ohio, 2017 U.S. Dist. LEXIS 174020).

Law Firm: Asbestos Deposition Isn't Court Record, Jurisdiction Can't Be Revived
DALLAS - A court lacks jurisdiction over 20-year-old deposition testimony into the creation of a memo some believe shows lawyers coaching asbestos witnesses because the testimony is not a court document, plaintiffs and their law firm told a Texas appeals court on Nov. 3 (Christine Cole Biederman v. Beverly Jean Brown, et al., No. 01-07-00263-CV, Texas App., 1st Dist.).

Plaintiffs In Groundwater Case Say Expert's Deposition Changes Should Be Permitted
GREENVILLE, Miss. - Mississippi residents who sued a company alleging that it is liable for groundwater contamination filed a brief in Mississippi federal court on Oct. 18, arguing that their expert's errata sheet testimony changes should be permitted. However, if they are not permitted, the plaintiffs' expert has offered to withdraw his changes and file a supplemental report instead (Joe E. Sledge, et al. v. Meritor Inc., et al., No. 16-CV-053, N.D. Miss.).

Missouri Federal Judge Permits Discovery On Insured's Understanding Of Policies
KANSAS CITY, Mo. - A Missouri federal judge on Nov. 1 determined that a pollution liability insurer is entitled to the production of documents related to whether overlapping coverage exists under the policies at issue and what the insured's understanding of the policies at issue was when the policies were issued (Sunflower Redevelopment LLC v. Illinois Union Insurance Co., No. 15-577, W.D. Mo., 2017 U.S. Dist. LEXIS 180710).

Disability Claimant Permitted To Conduct Discovery Outside Of Administrative Record
WICHITA, Kan. - A disability claimant is permitted to conduct limited discovery outside of the administrative record, a Kansas federal magistrate judge said Oct. 10 after determining that the claimant met her burden of showing that "some limited extra-record discovery" is relevant and appropriate as it applies to the defendant's dual role of plan insurer and plan administrator (Karen A. Baty v. Metropolitan Life Insurance Co., 17-1200, D. Kan., 2017 U.S. Dist. LEXIS 171014).

Judge Orders Insurer To Produce Claim Information In Reinsurance Fraud Case
ATLANTA - In a dispute over alleged fraudulent transfers of reinsurance funds, a Georgia federal judge on Oct. 6 ordered an insurer to produce information for each claim for which it has the claim date within six months of the start or end of a reinsurance agreement (Canal Insurance Co., et al. v. Golden Isles Reinsurance Company Ltd,, et al., No. 15-03331, N.D. Ga.).

Claim And Underwriting Files Are Relevant, Discoverable, Judge Rules In Reversal
EAST ST. LOUIS, Ill. - An Illinois federal judge on Sept. 27 reversed a magistrate judge's denial of a hospital's motion to compel a professional liability insurer to immediately produce the underwriting file for an insurance policy and the claim file pertaining to an underlying medical malpractice lawsuit, finding that the claim file and underwriting file are "relevant and discoverable" (National Fire and Marine Insurance Company v. Lee Lindemann, et al., No. 15-910, S.D. Ill., 2017 U.S. Dist. LEXIS 159153).

Hawaii Federal Judge Partly Grants Sanctions In Copyright Case
HONOLULU - Although refusing to dismiss a copyright infringement case outright as a sanction for providing insufficient discovery responses, a Hawaii federal judge on Oct. 17 ordered a plaintiff to supplement the discovery responses, attend a status conference and be deposed, as well as pay all court reporter fees associated with the deposition (Keoni Payton v. Defend Inc., et al., No. 15-238, D. Hawaii, 2017 U.S. Dist. LEXIS 171877).

Rapid-American Seeks Protective Order For Insurers' Subpoenas
NEW YORK - A declaratory insurance coverage action filed by Chapter 11 debtor Rapid-American Corp. is not the proper vehicle for insurers to use in search of evidence of fraud in the asbestos trust system, the debtor says in an Oct. 20 motion and memorandum seeking protection from the insurers' subpoenas in New York federal bankruptcy court (Rapid-American Corporation, et al. v. Travelers Casualty and Surety Company, et al., No. 15-01095, S.D. N.Y. Bkcy.).

Plaintiff: Protective Order Needed In Water Lawsuit; Depositions 'Thwart' Rights
SANTA ANA, Calif. - One of the plaintiffs in a chemical injury and groundwater contamination lawsuit against Pacific Gas & Electric (PGE) on Oct. 2 filed a memorandum of points and authorities supporting a request for a protective order, arguing that the company and its attorney are liable for "unjustifiable acts" because their attempt to take oral depositions is designed to "thwart" the plaintiffs' rights to "justice, due process of law and constitutional protection" (Barbara A. Vinson v. Pacific Gas & Electric Company, No. 16-514, C.D. Calif.).

New York Federal Judge Grants Insurer, Reinsurer's Fact Discovery Extension
NEW YORK - In a reinsurance coverage dispute for a trucking accident, a New York federal judge on Nov. 2 granted an extension for an insurer and a reinsurer on a discovery deadline because a dispute remains in the underlying action concerning any interest owed by the insurer (Endurance Assurance Corp. v. Florists' Mutual Insurance Co., et al., No. 16-09955, S.D. N.Y.).

Judge Sets Discovery Completion Date In Medicare Treatment Class Suit
NEW HAVEN, Conn. - Discovery in a class complaint accusing the U.S. secretary of Health and Human Services of violating the rights of Medicare beneficiaries by placing them on "observation status" rather than admitting then as "inpatients" in order to pay lower rates must be completed, not propounded, by June 15, a Connecticut federal judge ordered on Oct. 31 (Christina Alexander, et al. v. Thomas E. Price, No. 11-1703, D. Conn.).

Magistrate Judge Sets Discovery Deadline In Reinsurance Dispute Over Promissory Note
LINCOLN, Neb. - In an Oct. 20 order, a Nebraska federal magistrate judge set the discovery deadline for Dec. 1 in a dispute over whether a reinsurer owes an insured $152,616.35 under a promissory note executed pursuant to a reinsurance participation agreement (RPA) (Applied Underwriters Inc. v. Top's Personnel Inc., No. 15-90, D. Neb.).

Honeywell, Ford Dispute Charges For Redaction Of Asbestos Claimants' Data
WILMINGTON, Del. - The cost of redacting personal information in asbestos claimants' data from nine bankruptcy trusts should not be borne by Honeywell International Inc. or Ford Motor Co., which are seeking the data to mine for evidence of fraud, based on the plain language of the U.S. Bankruptcy Code, the companies argue in an Oct. 2 brief on appeal in Delaware federal court (In re: Motions Seeking Access to 2019 Statements, No. 16-1078, D. Del.).