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LexisNexis® Mealey's™ Discovery Legal News
Headline Discovery Legal News from LexisNexis®
Solicitor General To Argue In High Court Case On False Claims Act Seal Violations
WASHINGTON, D.C. - In its Oct. 11 order list, the U.S. Supreme Court granted a motion by Acting U.S. Solicitor General Ian Heath Gershengorn to participate in upcoming oral arguments over what the appropriate sanctions are when a private qui tam lawsuit plaintiff violates a seal order under the False Claims Act (FCA) (State Farm Fire & Casualty Co. v. United States, ex rel. Cori Rigsby, et al., No. 15-513, U.S. Sup.; 2016 U.S. LEXIS 6149).
Supreme Court Denies Certiorari In Dispute Over Sealed Chrysler Documents
WASHINGTON, D.C. - In its Oct. 3 order list, the U.S. Supreme Court denied a petition for certiorari by FCA US LLC, formerly known as Chrysler Group LLC (Chrysler), letting stand a Ninth Circuit U.S. Court of Appeals ruling that had vacated the denial of an intervenor's motion to unseal documents related to an injunction motion in a consumer class action (FCA US LLC [f/k/a Chrysler Group LLC] v. The Center for Auto Safety, No. 15-1211, U.S. Sup.; 2016 U.S. LEXIS 4644).
Supreme Court Declines To Stay Senate Subcommittee Subpoena On Backpage.com CEO
WASHINGTON, D.C. - In a Sept. 13 order, the U.S. Supreme Court denied an application for stay filed by Backpage.com LLC CEO Carl Ferrer, in which he sought relief from a District of Columbia Circuit U.S. Court of Appeals order requiring him to comply with a U.S. Senate subcommittee subpoena related to an investigation of online sex trafficking (Carl Ferrer v. Senate Permanent Subcommittee on Investigations, No. 16A236, U.S. Sup.; 2016 U.S. LEXIS 4452).
Backpage CEO Partly Granted Extension To Comply With Senate Subcommittee Subpoena
WASHINGTON, D.C. - Despite finding that Backpage.com LLC Chief Executive Officer Carl Ferrer did not properly invoke common-law privileges to a U.S. Senate subcommittee document subpoena, a District of Columbia federal judge on Sept. 16 granted in part his motion to extend the time to comply with an order enforcing the subpoena in light of his recent efforts to produce the requested documents (Senate Permanent Subcommittee on Investigations v. Carl Ferrer, No. 1:16-mc-00621, D. D.C.).
Senate Subcommittee Urges High Court To Reject Stay Of Backpage CEO's Subpoena
WASHINGTON, D.C. - A District of Columbia Circuit U.S. Court of Appeals order requiring Backpage.com LLC CEO Carl Ferrer to comply with a discovery subpoena related to a sex trafficking investigation should stand, a U.S. Senate subcommittee told the U.S. Supreme Court on Sept. 9, opposing Ferrer's application to stay the order pending high court review (Carl Ferrer v. Senate Permanent Subcommittee on Investigations, No. 16A236, U.S. Sup.).
New Jersey Federal Magistrate Denies Insurance Department Motion To Quash Subpoena
NEWARK, N.J. - A New Jersey federal magistrate judge on Sept. 30 denied the New Jersey Department of Banking and Insurance's motion to quash a subpoena related to the denial of a woman's mental health treatments, saying a confidentiality provision in the state Health Care Quality Act is preempted by the Employee Retirement Income Security Act (Rachel B. v. Horizon Blue Cross Blue Shield of New Jersey, No. 14-cv-01153, D. N.J.; 2016 U.S. Dist. LEXIS 135547).
Seeks To Quash Subpoenas Directed At Personal Life
CHICAGO - A woman bringing cybersquatting, fraud and defamation claims over a website created by her ex-boyfriend filed a motion to quash his discovery subpoenas in Illinois federal court on Oct. 5, asserting that the subpoenas were intended to harass and intrude on her personal life and lack any probative value related to the claims at issue in the case (Emily Mackie, et al. v. Mason Awtry, et al., No. 1:14-cv-09206, N.D. Ill.).
Magistrate Denies Plaintiffs' Request For Experts' Destructive Testing Documents
ORLANDO, Fla. - A federal magistrate judge in Florida on Sept. 6 quashed in part subpoenas served by plaintiffs who claim that homes built by Pulte Home Corp. were built with a defective stucco system on the defendant company's experts, ruling that information concerning destructive testing the experts conducted on certain homes was not subject to the exceptional circumstances exception to the work product doctrine (Shaun Parker Gazzara, et al. v. Pulte Home Corporation, No. 16-cv-657-Orl-31TBS, M.D. Fla.; 2016 U.S. Dist. LEXIS 119867).
7th Circuit: Insurer May Conduct Discovery As To Defendant's Status As Insured
CHICAGO - Illinois law permits an insurer seeking declaratory judgment as to its coverage obligations to conduct discovery for evidence outside the underlying complaints as to whether a claimant qualifies as an insured, a Seventh Circuit U.S. Court of Appeals panel ruled Sept. 22, reversing a trial court's judgment in favor of the claimant (Landmark American Insurance Co. v. Peter Hilger, No. 15-2566, 7th Cir.; 2016 U.S. App. LEXIS 17343).
Claimant Is Permitted To Pursue Discovery Outside Of Administrative Record
LOUISVILLE, Ky. - A Kentucky federal judge on Sept. 29 determined that a disability claimant is entitled to pursue discovery outside of the administrative record on her claim alleging that the disability plan administrator operated under a conflict of interest because the discovery is permitted under the Employee Retirement Income Security Act (Suzette Scott-Warren v. Liberty Life Assurance Company of Boston, No. 14-738, W.D. Ky.; 2016 U.S. Dist. LEXIS 136513).
Reinsurer Says Magistrate Judge's Discovery Orders Are Fundamentally Unfair
SYRACUSE, N.Y. - A reinsurer in a Sept. 19 brief asks a federal court in New York to reconsider its discovery rulings that the reinsurer says require it to produce reserve information while not requiring its reinsured to produce the same category of documentation (Utica Mutual Insurance Company v. Century Indemnity Company, No. 13-cv-00995, N.D. N.Y.).
Insured Must Produce Documents Related To Premium Allocation, Federal Judge Says
INDIANAPOLIS - Insureds seeking coverage for environmental contamination claims must produce information related to their premium allocation in addition to a list of all of the insureds' global coverage policies, an Indiana federal judge said Sept. 27 (Eli Lilly and Co., et al. v. Arch Insurance Co., et al., No. 13-1770, S.D. Ind.; 2016 U.S. Dist. LEXIS 131855).
Diocese's Insurer Asks 2nd Circuit To Reverse Discovery, Breach Of Contract Rulings
NEW YORK - An insurer filed a notice of appeal on Aug. 29 in the Second Circuit U.S. Court of Appeals, seeking reversal of 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 (Hartford Roman Catholic Diocesan Corp. v. Interstate Fire & Casualty Co., No. 16-2999, 2nd Cir.).
Reinsurer, Reinsured Outline Need For Discovery In Reinsurance Dispute
PHILADELPHIA - A reinsurer and its reinsured told a federal court in Pennsylvania on Sept. 7 that they both anticipate the need for discovery in a late notice dispute regarding asbestos-related reinsurance billings (R&Q Reinsurance Company v. St. Paul Fire & Marine Insurance Company, No. 16-cv-01473, E.D. Pa.).
5th Circuit Vacates U Visa Discovery Orders, Remands For New Approach
NEW ORLEANS - The grant of discovery orders seeking visa information for undocumented aliens cooperating in a government investigation of an employer accused of discrimination are too broad and impose an undue burden, a Fifth Circuit U.S. Court of Appeals panel ruled Sept. 27, remanding to the Mississippi trial court "to devise an approach to U visa discovery that adequately protects the diverse and competing interests at stake" (Maria Cazorla, et al. v. Koch Foods of Mississippi, L.L.C., et al., Equal Employment Opportunity Commission v. Koch Foods of Mississippi, L.L.C., No. 15-60562, 5th Cir.; 2016 U.S. App. LEXIS 17565).
Xarelto MDL Judge OKs Bayer Personnel Files For Plaintiffs' Rush-To-Market Theory
NEW ORLEANS - The Louisiana federal judge overseeing the Xarelto multidistrict litigation on Sept. 16 ordered defendant Bayer Corp. to give the plaintiffs two personnel files the plaintiffs say are relevant to their argument that the anticoagulant was rushed to market or that "aggressive compensation schemes" were used to market the drug (In Re: Xarelto [Rivaroxaban] Products Liability Litigation, MDL Docket No. 2591, No. 14-md-2592, E.D. La.; 2016 U.S. Dist. LEXIS 126946).
Discovery Of Facebook Source Code, Tables Denied In Message Scanning Class Action
OAKLAND, Calif. - The plaintiffs in a class action alleging private message (PM) scanning by Facebook Inc. saw three motions to compel discovery denied Oct. 4, with a California federal judge finding the requests for source code, configuration tables and related documents to be overbroad and not sufficiently tailored to the plaintiffs' allegations of privacy violations (Matthew Campbell, et al. v. Facebook Inc., No. 4:13-cv-05996, N.D. Calif.; 2016 U.S. Dist. LEXIS 137936).
Florida Federal Magistrate Defers Discovery Ruling In Lanham Act Case
MIAMI - Efforts by 32 models to obtain, through discovery, the membership list of a defendant "swingers" club were unsuccessful on Oct. 3, when a Florida federal magistrate judge concluded that it remains unclear whether the requested information would assist the plaintiffs in determining the amount of damages available to them on their allegation that the club violated the Lanham Act (Jaime Faith Edmondson, et al. v. Velvet Lifestyles LLC, No. 15-24442, S.D. Fla.; 2016 U.S. Dist. LEXIS 136866).
Federal Circuit: Discovery Sanctions In Patent Case Were Abuse Of Discretion
WASHINGTON, D.C. - A Pennsylvania federal judge abused his discretion when striking a patent infringement defendant's answer and counterclaims as a sanction for failure to comply with two discovery orders, the Federal Circuit U.S. Court of Appeals ruled Sept. 29 (Drone Technologies Inc. v. Parrot S.A., et al., Nos. 15-1892, -1955, Fed. Cir.; 2016 U.S. App. LEXIS 17643).
Oracle Denied New Trial, Judgment In Java Suit Post-Trial Proceedings
SAN FRANCISCO - Oracle America Inc. saw its post-trial motions for judgment as a matter of law (JMOL) and for a new trial denied by a California federal judge Sept. 27, who found that defendant Google Inc. did not engage in any discovery misconduct meriting a new trial (Oracle America Inc. v. Google Inc., No. 3:10-cv-03561, N.D. Calif.).
Judge Orders DuPont To Produce Documents, Denies Request For Sanctions
COLUMBUS, Ohio - The judge presiding over litigation brought against E.I. du Pont de Nemours and Co. for alleged injuries stemming from exposure to perfluorooctanoic acid (known as C8) on Oct. 7 ruled that the company is compelled to supplement its discovery requests but held that it would not be subject to sanctions as had been requested by the plaintiffs (In re E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).
New York Federal Judge Denies Motion For Sanctions In Untaxed Tobacco Suit
NEW YORK - A federal judge in New York on Sept. 14 denied New York City and New York state's motion to impose sanctions on the attorneys representing United Parcel Service Inc. in a tobacco trafficking suit because the judge found that the city and state's failure to produce certain pieces of evidence during discovery was accidental (The State of New York, et al. v. United Parcel Service Inc., No. 15-cv-1136, S.D. N.Y.).
Judge: Deletion Of Secretly Recorded Conversations Does Not Merit Sanctions
SANTA ANA, Calif. - Finding no evidence that a University of California (UC) police chief was on notice of potential litigation related to the surreptitious recording of officers' private conversations, a California federal judge on Sept. 8 denied a plaintiff officer's motion seeking sanctions for what he said was spoliation of essential evidence in the deletion of those recordings (Federated University Police Officers' Association, et al. v. The Regents of the University of California, et al., No. 8:15-cv-00137, C.D. Calif.).
Judge Clears Path For Trial, Won't Invalidate Copyrights Due To Spoliation
MILWAUKEE - Efforts by myriad infringement defendants to invalidate various copyrights as a sanction for the alleged spoliation of evidence were unsuccessful on Sept. 12, when a Wisconsin federal judge denied the request and instead scheduled the case for trial, indicating that no reference to spoliation will appear in the jury instructions (Design Basics LLC v. Campbellsport Building Supply Inc., et al., No. 13-560, E.D. Wis.; 2016 U.S. Dist. LEXIS 123126).
Cosby Permitted To Intervene In Accuser's Deposition In Defamation Suit
PHILADELPHIA - Granting in part a motion to intervene by Bill Cosby, a Pennsylvania federal judge on Oct. 3 ruled that the comedian's counsel may attend the deposition of one of his sexual assault accusers in a related defamation suit, finding that Cosby had an interest in protecting certain details in a 2006 confidential settlement agreement (CSA), while making it clear that the counsel may not interfere with the deposition (Andrea Constand v. Bruce Castor, No. 2:15-cv-05799, E.D. Pa.; 2016 U.S. Dist. LEXIS 136742).
News Groups File FOIA Suit Over FBI's Unlocking Of San Bernardino Shooter's Phone
WASHINGTON, D.C. - Six months after the Federal Bureau of Investigation gained access to the iPhone of one of the San Bernardino, Calif., terrorists via assistance of an unidentified third party, three news organizations filed suit in District of Columbia federal court Sept. 16, seeking to compel the FBI to disclose details about its business transaction with this unknown vendor under the Freedom of Information Act (FOIA), citing public interest and privacy concerns (The Associated Press, et al. v. Federal Bureau of Investigation, No. 1:16-cv-01850, D. D.C.).
Judge Orders FDA To Produce Sovaldi, Harvoni FOIA Documents On Rolling Basis
NEW HAVEN, Conn. - A Connecticut federal judge on Sept. 20 granted summary judgment to the Food and Drug Administration in a Freedom of Information Act (FOIA) lawsuit involving the hepatitis C drugs Sovaldi and Harvoni, but he also ordered the FDA to immediately produce all responsive records it has gathered thus far (Treatment Action Group, et al. v. Food and Drug Administration, et al., No. 15-976, D. Conn.; 2016 U.S. Dist. LEXIS 127877).
HUD May Not Withhold Housing Voucher Data From FOIA Results, Judge Rules
DALLAS - A Texas federal judge on Sept. 13 ruled that the U.S. Department of Housing and Urban Development could not withhold certain household-specific housing voucher recipient information from an advocacy group's Freedom of Information Act (FOIA) request, finding that HUD failed to sufficiently establish a privacy interest in the information that would outweigh the public interest in monitoring HUD's performance of its duties (The Inclusive Communities Project Inc. v. The U.S. Department of Housing and Urban Development, No. 3:14-CV-03333, N.D. Texas; 2016 U.S. Dist. LEXIS 123779).
Judge Finds Documents Properly Withheld, Redacted In Polymer Trade Secrets Case
CHICAGO - A polymer firm properly redacted and withheld from production certain documents related to tests of its competitor's purportedly misappropriated products, an Illinois federal judge ruled Aug. 19, deeming the disputed documents work product and irrelevant to the defendant's deceptive acts counterclaim (PolyOne Corp. v. Yun Martin Lu, et al., No. 1:14-cv-10369, N.D. Ill.).
Microsoft Says Documents Sought By IRS In Audit Are Privileged
SEATTLE - In a Sept. 12 brief filed in Washington federal court, Microsoft Corp. contends that documents sought by the Internal Revenue Service in an enforcement action "are protected by multiple privilege claims" as confidential legal and tax advisory communications (United States of America v. Microsoft Corp., et al., No. 2:15-cv-00102, W.D. Wash.).
D.R. Horton Ordered By Magistrate Judge To Produce List Of Lawsuits
ORLANDO, Fla. - D.R. Horton Inc. must respond to a subcontractor's request for information regarding other lawsuits the builder has been named a party in over allegedly defective stucco, after a federal magistrate judge in Florida on Oct. 3 ruled that the information is relevant (D.R. Horton Inc. v. H&H Stucco & Stone Inc., et al., No. 15-cv-2063-Orl-40TBS, M.D. Fla.; 2016 U.S. Dist. LEXIS 136603).
ICSID Partially Grants Kenya's Request For Discovery In BIT Arbitration
WASHINGTON, D.C. - A tribunal for the International Centre for Settlement of Investment Disputes (ICSID) on Sept. 12 released an order in an arbitration commenced by mining entities against the Republic of Kenya, partially granting Kenya's request for production of documents in the case (Cortec Mining Kenya Limited, Cortec [Pty] Limited and Stirling Capital Limited v. Republic of Kenya, ICSID Case No. ARB/15/29).
Court Orders Discovery Into Jurisdiction Over Law Firm For John Crane's Claims
CHICAGO - An Illinois federal judge on Sept. 1 granted in part a motion to stay discovery pending an asbestos plaintiffs' law firm's motion to dismiss a fraud and conspiracy lawsuit filed by John Crane Inc. (JCI) but allowed discovery on one issue in the dismissal motion - whether the court has jurisdiction over the out-of-state defendants (John Crane Inc. v. Shein Law Center Ltd., et al., No. 16-5913, N.D. Ill.).
Judge: Asbestos Trust Can Object To Honeywell's Bid For Asbestos Claimants' Data
WILMINGTON, Del. - An asbestos trust advisory committee has standing to object to a request by Honeywell International Inc. for access to asbestos claimants' data in nine Chapter 11 cases, a Delaware federal bankruptcy judge held Aug. 29 in denying Honeywell's motion to strike the objection (In re: W.R. Grace & Co., et al., No. 01-01139, D. Del. Bkcy.).
Supreme Court Temporarily Stays Discovery Subpoena On Backpage.com CEO
WASHINGTON, D.C. - One day after the District of Columbia Circuit U.S. Court of Appeals ordered Backpage.com LLC Chief Executive Officer Carl Ferrer to comply with a U.S. Senate subcommittee's discovery subpoena, the U.S. Supreme Court on Sept. 6 temporarily stayed the appeals court's ruling pending Ferrer's appeal to the high court (Carl Ferrer v. Senate Permanent Subcommittee on Investigations, No. 16A236, U.S. Sup.).
D.C. Circuit: Backpage.com CEO Must Comply With Senate Subcommittee Subpoena
WASHINGTON, D.C. - Three weeks after the CEO of online classifieds website operator Backpage.com LLC was granted an emergency stay from a trial court's order requiring him to comply with a U.S. Senate subcommittee's discovery subpoena related to an online sex trafficking investigation, a District of Columbia Circuit U.S. Court of Appeals panel majority on Sept. 2 dissolved the stay and affirmed the order requiring compliance (Senate Permanent Subcommittee on Investigations v. Carl Ferrer, No. 16-5232, D.C. Cir.).
DEA's Subpoena Of Hotmail Account Did Not Violate 4th Amendment, 7th Circuit Rules
CHICAGO - The U.S. Drug Enforcement Agency (DEA) did not violate the Fourth Amendment to the U.S. Constitution in issuing subpoenas on a man's email provider and Internet service provider (ISP) because he had no expectation of privacy in his computer's Internet protocol (IP) address, a Seventh Circuit U.S. Court of Appeals panel found Aug. 17, affirming a district court's denial of the defendant's motion to suppress in a drug possession case (United States of America v. Frank Caira, No. 14-1003, 7th Cir.; 2016 U.S. App. LEXIS 15098).
Judge Orders Interrogatory Of Clinton In FOIA Suit Involving Private Email Use
WASHINGTON, D.C. - A District of Columbia federal judge on Aug. 19 found that a public interest group sufficiently demonstrated that former Secretary of State (SOS) Hillary Clinton has unique firsthand knowledge as to the creation and use of the private email server clintonemail.com to justify the presidential candidate's deposition in a lawsuit over the group's 2013 Freedom of Information Act (FOIA) request on the U.S. Department of State. However, citing the "apex doctrine," the judge ruled that the deposition would occur via written interrogatories (Judicial Watch Inc. v. U.S. Department of State, No. 1:13-cv-01363, D. D.C.).
Panel: County Properly Withheld Emails As Privileged From Records Request
SPOKANE, Wash. - Emails between a county and a state agency pertaining to an environmental enforcement litigation were privileged as attorney work product, a Washington appeals panel found Aug. 9, affirming a trial court's ruling that the emails were exempt from production pursuant to a records request made under Washington's Public Records Act (PRA) (Kittitas County v. Sky Allphin, et al., No. 33241-1-III, Wash. App., Div. 3; 2016 Wash. App. LEXIS 1895).
Only 3 Documents Sought By Insured Must Be Produced, Illinois Federal Judge Says
CHICAGO - An Illinois federal judge on Aug. 18 determined that three of 21 documents sought by an insured in an environmental contamination and chemical exposure coverage lawsuit are not privileged materials and must be produced by the insurer (Velsicol Chemical LLC v. Westchester Fire Insurance Co., No. No. 15-2534, N.D. Ill.; 2016 U.S. Dist. LEXIS 109736).
'Systemic Failure' Waived Law Memo's Protections, New York Justice Affirms
NEW YORK - The "systemic failures" of a company to adequately protect an internal memo in which in-house counsel provides guidance on asbestos litigation constitutes waiver of privilege under New York law, a state court justice held in an opinion posted July 25 (Richard Warren v. Amchem Products Inc., et al., No. 190281/2014, N.Y. Sup., New York Co.).
5th Circuit Affirms No Showing Of Bad Faith Spoliation In Lanx Pedicle Screw Case
NEW ORLEANS - A panel of the Fifth Circuit U.S. Court of Appeals on Aug. 16 affirmed summary judgment in a pedicle screw case, finding that the plaintiff failed to show bad faith spoliation of evidence or fraudulent concealment of the device's intended use from the Food and Drug Administration (Rocky Estes v. Lanx, Incorporated, et al., No. 16-60043, 5th Cir.).
Privacy Suit Plaintiff Sanctioned For Spoliation Of Browsing History Evidence
NEW YORK - A plaintiff alleging violation of the Electronic Communications Privacy Act (ECPA) by a provider of advertising services for Internet error pages should have known of her duty to preserve browsing history and tracking cookie evidence from her computer, a New York federal magistrate judge ruled Aug. 29, granting in part the defendant's motion for sanctions for spoliation (Betsy Feist v. Paxfire Inc., et al., No. 1:11-cv-05436, S.D. N.Y.; 2016 U.S. Dist. LEXIS 116405).
Texas Supreme Court Grants Review Of Discovery Dispute Over Attorney Fees
AUSTIN, Texas - The Texas Supreme Court in a Sept. 2 pronouncement granted relators' petition to review a lower court's ruling compelling them to respond to discovery requests concerning their attorney fees in a multidistrict litigation hailstorm property damage coverage dispute (In Re National Lloyds Insurance Co., Wardlaw Claims Service Inc. and Ideal Adjusting Inc., No. 15-0591, Texas Sup.).
University Awarded Attorney Fees For Discovery Disputes In Stolen Records Suit
ROME, Ga. - Having found that a defendant university established that it was entitled to attorney fees related to a motion to compel discovery responses from the putative class representatives in a negligence suit over stolen student records, a Georgia federal judge on Sept. 2 awarded the university more than $16,000 in costs and fees, ruling that the information and documents sought were relevant to the plaintiffs' claimed damages (Erin Bishop, et al. v. Shorter University Inc., No. 4:15-cv-00033, N.D. Ga.).
Reddit Opposes Label's Petition To Identify Poster Of Twenty One Pilots Single
NEW YORK - In a memorandum filed Aug. 10 in New York state court, Reddit Inc. opposed an effort by Atlantic Recording Corp. to obtain via subpoena identifying information of a Reddit user who purportedly leaked a high-profile song before its release date, with Reddit arguing that the record label failed to demonstrate that it had meritorious claims that justified such preaction disclosure (Atlantic Recording Corp. v. Reddit Inc., No. 156210/2016, N.Y. Sup., New York Co.).
Ashley Madison Operator Calls Data Breach Plaintiffs' Discovery Requests Too Broad
ST. LOUIS - Opposing a motion to compel discovery by the plaintiffs in a putative class action over the 2015 hacking of the Ashley Madison website, the site's operator on Aug. 16 told a Missouri federal court that it already produced everything that falls "within the scope of the 'limited discovery' necessary to decide" a pending motion to compel arbitration (In re Ashley Madison Customer Data Security Breach Litigation, No. 4:15-cv-02669, E.D. Mo.).
Magistrate Judge: Pulte Home Need Not Produce Names, Addresses Of Buyers
ORLANDO, Fla. - A federal magistrate judge in Florida on Aug. 30 denied plaintiffs' motion to compel Pulte Home Corp. to produce the names and addresses of individuals who purchased homes built with allegedly defective stucco, explaining that the requested information is not typically discoverable in the precertification stage (Shaun Parker Gazzara, et al. v. Pulte Home Corporation, No. 16-cv-657-Orl-31TBS, M.D. Fla.; 2016 U.S. Dist. LEXIS 116064).
Nigerian Residents: Chevron Should Not Be Permitted To Compel Discovery
SAN FRANCISCO - A group of Nigerian residents who are suing Chevron Corp. for damages related to the explosion of one of its natural gas rigs on Aug. 5 filed a brief opposing the company's motion seeking to compel the plaintiffs to produce documents that explain its litigation funding to demonstrate the adequacy of the class representative and his counsel (Foster Ogola, et al. v. Chevron Corporation, No. 14-173, N.D. Calif.).
Panel: Lower Court Was Too Harsh In Dismissing Claims Over Discovery Issues
AUSTIN, Texas - The Third District Texas Court of Appeals on Aug. 30 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 9526).
Ship Builder Tells Judge Man's Bid For Discovery Sanctions Unfounded
LOS ANGELES - The court previously considered and rejected a man's claim involving discovery violations, an asbestos defendant told a federal judge in California on Aug. 29 in urging him to deny terminating sanctions. An Aug. 1 ruling in the case denied reconsideration of a ruling allowing strict liability claims arising from exposure aboard a Navy ship to proceed (Victoria Lund, et al. v. Crane Co., et al., No. 13-2776, C.D. Calif.).
Bard IVC Filter MDL Plaintiffs Denied Deposition Of Bard Executive
PHOENIX - The Arizona federal judge overseeing the C.R. Bard inferior vena cava (IVC) filter multidistrict litigation on Aug. 29 denied the plaintiffs' motion to depose a defendant executive, saying the would-be deponent doesn't have unique knowledge that the plaintiffs haven't shows they can't get their answers elsewhere (In Re: Bard IVC Filters Products Liability Litigation, MDL Docket No. 2641, No. 15-md-2641, D. Ariz.).
Sherwin-Williams Seeks Order Quashing Deposition In Lead Paint Lawsuit
MILWAUKEE - The Sherwin-Williams Co., one of the co-defendants in a lead-based paint lawsuit, on Aug. 22 filed an expedited motion for a protective order in Wisconsin federal court, contending that the plaintiff's notice that he wants to videotape a deposition should be quashed because the company has already produced all of its information and has been subjected to "hours upon hours" of cross-examination in previous depositions and trials (Glenn Burton Jr. v. American Cyanamid Company, et al., No. 07-0303, E.D. Wis.).
Reinsured Says Discovery Motion Should Be Denied
SYRACUSE, N.Y. - An insurer told a federal court in New York on Aug. 15 that the court should deny a discovery motion filed by a reinsurer because the discovery deadline has passed (Munich Reinsurance America Inc. v. Utica Mutual Insurance Company, No. 13-cv-00743, N.D. N.Y.).
Federal Magistrate Judge: Insurer Must Produce Files On Medical Claims Reviewers
OWENSBORO, Ky. - A disability insurer must produce information related to its disability medical claims reviewers, a Kentucky federal magistrate judge said Aug. 26, rejecting the insurer's argument in its motion for reconsideration that producing the information would create an undue burden on the insurer (Paulette Owens v. Liberty Life Assurance Company of Boston, No. 15-71, W.D. Ky.; 2016 U.S. Dist. LEXIS 114470
Plaintiffs In C8 Litigation: DuPont's Objection To Case Schedule Is 'Meritless'
COLUMBUS, Ohio - The Ohio residents who sued E.I. du Pont de Nemours and Co. alleging injuries from exposure to perfluorooctanoic acid (known as C8) on Aug. 8 filed a brief in Ohio federal court, arguing that the company's objection to a case management order that calls for the acceleration and selection of trial cases is "meritless" (In re E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).
Insurer: Nonparty Should Not Be Allowed To Intervene In Reinsurance Case
SYRACUSE, N.Y. - An insurer told a federal court in New York on Aug. 19 that another insurer has no right to intervene in a reinsurance dispute with the intention of challenging a motion to seal certain discovery documents (Utica Mutual Insurance Company v. Munich Reinsurance America, Inc., No. 12-cv-00196, N.D. N.Y.).
Hearing Set On Honeywell's Bid For Asbestos Claimant Data In 9 Bankruptcies
WILMINGTON, Del. - A Delaware federal bankruptcy judge will hold a hearing in October on a request by Honeywell International Inc. for access to asbestos claimants' data in nine Chapter 11 cases, including W.R. Grace & Co.'s bankruptcy proceedings, and in the meantime will contact a retired judge about appointing her to referee the dispute, according to an Aug. 23 docket entry (In re: W.R. Grace & Co., et al., No. 01-01139, D. Del. Bkcy.).
Discovery Master: Dismissal Requests For 27 Thalidomide Cases Were Voluntary
PHILADELPHIA - A special discovery master on Aug. 10 recommended that the U.S. District Court for the Eastern District of Pennsylvania allow 27 thalidomide plaintiffs to dismiss their claims against GlaxoSmithKline LLC (GSK) with prejudice because, after a court-ordered investigation that included interviewing all plaintiffs, he found that the plaintiffs want to dismiss (Glenda Johnson, et al. v. SmithKline Beecham Corporation, et al., No. 11-5782, E.D. Pa.).
2nd Circuit: Microsoft Cannot Be Subpoenaed To Produce Irish-Based Emails
NEW YORK - A Second Circuit U.S. Court of Appeals panel on July 14 ruled that a warrant issued under the Stored Communications Act (SCA) cannot be applied extraterritorially to require Microsoft Corp. to produce a customer's emails that were stored on a server in Ireland (In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp.[Microsoft v. United States], No. 14-2985, 2nd Cir.; 2016 U.S. App. LEXIS 12926).
Judge Enforces FAA's Investigatory Subpoenas On Weaponized Drone Owners
NEW HAVEN, Conn. - Judgment was entered in favor of the Federal Aviation Administration (FAA) in Connecticut federal court July 21, granting the agency's motion to enforce subpoenas served in conjunction with its investigation of the owners of two weaponized drones that were featured in online views (Michael Huerta v. Austin Haughwout, et al., No. 3:16-cv-00358, D. Conn.; 2016 U.S. Dist. LEXIS 92866).
After 5th Circuit Ruling, Google Dismisses Suit Over Mississippi AG's Subpoena
JACKSON, Miss. - Three months after the Fifth Circuit U.S. Court of Appeals found a subpoena served on Google Inc. by Mississippi Attorney General Jim Hood to be not ripe for adjudication and an injunction preventing enforcement of the subpoena to be premature, Google on July 13 filed a stipulation of dismissal of its claims against Hood in Mississippi federal court (Google Inc. v. Jim Hood, No. 3:14-cv-00981, S.D. Miss.).
D.C. Circuit Deems DOJ's 'Blue Book' Not Discoverable Under FOIA As Work Product
WASHINGTON, D.C. - A discovery guide created by the U.S. Department of Justice and used by federal prosecutors qualifies as attorney work product, a District of Columbia U.S. Court of Appeals panel ruled July 19, affirming a trial court's finding that the DOJ did not need to produce the manual in response to a Freedom of Information Act (FOIA) request (National Association of Criminal Defense Lawyers v. U.S. Department of Justice Executive Office for United States Attorneys, et al., No. 15-5051, D.C. Cir.; 2016 U.S. App. LEXIS 13141).
7th Circuit Partly Affirms Discovery Sanctions Against Attorney In File-Sharing Suit
CHICAGO - In a July 19 ruling, a Seventh Circuit U.S. Court of Appeals panel affirmed discovery sanctions against an attorney in a "porno-trolling collective" for what it called egregious and obstructive behavior in failing to comply with a trial court's sanctions awards against it in the wake of a dismissed file-sharing lawsuit (Lightspeed Media Corp., et al. v. Anthony Smith, et al., No. 15-2440, 7th Cir.; 2016 U.S. App. LEXIS 13195).
Google, Oracle Spar Over Post-Judgment Sanctions For Financial Info Disclosure
SAN FRANCISCO - In an Aug. 8 opposition brief filed in California federal court, Oracle America Inc. calls a post-trial motion for civil contempt and sanctions by Google Inc. "unprecedented," asserting that the discovery trial statements that purportedly disclosed confidential information "were responsive" to arguments from Google and probing questions from the presiding magistrate (Oracle America Inc. v. Google Inc., No. 3:10-cv-03561, N.D. Calif.).
Sanctions Sought For Destruction Of University Officers' Recorded Conversations
SANTA ANA, Calif. - The president of a university police association filed a motion in California federal court on July 26, seeking evidentiary sanctions against the University of California (UC), asserting that the university willfully deleted recordings at the heart of a privacy class action related to the surreptitious recording of UC police officers' conversations (Federated University Police Officers' Association, et al. v. The Regents of the University of California, et al., No. 8:15-cv-00137, C.D. Calif.).
WWE Moves For Sanctions Against Plaintiffs' Attorneys In Concussion Suit
HARTFORD, Conn. - World Wrestling Entertainment Inc. on Aug. 8 asked a federal judge in Connecticut to impose sanctions against the attorneys for two former wrestlers in a consolidated concussion suit because the attorneys allegedly drafted and signed off on false responses to a court's compulsion order that were submitted to the WWE (Russ McCullough, et al. v. World Wrestling Entertainment Inc., No. 15-1074, D. Conn.).
Judge Finds 2nd Affidavit Does Not Resolve Question Of Materiality
BATON ROUGE, La. - A second affidavit from an insurance company's property product manager did not resolve questions concerning the materiality of misrepresentations that were made on a policy holder's application, a federal judge in Louisiana ruled July 28 in denying Century Surety Co.'s second motion for summary judgment (Century Surety Company v. Bassam Nafel, et al., No. 14-CV-00101-JWD-EWD, M.D. La.; 2016 U.S. Dist. LEXIS 98620).
Attorney In Whirlpool Suit Must Produce Documents Of Prior Class Action Objections
ST. LOUIS - An attorney representing a party objecting to the proposed settlement in a product defects class action must provide responsive discovery documents related to his representation of objecting class members in other suits, a Missouri federal judge ruled July 27 in denying the attorney's motion to quash a subpoena, finding the requested documents to be relevant and amply protected from unnecessary disclosure.(In Re: Jonathan E. Fortman, No. 4:16-mc-00421, E.D. Mo.; 2016 U.S. Dist. LEXIS 97911).
NHL MDL Judge Orders Workers' Comp Insurer To Turn Over Medical Reports
MINNEAPOLIS - The judge overseeing the National Hockey League (NHL) concussion injury multidistrict litigation on July 13 partially granted the players' motion to enforce a subpoena and ordered the league's workers' compensation insurer to produce independent medical exam (IME) records of NHL retirees who had submitted workers' comp claims (In re: National Hockey League Players Concussion Injury Litigation, MDL No. 14-2551, D. Minn.).
Claimant Not Provided With 'Meaningful Opportunity' To Submit Evidence, Panel Says
PORTLAND, Ore. - Because a disability claimant did not have a "meaningful opportunity" to submit additional evidence in support of her claim and because the plan did not explain what "objective medical findings" are, a district court erred in granting the plan's motion summary judgment, the Ninth Circuit U.S. Court of Appeal said July 29 in reversing the district court's ruling (Barbara Scoles v. Intel Corporation Long Term Disability Benefit Plan, No. 13-36167, 9th Cir.; 2016 U.S. App. LEXIS 13819).
Reporter's Motion To Compel Early Disclosure Of DNC Finance Records Denied
PHILADELPHIA - Finding that the Federal Election Campaign Act (FECA) governs the timing for public release of finance records for the July 2016 Democratic National Convention (DNC), a Pennsylvania judge on July 25 denied a reporter's motion to compel early disclosure of the records, finding Pennsylvania's Right-to-Know Law (RTKL) preempted by the federal statute (Dustin Slaughter v. Paul Deegan, et al., No. 1212, Pa. Comm. Pls., Philadelphia Co.).
Lead-Paint Poisoning Plaintiff Says Motion To Compel Documents Should Be Denied
MILWAUKEE - The man who, through his guardian ad litem, sued a group of paint companies alleging injuries from lead-based paint filed a brief in Wisconsin federal court on July 21, contending that the motion to compel responsive documents filed by one of the defendants should be denied because he provided documents in "substantially the same manner that they were produced by co-defendants to the plaintiffs" (Glenn Burton Jr. v. American Cyanamid Company, et al., No. 07-0303, E.D. Wis.).
Magistrate Judge Grants In Part Reinsured's Discovery Motion
NEW YORK - A federal magistrate judge in New York on July 21 granted in part and denied in part a reinsured insurer's motion to compel discovery and for costs in a dispute over certain reinsurance agreements issued in the 1970s (Utica Mutual Insurance Company v. Century Indemnity Company, No. 13-cv-00995, N.D. N.Y.).
Chevron, Plaintiff Debate Discovery Of Funding Documents In Oil Rig Case
SAN FRANCISCO - Chevron Corp. on July 15 filed its reply brief in California federal court, contending that a group of Nigerian residents who are suing the company for damages related to the explosion of one of its natural gas rigs should be compelled to produce documents that explain its litigation funding in order to demonstrate the adequacy of the class representative and his counsel (Foster Ogola, et al. v. Chevron Corporation, No. 14-173, N.D. Calif.).
Depositions Must Be Held Where Witnesses Are Located, Kentucky Federal Judge Says
LOUISVILLE, Ky. - A Kentucky federal judge on July 13 granted a disability insurer's motion for a protective order on depositions after determining that the disability claimant failed to show that special circumstances exist to warrant a departure from the general rule that the party seeking discovery must go where the witnesses are located (Richard E. Davis v. Hartford Life and Accident Insurance Co., No. 14-507, W.D. Ky.; 2016 U.S. Dist. LEXIS 90576).
ICSID Establishes Procedures For Discovery Case Filed Against Costa Rica
WASHINGTON, D.C. - A tribunal for the International Centre for Settlement of Investment Disputes (ICSID) on July 14 released its order in an arbitration commenced by a group of investors against the Republic of Costa Rica, establishing procedures for the production of documents in the case (David R. Aven, et al. v. The Republic of Costa Rica, No. UNCT/15/3, ICSID).
Tobacco Company Says It Has Been Denied Discovery In Assessment Suit
SPOKANE, Wash. - A tobacco company says in an Aug. 2 response to a motion for summary judgment in Washington federal court that it should not be ordered to pay $6.3 million in statutory assessments and late fees under the Fair and Equitable Tobacco Reform Act of 2004 (FERTA) because it has not been given the opportunity to see how the government arrived at the amount of the assessment (United States of America v. King Mountain Tobacco Co. Inc., No. 1:14-cv-03162-RMP, E.D. Wash.).
Insurer Asks To Intervene In Reinsurance Case To Challenge Motion To Seal
SYRACUSE, N.Y. - Century Indemnity Co. moved in a federal court in New York on July 28 to intervene in an asbestos reinsurance billing dispute for the purpose of opposing a reinsured's motion to seal certain documents (Utica Mutual Insurance Company v. Munich Reinsurance America, Inc., No. 12-cv-00196, N.D. N.Y.).
Man Suing Monsanto Says Bifurcating Discovery Would Prejudice Him
SAN DIEGO - The man suing Monsanto Co. in California federal court alleging that he has contracted cancer as a result of exposure to the company's herbicide that contains glyphosate filed a brief on July 8, arguing that, contrary to Monsanto's position, proceeding with full discovery will not burden the company, whereas bifurcating discovery would prejudice him (Emanuel Richard Giglio v. Monsanto Company, No. 15-2279, S.D. Calif.).