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LexisNexis® Mealey's™ Discovery Legal News

Headline Discovery Legal News from LexisNexis®


Microsoft Agrees CLOUD Act Moots High Court Foreign-Stored Email Access Case
WASHINGTON, D.C. - Responding to the U.S. government's motion to vacate an appeals court ruling over law enforcement's ability to compel production of foreign-stored emails, Microsoft Corp. tells the U.S. Supreme Court in an April 3 brief that it doesn't oppose the motion, agreeing that the newly passed Clarifying Lawful Overseas Use of Data Act (CLOUD Act) moots the already-argued case (United States v. Microsoft Corp., No. 17-2, U.S. Sup.).

New York Justice Quashes Subpoenas Seeking Settled Defendants' Trial Testimony
NEW YORK - The new case management order governing asbestos trials permits two defendants to introduce interrogatories and deposition testimony from settled defendants but does not allow them to call corporate representatives from those companies, a New York justice held in a trio of opinions posted March 21 (In re: New York City Asbestos Litigation, Mary Murphy-Clagett v. A.O. Smith Water Products, et al., No. 190311/15, Kelly O'Connor v. A.O. Smith, et al., No. 190147/15, N.Y. Sup., New York Co.).

Arkansas Supreme Court Again Rules On Disclosure Of Execution Drugs
LITTLE ROCK, Ark. - In a split decision, the Arkansas Supreme Court on March 29 ruled that the identity of drug manufacturers that make drugs used for executions is not protected by the state's Method of Execution Act but reversed a trial court ruling that required the state to produce unredacted records that could tend to identify drug suppliers (Arkansas Department of Correction, et al. v. Steven Shults, No. CV-17-544, Ark. Sup., 2018 Ark. LEXIS 68).

West Virginia High Court Vacates Dismissal Sanction In Water Intrusion Suit
CHARLESTON, W.Va. - A trial court judge in West Virginia erred when dismissing a couple's construction defects lawsuit against their homebuilder as a sanction for improperly serving him with a subpoena, the state's high court ruled April 6, holding that the sanction was too harsh (Terri Smith, et al. v. Robert Todd Gebhardt, et al., No. 17-0206, W.Va. Sup., 2018 W.Va. LEXIS 242).

Terminating Sanctions In Trade Secrets, Defamation Suit Were Proper, Panel Rules
SAN DIEGO - A California trial court did not err in granting terminating sanctions against a defendant in a defamation and misappropriation of trade secrets lawsuit because any lesser remedy would not have properly protected a credit union's interests after the defendant deleted thousands of digital files that he was required to keep, a California appellate panel ruled in an April 6 unpublished opinion affirming the trial court's determination (San Diego County Credit Union v. Carlton Roark, No. D071960, Calif. App., 4th Dist., Div. 1, 2018 Calif. App. Unpub. LEXIS 2332).

N.Y. Court Denies Reargument In Asbestos Document Destruction Sanctions Case
NEW YORK - New York's top court on April 3 denied an asbestos-pipe defendant's motion asking the court to reconsider its decision not to review an award of sanctions for the company's destruction and loss of documents that the trial judge said demonstrated "gross negligence at a minimum" (Richard Warren v. Amchem Products Inc., et al., No. 2018-226, N.Y. App., 2018 N.Y. LEXIS 765).

No Sanctions Issued For Spoliation Of Evidence In Gas Explosion Dispute
CHARLESTON, W.Va. - A West Virginia federal judge on March 16 refused to issue sanctions for claims of spoliation of evidence in a subrogation suit arising out of a gas explosion because neither the insurer nor the company responsible for servicing the gas boiler timely filed the requests for sanctions (Travelers Property Casualty Company of America v. Mountaineer Gas Co., et al., No. 15-7959, S.D. W.Va., 2018 U.S. Dist. LEXIS 43208).

Relators In Katrina Qui Tam Suit Say State Farm Withheld, Spoliated Documents
GULFPORT, Miss. - The relators in a 12-year-old qui tam suit accusing State Farm Fire and Casualty Co. of filing false flood insurance after Hurricane Katrina ask a California federal court in a March 12 reply brief to compel the insurer to produce documents it improperly withheld as privileged (United States, ex rel. Cori Rigsby, et al. v. State Farm Fire & Casualty Co., No. 1:06-cv-00433, S.D. Miss.).

Magistrate Judge Compels Servicer To Produce Discovery In RESPA Class Action
SAN DIEGO - A California federal magistrate judge on April 6 granted a motion to compel a loan servicing company to respond to discovery requests, finding that discovery should continue in the case and that the servicer's request to stay discovery should be denied (Zarah Kimble, et al. v. Specialized Loan Servicing LLC, No. 16cv2519, S.D. Calif., 2018 U.S. Dist. LEXIS 59231).

Judge Denies Request For Discovery To Be Used In Taiwanese Actions
NEW HAVEN, Conn. - After determining that discovery sought by a Chinese petrochemical company for use in several Taiwanese cases was not relevant to the actions, a Connecticut federal judge on March 14 denied the company's request for discovery to be used in a foreign proceeding (In Re Ex Parte Application of China Petrochemical Development Corp. for an order pursuant to 28 U.S.C. 1782 to conduct discovery for use in foreign proceedings, No. 3:17-cv-02138, D. Conn., 2018 U.S. Dist. LEXIS 42258).

New York Justice Rules On Discovery In Professional Liability Coverage Dispute
NEW YORK - A New York justice on March 23 granted the branch of an insured's order to show cause to compel its professional liability insurer to produce copies of unredacted claims notes that were made during a particular period and that contain reserve information relevant to the insured's claim for coverage for an underlying medical malpractice lawsuit (American Medical Alert Corp. v. Evanston Insurance Company, et al., No. 655974/2016, N.Y. Sup., New York Co., 2018 N.Y. Misc. LEXIS 961).

Defendant In Fracking Patent Case Must Produce Documents, Federal Judge Says
HOUSTON - A federal judge in Texas on March 6 ruled that a company had to comply with discovery requests in a hydraulic fracturing patent infringement lawsuit because the company alleging the infringement had specifically named items in its amended complaint that constituted a violation of its patent (Baker Hughes Oilfield Operations LLC v. Packers Plus Energy Services Inc., No. 17-1422, S.D. Texas; 2018 U.S. Dist. LEXIS 36590).

Order Compelling Discovery In Groundwater Case Should Be Reversed, Company Says
GREENVILLE, Miss. - A company sued by residents who allege that it is liable for groundwater contamination on March 22 filed a brief in a Mississippi federal court contending that the court should reverse its order compelling the company's expert to provide discovery on grounds that it is based on a "mistaken factual premises," which renders its legal analysis "flawed" (Joe E. Sledge, et al. v. Meritor Inc., et al., No. 16-CV-053, N.D. Miss.).

Judge Allows Limited Jurisdictional Discovery In 9/11 Suit Against Saudi Arabia
NEW YORK - A New York federal judge on March 28 denied the Kingdom of Saudi Arabia's motion to dismiss a lawsuit alleging that its government's agents and employees bear responsibility for the Sept. 11, 2001, terrorist attacks, finding that limited jurisdictional discovery on specific factual allegations critical to whether Saudi Arabia is immune from the suit will proceed promptly and expeditiously as to the alleged tortious acts by purported Saudi agents Fahad al Thumairy and Omar al Bayoumi (Underwriters Inc., et al. v. Kingdom of Saudi Arabia, et al., No. MDL 03-1570, S.D. N.Y.).

Louisiana Federal Judge Grants 30-Day Inquiry Into Contacts With State
NEW ORLEANS - Asbestos plaintiffs have not shown any connection between Rohm & Haas Chemicals LLC and Louisiana sufficient for jurisdiction purposes, but may yet if they can show that the company is responsible for asbestos at Weeks Island Morton Salt facility, a federal judge in the state held March 23 in granting jurisdictional discovery (Leech, et al. v. 3M. Co., et al., No. 17-446, W.D. La., 2018 U.S. Dist. LEXIS 48197).

9th Circuit Upholds Sanctions In Nurses' Wage Class Lawsuit
PASADENA, Calif. - A Ninth Circuit U.S. Court of Appeals panel on March 19 upheld sanctions against the attorneys representing two nurses in a wage-and-hour lawsuit against their former employer, finding that under Federal Rule of Civil Procedure 37, a court may order a party to produce its nonparty expert witness and sanction the party's counsel if the witness fails to appear (Marlyn Sali, et al. v. Corona Regional Medical Center, et al., No. 15-56389, 9th Cir., 2018 U.S. App. LEXIS).

Virgin Islands Judge Orders Deposition Of Dead Lawyer's Partner In Asbestos Spat
CHRISTIANSTED, Virgin Islands - Asbestos plaintiffs properly served a subpoena on a Virgin Islands attorney's secretary while he was off island, and he may appear by telephone to testify regarding an affirmation his partner gave shortly before his death, a Virgin Island judge held Feb. 21 (In re: Asbestos, Catalyst, and Silica Toxic Dust Exposure Litigation, No. SX-15-CV-096, Virgin Islands Super., St. Croix, 2018 V.I. LEXIS 21).

Marketing Presentation Deemed Not Privileged In Vizio Smart TV Privacy Suit
SANTA ANA, Calif. - A marketing presentation that was sought in discovery by the plaintiffs in a putative privacy class action over Vizio Inc. smart TVs is not protected by attorney-client privilege, a California federal magistrate ruled in a March 13 in chambers order, finding the presentation to be business-oriented and not pertaining to legal advice (In Re: Vizio Inc., Consumer Privacy Litigation, No. 8:16-ml-02693, C.D. Calif.).

Court: Legal Analysist Role Doesn't Permit Privileged Document Production
SAN FRANCISCO - An asbestos plaintiff's role as a legal consultant for the railroad does not eradicate privilege claims over documents he reviewed as part of his job, a California appeals court held March 16 (Dennis M. Fitzpatrick v. The Superior Court of Alameda Co., et al., No. A151122, Calif. App., 1st Dist.).

Appeals Panel Affirms Production Of Incident Report In Slip-And-Fall Suit
RALEIGH, N.C. - A panel of the North Carolina Court of Appeals on March 20 affirmed a trial court's decision to grant a motion to compel discovery to a woman who injured herself when slipping in a parking lot because the incident report was not protected by attorney client privilege and the defendants did not show that the incident report was made in the anticipation of litigation (Paula Saunders v. Hull Property Group LLC, et al., No. COA-17-1115, N.C. App., 2018 N.C. App. LEXIS 254).

Fiduciary Exception To Attorney-Client Privilege Applies, Magistrate Says
MINNEAPOLIS - A disability insurer cannot assert that the attorney-client privilege applied to a number of withheld documents because the communications arising out of a claimant's request for plan documents were a matter of plan administration and fall under the fiduciary exception, a Minnesota federal magistrate judge said March 15 (Michael Christoff v. Unum Life Insurance Company of America, No. 17-3512, D. Minn., 2018 U.S. Dist. LEXIS 43535).

Magistrate Judge Orders Insurer To Produce Nonprivileged Documents
SYRACUSE, N.Y. - In an asbestos coverage dispute, a New York federal magistrate judge on March 28 granted in part a reinsurer's motion for reconsideration of a discovery ruling and ordered an insurer to disclose nonprivileged documents on coverage issues relating to primary and umbrella policies (Utica Mutual Insurance Co. v. R&Q Reinsurance Co., No. 15-cv-270, N.D. N.Y.).

Judge Orders Insurer To Turn Over Personnel Files In Bad Faith Suit
TAMPA, Fla. - A federal judge in Florida on March 21 ordered an insurer in a breach of contract and bad faith lawsuit to turn over certain personnel files for claims adjusters that handled the plaintiff's underlying claim for coverage because those documents are "material in determining bad faith" (Kevin Paul O'Connor v. GEICO Indemnity Co., No. 17-1539, M.D. Fla., 2018 U.S. Dist. LEXIS 46285).

Magistrate Federal Judge Orders Production Of Tax Documents In Reinsurance Case
SAN DIEGO - In a dispute over a reinsurer's alleged breach of reinsurance agreements because of a series of fraudulent transfers, a California federal magistrate judge on March 29 ordered a tax accountant to produce documents related to tax services (Odyssey Reinsurance Co. v. Richard Keith Nagby, et al., No. 16-3038, S.D. Calif., 2018 U.S. Dist. LEXIS 53520).

Insurer, Class Battle Over Scope Of Discovery In ACA Lactation Coverage Case
DES MOINES, Iowa - A magistrate judge improperly limited discovery in a case challenging a health insurer's cost-sharing arrangement for lactation consultant services, plaintiffs told a federal judge in Iowa March 12. But the insurer fired back March 26, saying the ruling properly limits discovery to the lone remaining issue: whether the in-network coverage complies with the Patient Protection and Affordable Care Act (ACA) (Jillian York, et al. v. Wellmark Inc., et al., No. 16-627, S.D. Iowa).

Magistrate Judge Strikes Discovery Of Reinsurance Policies In Fraud Dispute
BROOKLYN, N.Y. - A New York federal magistrate judge on March 16 struck a request for an insurer's tax returns and reinsurance policies because they are not relevant to a lawsuit over fraud based upon claims for reimbursement of medical supplies (Government Employees Insurance Co. v. Lenex Services Inc., et al., No. 16-6030, E.D. N.Y., 2018 U.S. Dist. LEXIS 43584).

Discovery Not Warranted In Disability Claimant's Suit, Federal Judge Says
AKRON, Ohio - Discovery pertaining to a potential conflict of interest between a disability plan and the plan's claims administrator is not warranted because the disability claimant failed to provide any factual support for the allegation that a conflict of interest influenced the termination of her long-term disability benefits, an Ohio federal judge said March 12 (Kristina L. Alekna v. The AT&T Service Inc. et al., No. 17-400, N.D. Ohio, 2018 U.S. Dist. LEXIS 40063).

Insurer Appeals $945,265 Breach Of Contract Judgment, Discovery Ruling In 2nd Circuit
NEW YORK - An insurer recently asked the Second Circuit U.S. Court of Appeals to reverse a lower federal court's $945,265.11 breach of contract judgment against it and an earlier discovery ruling in a dispute over coverage stemming from underlying sexual misconduct cases brought against its diocese insured (The Hartford Roman Catholic Diocesan Corp. v. Interstate Fire & Casualty Company, Nos. 16-2999 and 17-2484, 2nd Cir.).

Judge Won't Reopen Discovery For Review Of 2M Documents In Asbestos-Talc Case
ORLANDO, Fla. - A federal judge in Florida on March 26 denied a motion seeking to reopen discovery into an asbestos-talc case, rejecting complaints about the method through which defendants produced more than 2 million documents while ordering the plaintiff to produce an expert affidavit or face potential sanctions (Susan Stevenson, et al. v. Brenntag North America Inc., et al., No. 17417, M.D. Fla.).

Discovery Stay, Protective Order In Trade Secrets Misappropriation Suit Denied
AUSTIN, Texas - A rival to a provider of internet and cable services to higher education institutions is not entitled to a stay of discovery in a lawsuit brought by the provider because the rival has not shown that the federal misappropriation of trade secrets lawsuit is parallel to another action the provider brought against the rival's founder in California state court, a federal judge in Texas ruled March 26 in denying the rival's motion (Apogee Telecom Inc. v. University Video Services Inc., No. 17-0672, W.D. Texas, 2018 U.S. Dist. LEXIS 49679).

Judge: Health Insurer's Role In Proton-Beam Claim Denial A Basis For ERISA Claim
TAMPA, Fla. - A health insurer responsible for denying a man's proton-beam therapy claim and resulting appeal exercised sufficient decision-making power to be the subject of an ERISA suit, a federal judge in Florida held March 13. In a separate ruling issued the same day, the judge declined to stay discovery, saying two insurers' role in the health plan makes discovery likely regardless of the status of the case against them (Brett NyQuist v. The Group Health Benefit Plan for Associates of Publix Supermarkets Inc., et al., No. 17-344, M.D. Fla., 2018 U.S. Dist. LEXIS 40521).

Insurer's Liquidator Proposes Amended Discovery Plan In Breach Of Contract Dispute
NEW YORK - In a dispute over reinsurance proceeds allegedly owed to an insolvent insurer, a liquidator wrote to the New York federal court on April 4, proposing an amended phase one civil case discovery plan and scheduling order (Roger A. Sevigny v. Trygvesta Forsikring A/S, Trygvesta Forsikring A/S v. Cerberus Holding Company LLC, No. 16-04874, S.D. N.Y.).

Possible Ruling On Autodialer Systems Won't Stall Telemarketing Calls Class Suit
SAN DIEGO - A California federal judge on March 12 declined to issue a stay in a class suit accusing a home improvement products company of placing unwanted phone calls to cell phones using an automated telephone dialing system (ATDS), ruling that discovery may proceed despite a pending appeal challenging the Federal Communications Commission definition of an ATDS (Lucas Ambezewicz, et al. v. GDFriend, Inc., No. 17-2234, S.D. Calif., 2018 U.S. Dist. LEXIS 40267).

E-disclosure Bytes - Managing ESI In International Commercial Arbitration
By Louis A. Russo and Oliver E. Twaddell Introduction The proliferation of data, like the sun rising, is a given. Without effective rules and arbitral oversight, the introduction of such data into cross-border arbitrations could undermine the very reason why parties selected it as the means of resolving their disputes in the first place. This article briefly explores the rise of data and its impact on international commercial arbitration, highlighting some tools available to arbitrators and counsel to keep e-disclosure in check, ensuring that this dispute resolution tool remains a more efficient and cost-effective alternative to litigation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ruling Over Discovery Scope In DACA Suit Delayed Pending Negotiations
SAN FRANCISCO - Noting a request for additional negotiation time by a group of plaintiffs opposing rescission of the Deferred Action for Childhood Arrivals (DACA) program, a California federal judge on Jan. 22 allowed the plaintiffs and the U.S. government to take several days to try to agree on potential narrowing of the scope of a discovery order requiring the government to complete the administrative record with documents it asserts are privileged (The Regents of the University of California, et al. v. U.S. Department of Homeland Security, et al., No. 3:17-cv-05211, N.D. Calif.).

7th Circuit Affirms Discovery Ruling In Bone Cement Trade Secret Row
CHICAGO - A German bone cement manufacturer failed to timely appeal two rulings denying its motions to modify protective orders governing discovery and use of trade secret documents, a Seventh Circuit U.S. Court of Appeals panel ruled Feb. 1, also affirming denial of a third such motion and finding that a trial court used the proper standard in concluding that no good cause for modification exists (Heraeus Kulzer GmbH v. Biomet Inc., et al., No. 17-1674, 7th Cir, 2018 U.S. App. LEXIS 2588).

Magistrate Judge Denies Protection On Reinsurance Participation Agreement
SACRAMENTO, Calif. - In two putative class actions, a California federal magistrate judge ruled Jan. 12 that insurers are not entitled to a protective order regarding submission of a reinsurance participation agreement (RPA) (Shasta Linen Supply Inc. v. Applied Underwriters Inc., et al., Nos. 16-00158 & 16-01211, E.D. Calif., 2018 U.S. Dist. LEXIS 6079).

Agreement's No-Discovery Rule Found Not Unconscionable By Illinois Appeal Panel
CHICAGO - An appellant failed to establish authority or facts to support a challenge to an arbitration provision in an agreement with its former counsel, which contained a no-discovery rule, an Illinois appellate panel majority ruled Feb. 1, affirming a trial court's judgment against the former client and finding that the rule was not unconscionable (Tecnomatic S.p.A. v. Bryan Cave LLP, No. 1-16-1908, Ill. App., 1st Dist., 4th Div., 2018 Ill. App. Unpub. LEXIS 149).

Microsoft To Supreme Court: SCA Does Not Permit Seizure Of Foreign-Stored Emails
WASHINGTON, D.C. - In a Jan. 11 respondent brief, Microsoft Corp. asks the U.S. Supreme Court to affirm the Second Circuit U.S. Court of Appeals' finding that the Stored Communications Act (SCA) does not permit the government to seize, via warrant, emails that are stored abroad, arguing that altering of the 30-year old statute's reach to address such modern technological matters should be handled via legislation, not litigation (United States v. Microsoft Corp., No. 17-2, U.S. Sup.).

Apple, Qualcomm Debate $25,000-A-Day Discovery Sanction In FTC Antitrust Suit
SAN JOSE, Calif. - Qualcomm Inc. in a Jan.. 26 brief asks a California federal judge to affirm a $25,000-a-day discovery sanction that Apple Inc. called "unduly harsh" in a motion for relief, with Qualcomm arguing that the sanction amount is appropriate in light of Apple's pattern of discovery noncompliance in the antitrust lawsuit brought by the Federal Trade Commission (Federal Trade Commission, et al. v. Qualcomm Inc., et al., No. 17-cv-00220, N.D. Calif.).

Judge Grants PETA's Request For Sanctions For Untimely Discovery
TAMPA, Fla.- After a zoo and its owners failed to submit timely discovery responses in relation to allegations that they violated the Endangered Species Act (ESA), a Florida federal judge on Jan. 19 partially granted a motion filed by the People for Ethical Treatment of Animals Inc. (PETA) for sanctions (People for the Ethical Treatment of Animals v. Dad City's Wild Things, No. 16-2899, M.D. Fla., 2018 U.S. Dist. LEXIS 8761).

Judge Refuses To Order Sanctions, Compels Discovery Of Post-Imaging ESI
SAN DIEGO - A California federal judge on Jan. 18 ordered that a former employee of an energy products supplier provide supplemental discovery in relation to electronically stored information (ESI) but denied requests for sanctions filed by both parties for attorney fees (SolarCity Corp. v. Daniel Doria, No. 16-3085, S.D. Calif., 2018 U.S. Dist. LEXIS 8286).

D.C. Federal Judge: USPTO Satisfied Freedom Of Information Act Request
WASHINGTON, D.C. - A Freedom of Information Act (FOIA) request for documents relating to the U.S. Patent and Trademark Office (USPTO)'s Sensitive Application Warning System (SAWS) program was adequately fulfilled by the USPTO, according to a Jan. 31 ruling by a District of Columbia federal judge (R. Danny Huntington v. U.S. Department of Commerce, No. 15-2249, D. D.C., 2018 U.S. Dist. LEXIS 15430).

FOIA Suit Over DOD Subcontractor Plan To Proceed To Bench Trial
SAN FRANCISCO - In a Jan. 31 joint letter brief, the U.S. Department of Defense (DOD) and a small business advocacy group indicated their inability to agree to resolving the remaining issues in a Freedom of Information Act (FOIA) dispute on the existing court record, opting instead for a bench trial, which a California federal judge had offered in the alternative (American Small Business League v. U.S. Department of Defense, et al., No. 3:14-cv-02166, N.D. Calif.).

Joint-Defense Privilege Bars Disclosure In Computer Fraud Suit, Magistrate Rules
PORTLAND, Ore. - Because a Washington state tech firm and a former employee entered into a joint litigation and confidentiality agreement prior to an internal interview about claimed computer fraud against the employee's previous employer, an Oregon federal magistrate judge on Dec. 21 found that the tech firm was barred from proffering the interview to support its defense under the joint-defense privilege (Columbia Sportswear Co. v. 3MD Inc., et al., No. 3:17-cv-00342, D. Ore., 2017 U.S. Dist. LEXIS 210777).

Partial Disclosure Of Papa John's Consultant's Data Ordered In Drivers' Wage Suit
NEW YORK - Papa John's must turn over documents, except those protected by the attorney-client privilege, from a consultant hired, in part, to analyze alternative approaches to reimbursement of delivery driver vehicle expenses in a class complaint brought by drivers seeking compensation for under-reimbursed deliveries, a New York federal judge ordered Jan. 24 (William Durling, et al. v. Papa John's International, Inc., No. 16-3592, S.D. N.Y., 2018 U.S. Dist. LEXIS 11584).

Emails Shared With Contractor Are Privileged, Magistrate Judge Rules
BOSTON - Emails shared with a contractor who discovered construction defects in a couple's home are protected from disclosure by the work product doctrine, a federal magistrate judge in Massachusetts ruled Jan. 26, holding that the documents contained information about ongoing litigation and litigation strategy (Gregg Wade, et al. v. Touchdown Realty Group LLC, et al., No. 17-10400-PBS, D. Mass., 2018 U.S. Dist. LEXIS 13069).

Protective Order, Compel Motions Partly Granted In Accident Coverage Dispute
OKLAHOMA CITY - In a Feb. 2 discovery order, an Oklahoma federal judge partly granted an injured motorist's motion to compel certain claims and training materials from her employer's insurer, deeming some irrelevant to her underinsured motorist (UIM) claim and finding some to be likely protected by attorney-client privilege (Nickie Amber O'Brien v. Travelers Property Casualty Company of America, et al., No. 5:16-cv-01176, W.D. Okla., 2018 U.S. Dist. LEXIS 17421).

Magistrate Judge Says Discovery Not Warranted In Disability Dispute
INDIANAPOLIS - An Indiana federal magistrate judge on Feb. 2 denied a disability claimant's motion to compel discovery on the basis that the claimant failed to meet her burden of proving that the plan operated under a conflict of interest that would entitle her to conduct discovery (Angel Allen v. The Lilly Extended Disability Plan, et al., No. 16-2224, S.D. Ind., 2018 U.S. Dist. LEXIS 17290).

Federal Judge Partially Grants Motion To Compel In Premises Liability Suit
MONTGOMERY, Ala. - A federal judge in Alabama on Feb. 1 partially granted and denied a plaintiff's motion to compel in a premises liability suit and ruled that a company that owns a clinic where a woman fell out of her wheelchair must turn over information related to the plaintiff but that information related to other doctors not involved in her care will not be turned over in discovery (John W. Washington v. Bio-Medical Application of Alabama Inc., No. 2:17-cv-855, M.D. Ala.).

Magistrate Judge Partially Grants Motion To Compel In Lead Paint Coverage Suit
BALTIMORE - A Maryland federal magistrate judge on Jan. 19 determined that an insurer is required to produce documents related to its knowledge of any lead paint conditions at its insured's buildings prior to the date on which the insured's insurance application and endorsement became effective (CX Reinsurance Company Limited, f/k/a CNA Reinsurance Company Limited v. Devon S. Johnson, No. 15-3132, D. Md., 2018 U.S. Dist. LEXIS 8594).

Residents: Company Should Be Compelled To Produce Expert's Documents In Water Case
GREENVILLE, Miss. - Mississippi residents who sued a company alleging that it is liable for groundwater contamination filed a brief in Mississippi federal court on Jan. 16 seeking to compel the production of documents related to expert testimony (Joe E. Sledge, et al. v. Meritor Inc., et al., No. 16-CV-053, N.D. Miss.).

Motion To Compel Deposition Of Third Party Granted In Starbucks FCRA Class Suit
SEATTLE - A Washington federal judge on Jan. 8 granted a motion to compel deposition of a third party filed by the lead plaintiff in a class suit accusing Starbucks Corp. of violating the Fair Credit Reporting Act (FCRA) by revoking employment offers made to job applicants with negative results on their background checks before providing applicants with a copy of the checks and a description of their rights (Jonathan Santiago Rosario, et al. v. Starbucks Corporation, No. 16-1951, W.D. Wash., 2018 U.S. Dist. LEXIS 3825).

Insurer Opposes Reopening Discovery In Reinsurance Case On Class Certification
LINCOLN, Neb. - In a dispute over whether a reinsurer owes $152,616.35 under a promissory note executed pursuant to a reinsurance participation agreement (RPA), an insurer argues in its Jan. 24 response that it would be unduly delayed and prejudiced if a Nebraska federal court grants the reinsurer's request for leave to amend an answer and to reopen discovery on a limited basis for class certification (Applied Underwriters Inc. v. Top's Personnel Inc., No. 15-90, D. Neb.).

Federal Judge Grants Additional Discovery Extension To Reinsurer
NEW YORK - In a reinsurance coverage dispute for a trucking accident, a New York federal judge on Jan. 3 granted a two-month discovery deadline extension to a reinsurer (Endurance Assurance Corp. v. Florists' Mutual Insurance Co., et al., No. 16-09955, S.D. N.Y.).