Preview: LexisNexis® Mealey's™ Discovery Legal News
LexisNexis® Mealey's™ Discovery Legal News
Headline Discovery Legal News from LexisNexis®
Supreme Court Finds No Dismissal Mandate For False Claims Act Seal Violations
WASHINGTON, D.C. - In a unanimous ruling, the U.S. Supreme Court on Dec. 6 held that the False Claims Act (FCA) "does not enact so harsh a rule" as mandating dismissal of a relator's lawsuit under the act for a violation of the statute's requirement that the relator's complaint remain sealed, affirming a ruling of the Fifth Circuit U.S. Court of Appeals (State Farm Fire & Casualty Co. v. United States, ex rel. Cori Rigsby, et al., No. 15-513, U.S. Sup.; 2016 U.S. LEXIS 7420).
Lawyer In File-Sharing Case Again Sanctioned For Discovery Violations
EAST ST. LOUIS, Ill. - After an appeals panel partly dismissed sanctions against an attorney as not properly reflecting the harm incurred by a copyright defendant due to the attorney's discovery misconduct and misrepresentations, an Illinois federal judge on Nov. 23 deemed the attorney's actions to be civil contempt and sanctioned him in amount equivalent to the defendant's remaining costs related to the misconduct (Lightspeed Media Corp. v. Anthony Smith, et al., No. 3:12-cv-00889, S.D. Ill.; 2016 U.S. Dist. LEXIS 162981).
Tribe Denies Sanctionable Discovery Conduct By Counsel In ERISA Suit
DETROIT - A Native American tribe filed a brief on Nov. 29 asking a Michigan federal court to deny a motion for sanctions brought against the tribe's counsel by a health insurance provider, arguing that the law firm's contacting of subpoenaed third parties did not violate federal procedure and was not a tactic to delay proceedings in a lawsuit brought under the Employee Retirement Income Security Act (ERISA) (Little River Band of Ottawa Indians, et al. v. Blue Cross Blue Shield of Michigan, No. 2:15-cv-13708, E.D. Mich.).
Panel: Lower Court Abused Discretion By Dismissing Claims Over Discovery Issues
AUSTIN, Texas - The Third District Texas Court of Appeals on Oct. 13 reversed and remanded a lower court decision dismissing the claims of a woman who was involved in an auto accident against a woman insured by an insolvent insurer, finding that the lower court had abused its discretion by dismissing the claims based on a discovery noncompliance (Crystal Bingham Hernandez v. Tiffany Polley, No. 03-15-00384-CV, Texas App., 3rd Dist.; 2016 Tex. App. LEXIS 11116).
Supreme Court Declines To Hear Case On Good Faith Exception To Exclusionary Rule
WASHINGTON, D.C. - In its Dec. 5 order list, the U.S. Supreme Court denied certiorari for a case in which a man convicted of tax evasion, which was based on evidence obtained from a mirror image copy of his computer hard drives, had asked the court to consider whether the good-faith exception to the exclusionary rule applied to evidence obtained via a search warrant issued based on a predicate violation of the Fourth Amendment to the U.S. Constitution (Stavros M. Ganias v. United States of America, No. 16-263, U.S. Sup.).
DePuy Can't Use Video Depositions Only In 3rd Pinnacle Hip Bellwether
DALLAS - DePuy Orthopaedics Inc. will have to find another way to present testimony of five experts in an ongoing Pinnacle hip multidistrict litigation bellwether trial after the presiding judge on Nov. 17 sustained a plaintiffs' objection to having testimony entered by video depositions (In Re: DePuy Orthopaedics, Inc. Pinnacle Hip Implant Products Liability Litigation, MDL Docket No. 2244, No. 11-md-2244, Rosa Metzler, et al. v. DePuy Orthopaedics, Inc., et al., No. 12-2066, Michael Weiser v. DePuy Orthopaedics, Inc., et al., No. 13-3631, Judith Rodriguez v. DePuy Orthopaedics, Inc., et al., No. 13-3938, Linda Standerfer v. DePuy Orthopaedics, Inc., et al., No. 14-1730, Kathleen Davis, et al. v. DePuy Orthopaedics, Inc., et al., No. 15-1767, Marvin Andrews, et al. v. DePuy Orthopaedics, Inc., et al., No. 15-3484,N.D. Texas, Dallas Div.).
Reinsurer Says It May Need To Depose 20 Current And Former Insurance Employees
SYRACUSE, N.Y. - A reinsurer asked a federal court in New York on Nov. 28 to intervene in a number of discovery disputes with an insurer, notably asking that the court allow it to depose up to 20 current and former employees and agents of the insurer (Utica Mutual Insurance Company v. R&Q Reinsurance Company, No. 15-cv-00270, N.D. N.Y.).
Backpage.com CEO Tells D.C. Circuit That Senate Subpoena Chilled Free Speech
WASHINGTON, D.C. - In a Nov. 16 brief appealing a trial court order compelling his compliance with a U.S. Senate subcommittee subpoena seeking information regarding its adult classifieds section, Backpage.com LLC Chief Executive Officer Carl Ferrer tells the District of Columbia U.S. Circuit Court of Appeals that the subpoena violates the First Amendment to the U.S. Constitution and that the trial court incorrectly deemed his common-law privileges waived (Carl Ferrer v. Senate Permanent Subcommittee on Investigations, No. 16-5232 and 16-5274, D.C. Cir.).
Magistrate Judge Allows Construction-Era Discovery; Bid To Defeat Removal Fails
NEW ORLEANS - A man suffering from asbestos-related cancer may inquire into whether asbestos was used in a facility's construction years before his work there but may not amend his complaint to drop claims implicating the Outer Continental Shelf Act (OCSLA), a Louisiana federal judge and magistrate judge held in separate opinions filed Oct. 26 and Oct. 28 (Jesse Frank Sheppard v. Liberty Mutual Insurance Co., et al., No. 16-2401, E.D. La.).
Federal Circuit Denies Mandamus In Discovery Dispute Over Movie Technology Patents
WASHINGTON, D.C. - Finding that the counterclaimant in a dispute over the ownership of certain motion picture technology "fail[ed] to carry the high burden . . . to overturn [a] district court's discovery determination," a Federal Circuit U.S. Court of Appeals panel on Nov. 17 denied the firm's motion for a writ of mandamus for relief from an order compelling production of purportedly privileged documents (In re: Rearden LLC, et al., No. 16-125, Fed. Cir.; 2016 U.S. App. LEXIS 20637).
Freight Company Ordered To Produce Some Documents In Trade Secrets Suit
KANSAS CITY, Kan. - A shipping and logistics firm must provide certain documents in response to discovery requests from a rival company, a Kansas federal magistrate judge ruled Nov. 18, granting in part a motion to compel and finding some of the documents relevant to the movant's trade secrets misappropriation lawsuit against a former employee (XPO Logistics Freight Inc. v. YRC Inc., No. 2:16-mc-00220, D. Kan.; 2016 U.S. Dist. LEXIS 160491).
Judge Adopts Report Ahead Of Trial On Damages For Misappropriation Of Secrets
DETROIT - A Michigan federal judge on Nov. 14 adopted a special master's recommendations in preparation for a trial on damages owed for a company's misappropriation of three technical trade secrets from another company, agreeing that a summary judgment finding that the trade secrets had been removed from the offending software should stand (MSC Software Corporation v. Altair Engineering, Inc., No. 07-12807, E.D. Mich.; 2016 U.S. Dist. LEXIS 156856).
Policyholder Is Entitled To Limited Number Of Underwriting Files
BROOKLYN, N.Y. - A New York federal magistrate judge on Nov. 30 ruled that an insured is entitled to underwriting and claims files for a limited number of its London Market Insurers to determine if nonduplicative documents exists among the policies issued by the London Market Insurers to the insured (Certain Underwriters at Lloyd's, et al., v. National Railroad Passenger Corp., et al., No. 14-4717, E.D. N.Y.; 2016 U.S. Dist. LEXIS 165967).
DuPont Says It Should Not Be Forced To Disclose Documents In C8 Injury Litigation
COLUMBUS, Ohio - E.I. du Pont de Nemours and Co. on Nov. 21 filed a brief in the perfluorooctanoic acid (known as C8) injury multidistrict litigation, arguing that the MDL court should deny the plaintiffs' motion to compel the production of underlying data the company used to create witness summaries for a cancer registry used in the first bellwether trial (In re E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).
Fungal Meningitis MDL Documents Not Available To Criminal Defendant
BOSTON - A criminal defendant in the New England Compounding Center (NECC) fungal meningitis outbreak cannot access discovery material from the personal injury multidistrict litigation, but a co-defendant can share materials he got while he was part of the MDL, a Massachusetts federal judge ruled Nov. 17 (In Re: New England Compounding Pharmacy, Inc. Products Liability Litigation, MDL Docket No. 2419, No. 13-md-2419, D. Mass.).
4th Circuit Finds Judge Erred In Denying Center's Discovery Request
RICHMOND, Va. - A federal judge in Maryland erred when denying a medical center's request for discovery and awarding summary judgment to a builder accused of concealing construction defects, a Fourth Circuit U.S. Court of Appeals panel ruled Nov. 23, finding that the requested discovery could have shown that the builder intentionally withheld information (Civista Health, Inc., et al. v. Gilbane Building Company, et al., No. 15-1975, 4th Cir.; 2016 U.S. App. LEXIS 21077).
Illinois Federal Judge Says Discovery Needed Before Duty To Defend Can Be Decided
CHICAGO - An Illinois federal judge on Nov. 23 granted an insurer's motion seeking discovery in an asbestos coverage dispute after finding that the effect of an underlying settlement agreement on the insurer's duty to defend must first be determined before a decision can be made on the insurer's duty to defend the insured against a number of other underlying asbestos suits (The Hillshire Brands Co. v. Travelers Casualty and Surety Co., No. 15-06859, N.D. Ill.; 2016 U.S. Dist. LEXIS 162386).
Claimant Should Not Be Permitted To Conduct Discovery, Plan Argues
INDIANAPOLIS - A disability claimant should not be permitted to conduct discovery to determine if a plan operated under a conflict of interest because the claimant failed to prove that the discovery sought is necessary, the plan argues in a Nov. 3 response brief filed in Indiana federal court (Donald Fessenden v. Reliance Standard Life Insurance Co., et al., No. 15-370, N.D. Ind.).
Viacom Seeks Judgment On Remanded Intrusion Claim Over Nickelodeon Websites
NEWARK, N.J. - In a Nov. 22 reply brief in New Jersey federal court, Viacom Inc. argues that it is entitled to summary judgment on the sole remaining intrusion upon seclusion claim in a remanded putative class action over purported collection of personally identifiable information (PII) from minors because the evidence clearly shows that it did not collect any "real-world identifying details" about users of its Nickelodeon websites (In Re: Nickelodeon Consumer Privacy Litigation, No. 2:12-cv-07829, D. N.J.).
New York Justice Denies Discovery Attempts In Asbestos-Talc Case
NEW YORK - A couple's evidence requests in an asbestos-talc case seek duplicate production or evidence more appropriately produced in discovery, a New York justice held in an opinion posted Nov. 4 (Keri LoGiudice and Joseph LoGiudice v. American Talc Co., et al., No. 190253/2014, N.Y. Sup., New York Co.).
Plaintiffs Oppose Discovery Protective Order In Facebook Biometrics Suit
SAN FRANCISCO - In a Nov. 28 letter in California federal court, putative class plaintiffs alleging violations of Illinois' Biometric Information Privacy Act (BIPA) by Facebook Inc. argue that a protective order sought by the social network is inappropriate because the discovery items sought are relevant to their claims and to establishing Facebook's knowing violation of the statute (In re Facebook Biometric Information Privacy Litigation, No. 3:15-cv-03747, N.D. Calif.).
Privacy Group Sues FBI, Seeking Files On Biometric Program Under FOIA
WASHINGTON, D.C. - In a Nov. 10 complaint in District of Columbia federal court, Electronic Privacy Information Center (EPIC) alleges violation of the Freedom of Information Act (FOIA) by the Federal Bureau of Investigation, which it says has not produced requested records regarding the bureau's biometric collection program (Electronic Privacy Information Center v. Federal Bureau of Investigation, No. 1:16-cv-02237, D. D.C.).
FOIA Lawsuit Against Corps Of Engineers Transferred To D.C.
SAN FRANCISCO - A California federal judge on Nov. 22 transferred a Freedom of Information Act (FOIA) lawsuit by Friends of the River against the U.S. Army Corps of Engineers to the U.S. District Court for the District of Columbia (Friends of the River v. United States Army Corps of Engineers, et al., No. 16-5052, N.D. Calif.; 2016 U.S. Dist. LEXIS 162149).
U.K. Investigation Material About Paxil Expert Excluded From Suicide Trial
CHICAGO - Evidence about a United Kingdom investigation into plaintiff antidepressant expert witness Dr. David Healy will be excluded from a Jan. 17 suicide trial after an Illinois federal judge on Nov. 21 said the investigation resulted in no action against Healy and is not relevant to his testimony or to the case (Wendy Dolin, et al. v. SmithKline Beecham Corporation, et al., No. 12-6403, N.D. Ill., Eastern Div.).
Judge: Honeywell, Ford Can Use Asbestos Claimants' Data From 9 Bankruptcies
WILMINGTON, Del. - Honeywell International Inc. and Ford Motor Co. can access asbestos claimants' data in nine Chapter 11 cases, but only to investigate fraud in the claims process, and the information cannot be used for lobbying efforts, a Delaware federal bankruptcy judge held Nov. 8 (In re W.R. Grace & Co., et al., No. 01-01139; In re Owens Corning, No. 00-3837; In re Armstrong World Industries, Inc., No. 00-4471; In re USG Corp., No. 01-2094; In re US Minerals Products Company, No. 01-2471; In re Kaiser Aluminum Corp., No. 02-10429; In re ACandS, Inc., No. 02-12687; In re Combustion Engineering, Inc., No. 03-10495; In re The Flintkote Company, No. 04-11300, D. Del. Bkcy.).
High Court Hears Arguments Over Sanctions For False Claims Act's Seal Requirement
WASHINGTON, D.C. - The U.S. Supreme Court heard arguments Nov. 1 from an insurer, the relators in a qui tam action against that insurer, and the U.S. government over what the appropriate sanctions should be when relators in a False Claims Act (FCA) suit violate that statute's requirement that the complaint and filings remain sealed (State Farm Fire & Casualty Co. v. United States, ex rel. Cori Rigsby, et al., No. 15-513, U.S. Sup.).
Dismissal Of Contamination Suit Too Drastic A Sanction, New Jersey Panel Rules
TRENTON, N.J. - A New Jersey judge's decision to dismiss a suit over contamination at a property that formerly housed printing operations as a sanction for the plaintiff's spoliation of evidence was too drastic, a state appeals panel ruled Oct. 31, holding that the lower court failed to consider the possibility of lesser sanctions, such as an adverse inference (18-01 Pollitt Drive LLC v. Harvey Engel, et al., No. A-4833-13T3, N.J. Super, App. Div.; 2016 N.J. Super. Unpub. LEXIS 2360).
Judge Finds Failure To Produce Witness Warrants Sanctions, Not Dismissal
LOS ANGELES - An asbestos defendant's delay in producing a corporate witness despite court orders to do so warrants imposing sanctions and awarding attorney fees, but not dismissal of the case, a federal judge in California held Oct. 24 (Victoria Lund, et al. v. Crane Co., et al., No. 13-2776, C.D. Calif.; 2016 U.S. Dist. LEXIS 147072).
Government Opposes Certiorari In 4th Amendment Exclusionary Rule Exception Case
WASHINGTON, D.C. - In an Oct. 31 brief in the U.S. Supreme Court, the U.S. government opposes a grant of certiorari to a man convicted of tax evasion, arguing that law enforcement properly retained mirrored copies of the man's hard drives via a warrant that was valid per the good-faith exception to the exclusionary rule of the Fourth Amendment to the U.S. Constitution (Stavros M. Ganias v. United States of America, No. 16-263, U.S. Sup.).
D.C. Circuit Stays Enforcement Of Subpoena On Backpage.com CEO Pending Appeal
WASHINGTON, D.C. - A District of Columbia U.S. Circuit Court of Appeals pane. on Oct. 17 stayed an enforcement order requiring Backpage.com LLC Chief Executive Officer Carl Ferrer to comply with a U.S. Senate subcommittee discovery subpoena connected with an investigation of online sex trafficking, finding that he had met the requirements for a stay pending appeal (Senate Permanent Subcommittee on Investigations v. Carl Ferrer, No. 16-5232 and 16-5274, D.C. Cir.).
U.S. Government: 2nd Circuit Erred In Denying Access To Irish-Based Emails
NEW YORK - In an Oct. 13 motion for rehearing, the U.S. government tells the Second Circuit U.S. Court of Appeals that a panel ruling improperly deemed unenforceable a warrant seeking emails stored in a Microsoft Inc. server in Ireland because the provisions of the Stored Communications Act (SCA), under which the warrant was issued, cannot apply extraterritorially (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.).
7th Circuit Panel Reverses Judgment On Spoliation Claims
CHICAGO - A Seventh Circuit U.S. Court of Appeals panel on Oct. 7 held that an Illinois federal judge properly granted summary judgment in a product liability case to a scaffolding manufacturer because there was no evidence in the record that the specific bar that caused a worker's injury was defective but that the grant of summary judgment in favor of the owner of a power plant where the scaffolding was being installed on spoliation claims was improper because the plaintiff never had an opportunity to have the bar, which was lost, analyzed for defects (Matthew Schaefer, et al. v. Universal Scaffolding & Equipment LLC, et al., No. 15-2393, 7th Cir.; 2016 U.S. App. LEXIS 18233).
Federal Judge Clears Asbestos Defendant Of Claims It Destroyed Evidence
LOS ANGELES - Reasonable explanations exist for every apparent contradiction regarding an asbestos defendant's production of evidence and why that production falls short of what a plaintiff could find through discovery, a federal judge in California held Oct. 24 (Victoria Lund, et al. v. Crane Co., et al., No. 13-2776, C.D. Calif.; 2016 U.S. Dist. LEXIS 147070).
Texas High Court: Discovery Order Was Not Tailored To Time, Place Or Subject Matter
AUSTIN, Texas - The Texas Supreme Court on Oct. 28 held that a pretrial court's discovery order in a hailstorm coverage dispute was overbroad because it was not tailored with regard to time, place or subject matter, directing the lower court to vacate the part of its order compelling production of management reports and emails and re-evaluate the issue of sanctions against the insurer (In re National Lloyds Insurance Company, Relator, No. 15-0452, Texas Sup.; 2016 Tex. LEXIS 963).
Insurer Must Produce Attorney Billing Records In Auto Accident Contractual Suit
LAS VEGAS - An insurer's attorney billing records in an underlying lawsuit over auto accident liability claims may be material to contractual and bad faith claims in the related coverage dispute, a Nevada federal magistrate judge ruled Nov. 4, granting in part the claimants' motion to compel (Melinda Booth Dogra, et al. v. Liberty Mutual Fire Insurance Co., No. 2:14-cv-01841, D. Nev.; 2016 U.S. Dist. LEXIS 154121).
Macy's Financial Information Deemed Not Discoverable In Personal Injury Suit
SAVANNAH, Ga. - The plaintiffs in a personal injury suit against Macy's Retail Holdings Inc. are not entitled to chainwide financial information and regional incident reports, a Georgia federal magistrate judge ruled Oct. 24, denying motions to compel such materials (Jacquelyn Orr, et al. v. Macy's Retail Holdings Inc., No. 4:16-cv-00052, S.D. Ga.; 2016 U.S. Dist. LEXIS 147573).
Insurer Asks Court To Deny Motion To Compel Discovery Brought By Reinsurer
NEW HAVEN, Conn. - An insurer told a federal court in Connecticut on Oct. 31 that its reinsurer's motion to compel discovery should fail because the deadline for seeking discovery has passed and the material sought is privileged (Travelers Casualty and Surety Company, f/k/a The Aetna Casualty and Surety Company v. Century Indemnity Company as successor to Insurance Company of North America, No. 16-cv-00170, D. Conn.).
U.S. Government Opposes Preservation Order For Official's Private Email
WASHINGTON, D.C. - The U.S. government on Oct. 31 opposed a liberty advocacy organization's motion to compel an officer of the Office of Science and Technology Policy (OSTP) to preserve emails in his private email account in accord with a Freedom of Information Act (FOIA) request, telling a District of Columbia federal court that the group has not met its burden to demonstrate the preservation order's necessity (Competitive Enterprise Institute v. Office of Science and Technology Policy, No. 1:14-cv-00765, D. D.C.).
Information About Medical Reviewers Is Relevant, Kentucky Federal Judge Says
OWENSBORO, Ky. - A Kentucky federal judge on Oct. 21 rejected a disability insurer's objections to a magistrate judge's discovery order and the insurer's motion for a protective order regarding information about the medical reviewers used by the insurer in evaluating a disability claim because the information sought by the claimant is relevant and not unduly burdensome (Paulette Owens v. Liberty Life Assurance Company of Boston, No. 15-71, W.D. Ky.; 2016 U.S. Dist. LEXIS 145941).
Kentucky Federal Judge Orders Production Of Confidential Documents
LOUISVILLE, Ky. - A Kentucky federal judge in an order filed Oct. 17 directed insurer defendants in a class action challenging the lump-sum payment method used to calculate interest earned by pension plan members' accounts to produce several dozen allegedly privileged documents based on the fiduciary exception to the attorney-client and work product privileges (Jennifer Durand, et al. v. The Hanover Insurance Group Inc., et al., No. 3:07-cv-00130, W.D. Ky.; 2016 U.S. Dist. LEXIS 143064).
Judge Gives Insurers OK To Depose Individuals Regarding Jurisdiction
ATLANTA - A federal judge in Georgia on Oct. 21 granted a pair of insurers' motion to depose certain people to determine if their alleged actions regarding a reinsurer fall under the jurisdiction of the Georgia federal court (Canal Insurance Company, et al. v. Golden Isles Reinsurance Company, Ltd, et al., No. 15-cv-3331, N.D. Ga.).
Texas High Court Postpones Oral Argument In Discovery Dispute Over Attorney Fees
AUSTIN, Texas - Two days before oral argument was scheduled to begin in a dispute over discovery requests concerning relators' attorney fees in a multidistrict litigation hailstorm property damage coverage dispute, the Texas Supreme Court reset oral argument for Feb. 7, according to a Nov. 8 pronouncement (In Re National Lloyds Insurance Co., Wardlaw Claims Service Inc. and Ideal Adjusting Inc., No. 15-0591, Texas Sup.).
Judge Says ASARCO Can Intervene In CERCLA Suit, But Not Seek Discovery
TULSA, Okla. - A federal judge in Oklahoma on Oct. 27 ruled that ASARCO could intervene in a lawsuit brought by the federal government and state of Oklahoma against two companies accused of contributing to contamination at the Tar Creek Superfund site because a proposed settlement between the parties could affect ASARCO's ability to seek contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (United States of America, et al. v. Doe Run Resources Corporation, et al., No. 15-CV-0663-CVE-TLW, N.D. Okla.; 2016 U.S. Dist. LEXIS 148959).
Nonparty In GM Ignition Switch MDL Moves To Quash Subpoena
NEW YORK - The company that designed and manufactured the allegedly faulty initiation switch in General Motors vehicles on Oct. 19 asked the judge overseeing the GM ignition switch multidistrict litigation to quash a subpoena the plaintiffs served to it seeking further discovery (In Re: General Motors LLC Ignition Switch Litigation, No. 1:14-md-0254, S.D. N.Y.).