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Preview: LexisNexis® Mealey's™ Discovery Legal News

LexisNexis® Mealey's™ Discovery Legal News

Headline Discovery Legal News from LexisNexis®


California High Court: Marshalls Employees' Info Discoverable In Labor Suit
SAN FRANCISCO - A department store did not meet its burden to show that the contact information of employees is not subject to discovery in a wage-and-hour representative suit, the California Supreme Court held July 13, rejecting arguments of overbreadth and privacy violations and vacating the rulings of an appeals court and a trial court (Michael Williams v. The Superior Court of Los Angeles County and Marshalls of CA LLC, No. S227228, Calif. Sup., 2017 Cal. LEXIS 5124).

Magistrate Defines Scope Of Discovery In Google ADEA Lawsuit
SAN JOSE, Calif. - A California federal magistrate judge on July 27 permitted Google Inc. to conduct discovery on a sampling of the plaintiffs who have opted into a collective action alleging discriminatory hiring practices under the Age Discrimination in Employment Act (ADEA), while limiting the amount of discovery Google may seek from each plaintiff (Robert Heath, et al. v. Google Inc., No. 5:15-cv-01824, N.D. Calif.).

Attorney's Estate Entitled To Client Emails In Fees Dispute, Texas Panel Rules
DALLAS - The estate of a deceased attorney was properly granted access to his emails related to a lawsuit at the heart of an unpaid fee dispute, a Texas appeals panel ruled July 25, finding that attorney-client privilege did not bar discovery because the estate stood in the attorney's shoes (In re Cokinos, Boisien & Young, No. 05-16-01331-CV, Texas App., 5th Dist., 2017 Tex. App. LEXIS 6911).

John Doe Virtual Currency User May Intervene In IRS Summons For Users' Records
SAN FRANCISCO - A John Doe customer of a virtual currency firm has established his interest in an Internal Revenue Service enforcement action seeking personal records of the firm's customers, a California federal magistrate judge ruled July 18, granting the Doe's motion to intervene and oppose the IRS's summons (United States v. Coinbase Inc., No. 3:17-cv-01431, N.D. Calif., 2017 U.S. Dist. LEXIS 111756).

FBI Settles FOIA Suit With Privacy Group For $3,000 In Costs, Fees
WASHINGTON, D.C. - The day after the FBI and a privacy rights organization filed a stipulation of dismissal, a District of Columbia federal judge on Aug. 1 adopted the stipulation and dismissed the Freedom of Information Act (FOIA) lawsuit centering on a document request related to the FBI's biometric identification program (Electronic Privacy Information Center v. Federal Bureau of Investigation, No. 1:16-cv-02237, D. D.C.).

Federal Judge Compels Fertilizer Seller To Produce Withheld Discovery
SIOUX CITY, Iowa - An Iowa federal judge on July 7 partially granted a maker and seller of fertilizer's motion to compel a competitor to produce documents that it alleged were improperly withheld but found that the defendants should not be required to produce all of the requested items (Nachurs Alpine Solutions Corp. v. Brian K. Banks, et al., No. 15- 4015, N.D. Iowa, 2017 U.S. Dist. LEXIS 104778).

Dollar General Defends Deposition Of EEOC In Background Check Suit
CHICAGO - The operator of the Dollar General retail chain on July 28 told an Illinois federal court that its requested deposition of the Equal Employment Opportunity Commission is necessary to learn the factual basis for the commission's discrimination claim over the chain's use of employee background checks, asking the court to deny the EEOC's motion for a protective order (Equal Employment Opportunity Commission v. Dolgencorp LLC, No. 1:13-cv-04307, N.D. Ill.).

Insurer Permitted To Depose 2 Individuals Regarding Knowledge Of Policies
INDIANAPOLIS - An Indiana federal judge on July 10 granted an insurer's motion to compel the deposition of two individuals after determining that the insurer is entitled to depose the individuals regarding their knowledge of policies issued to insureds seeking coverage for environmental contamination claims (Eli Lilly and Co., et al. v. Arch Insurance Co., et al., No. 13-1770, S.D. Ind., 2017 U.S. Dist. LEXIS 105833).

Plaintiff Attorney Sanctioned $25,655 For Re-Litigation Of Issues In Enbrel Case
LINCOLN - A Nebraska federal judge on July 17 sanctioned a plaintiff attorney $25,665 for re-litigating settled discovery issues in an Enbrel death case (Jan Vallejo, et al. v. Amgen, Inc., No. 14-50, D. Neb.).

Reinsurer Seeks Discovery Sanctions In Dispute Over Promissory Note With Insurer
LINCOLN, Neb. - An insurer failed to comply with an order requiring complete answers to interrogatories in a dispute concerning sums allegedly owed under a promissory note executed in connection with a reinsurance participation agreement, a reinsurer argues to a Nebraska federal court in a July 12 brief (Applied Underwriters Inc. v. Top's Personnel Inc., No. 15CV90, D. Neb.).

Illinois Court Leaves Stay In Place While Parties Wage Asbestos Discovery Battle
SPRINGFIELD, Ill. - Nothing in the record suggests that a company's appeal of a ruling ordering it to produce index cards it claims contain trade secrets is a frivolous one or that the move is simply a ploy designed to delay trial, an Illinois appeals court held July 26 (Larry Salvatore Sr., et al. v. Cleaver-Brooks, et al., No. 4-17-0244, Ill. App., 4th Dist.).

Judge Grants Motion To Bifurcate Trial And To Hold Bad Faith Issues In Abeyance
LOUISVILLE, Ky. - A Kentucky federal judge on July 18 granted an insurer's motion to bifurcate an insured's bad faith counterclaim from other claims in a hailstorm coverage dispute and to hold the discovery of bad faith issues in abeyance pending the resolution of the other claims (Employers Mutual Casualty Co. v. SG&D Ventures LLC, No. 17-00105, W.D. Ky., 2017 U.S. Dist. LEXIS 111956).

Federal Judge Orders Production Of Reinsurers' General Ledger Info
ATLANTA - A Georgia federal judge on July 19 ordered the production of general ledger information from reinsurers in an insurer's case over alleged fraudulent transfers of reinsurance funds to avoid paying proceeds to the insurer (Canal Insurance Co., et al. v. Golden Isles Reinsurance Company Ltd,, et al., No. 15-03331, N.D. Ga.).

Missouri Federal Judge Grants Limited Discovery In Disability Benefits Suit
ST. LOUIS - A Missouri federal judge on July 11 partially granted a disability claimant's motion for additional discovery, but only as it pertained to a plan administrator's claims-handling guidelines, an administrative services agreement and a limited number of documents from a third-party vendor responsible for conducting independent medical reviews on behalf of the plan administrator (Teresa Heartsill v. Ascension Health Alliance et al., No. 17-155, E.D. Mo., 2017 U.S. Dist. LEXIS 106749).

Workers' Comp Insurer: Discovery Should Be Limited In Suit With Insolvent Insurer
ATLANTA - In a dispute over whether workers' compensation policies insured certain staffing companies for claims also tendered to an insolvent insurer, the workers' compensation insurer argues in a June 27 filing in Georgia federal court that its proposed case management approach should be granted because limited discovery "will suffice to uncover" the facts of the case (Georgia Insurers Insolvency Pool v. Sussex Insurance Co., No. 16-cv-03975, N.D. Ga.).

Court Again Modifies Opinion Declining To Seal Privileged Asbestos Documents
LOS ANGELES - A California appellate court on July 12 modified an opinion declining to seal accidently produced privileged documents discussing the cost-benefit analysis of asbestos products, the second time in less than two weeks that it did so (Elaine Margie Paulus, et al. v. J-MM Manufacturing Company Inc., No. B269904, Calif. App., 2nd Dist., 2017 Cal. App. Unpub. LEXIS 4764).

Judge Unseals Documents Within Crime-Fraud Exception In Asbestos-Tainted Talc Case
NEWARK, N.J. - A judge in New Jersey on July 7 unsealed a pair of special discovery master opinions involving the crime-fraud exception to attorney-client privilege in an asbestos-talc case. The documents remain provisionally sealed so that the parties can appeal the ruling (Audrey Sampson, et al. v. 3M Co., et al., No. MID-L-5384-11AS, N.J. Super., Middlesex Co.).

Reinsurer Opposes Insurer's Motion For Protective Order In Breach Of Contract Suit
PHILADELPHIA - In a breach of contract suit, a reinsurer says in a June 29 filing that a Pennsylvania federal court should deny an insurer's request for a protective order precluding witnesses from testifying to historical reserves and information concerning other reinsurers of asbestos claims (R&Q Reinsurance Co. v. St. Paul Fire & Marine Insurance Co., No. 16-cv-01473, E.D. Pa.).

Discoverability Of Communications With Reinsurers In Bad Faith Cases
By Robert M. Hall I. Introduction When insureds allege bad faith on the part of their insurers, they often seek broad discovery in an attempt to prove their cases. Aside from discovery of reinsurance agreements, which generally is allowed, these efforts can include communications between a ceding insurer and its reinsurer(s) in the hopes of finding a smoking gun. Unsurprisingly, the cases are split on this issue but perhaps the more significant point to be learned from an examination of the selected case law reviewed below is that the outcome of the an effort to obtain such communications can depend on the focus of the request as well as a nuanced response.

Texas High Court Deems Hailstorm MDL Attorney Fee Info Protected As Work Product
AUSTIN, Texas - A Texas Supreme Court majority on June 9 granted an insurer's petition for mandamus in a discovery dispute, finding that a trial court and an appeals court abused their discretion by granting a group of insured's request for billing records from other cases in the same multidistrict litigation because such records are protected from discovery as work product (In Re National Lloyds Insurance Co., Wardlaw Claims Service Inc. and Ideal Adjusting Inc., No. 15-0591, Texas Sup., 2017 Tex. LEXIS 522).

New York Court Agrees: 'Systemic Failure' Waived Asbestos Memo's Protections
NEW YORK - A company waived privilege over a redacted attorney-client memo providing advice involving the asbestos-cement pipe business due to its repeated disclosure concessions, but the company's more strenuous efforts regarding an unredacted version keeps it privileged, a New York appeals court held June 15 (Richard Warren v. Amchem Products Inc., et al., No. 4297, 190281/2014, N.Y. Sup., App. Div., 1st Dept., 2017 N.Y. App. Div. LEXIS 4808).

Illinois Majority Says Insured's Documents May Be Protected
CHICAGO - The First District Illinois Appellate Court on June 30 reversed a trial court's order regarding the production of documents by an insured after determining that the documents may be protected by the attorney-client privilege (Motorola Solutions Inc, v. Zurich Insurance Company, et al., No. 1-16-1465, Ill. App., 1st Dist., Div. 1, 2017 Ill. App. LEXIS 443).

Court Modifies Opinion In Privileged Asbestos Document Case, Denies Rehearing
LOS ANGELES - A California appeals panel on June 30 modified an opinion discussing a company's conduct surrounding privileged document discussing the risk-benefit analysis of asbestos products, but otherwise denied rehearing after refusing to seal the record to protect the document (Elaine Margie Paulus, et al. v. J-MM Manufacturing Company Inc., No. B269904, Calif. App., 2nd Dist.).

Court: Law Firm, Not Lawyer Retained Privilege Over Attorney's Emails
SAN FRANCISCO - A law firm retained privilege over a former asbestos attorney's work product and was not required to obtain his permission before disclosing emails between him and a scientific consulting firm, a California appeals court held June 21 (Tucker Ellis v. The Superior Court of City and County of San Francisco, Evan C. Nelson, No. A148956, Calif. App., 1st Dist., 2017 Cal. App. LEXIS 571).

Insured Failed To Prove Attorney-Client Privilege Was Waived By Insurer
LAS VEGAS - A Nevada federal magistrate judge on June 22 denied an insured's motion to compel an insurer to produce reports and letters from one of its attorneys after determining that the insured failed to prove that the insurer's alleged bad faith conduct warrants a finding that the insurer impliedly waived the attorney-client privilege (Kirsten Spargo v. State Farm Fire and Casualty Company, No. 16-3036, D. Nev., 2017 U.S. Dist. LEXIS 96823).

Judge Denies Compelling Production Of Communications Of Reinsurance Transactions
OWENSBORO, Ky. - A Kentucky federal judge on July 7 denied the government's motion to compel production of all communications in revised privilege logs submitted by an insurer and its insureds concerning taxable years for insurance and reinsurance transactions (United States of America v. Owensboro Dermatology Associates P.S.C., No. 16-00003, United States of America v. Dermatology Property Management LLC, No. 16-00004, United States of America v. Beveled Edge Insurance Co., No. 16-00005, W.D. Ky., 2017 U.S. Dist. LEXIS 105099).

11th Circuit: ACLU Entitled To Jurisdictional Discovery In Records Request Suit
ATLANTA - A trial court erred in not permitting the American Civil Liberties Union of Florida Inc. (ACLU-FL) to conduct discovery that went to the heart of its petition for mandamus over a public records request dispute as well as to the federal jurisdiction of the matter, an 11th Circuit U.S. Court of Appeals panel ruled June 20, remanding the case for discovery (American Civil Liberties Union of Florida Inc., et al. v. City of Sarasota, et al., No. 16-15848, 11th Cir., 2017 U.S. App. LEXIS 10807).

Environmental Plaintiff, United States Stipulate To Delta Smelt Documents
FRESNO, Calif. - The Natural Resources Defense Council (NRDC) and the U.S. Department of the Interior on July 7 stipulated in a California federal court to the production of additional government documents and said they will resolve document admissibility questions through motions and a case challenging adequate federal protection of the threatened Delta smelt fish (Natural Resources Defense Council, et al. v. Ryan Zinke, et al., No. 05-1207, E.D. Calif.).

AP Tells D.C. Circuit That The FBI Conducted An Inadequate FOIA Search
WASHINGTON, D.C. - Appealing a trial court's grant of summary judgment to the Federal Bureau of Investigation and the U.S. Department of Justice (DOJ), The Associated Press and a reporters group argue in a June 29 brief to the District of Columbia Circuit U.S. Court of Appeals that the FBI's responses to their Freedom of Information Act (FOIA) requests were inadequate and ignored information that was clearly responsive (The Reporters Committee for Freedom of the Press, et al. v. Federal Bureau of Investigation, et al., No. 17-5042, D.C. Cir.).

DOJ Asks High Court To Decide If Microsoft Must Produce Foreign-Stored Emails
WASHINGTON, D.C. - Representing the United States in a June 23 petition for certiorari, the U.S. Department of Justice (DOJ) asks the U.S. Supreme Court to consider whether a warrant issued with probable cause under the Stored Communications Act (SCA) can require Microsoft Corp. to produce a customer's emails that are stored in a foreign server (United States of America v. Microsoft Corp. [In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp.], No. 17--2, U.S. Sup.).

Magistrate: Failure To Preserve Browser Histories Negligent, Not Sanctionable
WILMINGTON, N.C. - Although the defendant in a libel suit was negligent in failing to preserve the internet browser histories of its employees for discovery purposes, a North Carolina federal magistrate judge on June 7 found no evidence of intentional conduct that would merit the sanction of adverse jury instructions sought by the plaintiff (Frederic N. Eshelman v. Puma Biotechnology Inc., No. 7:16-cv-00018, E.D. N.C., 2017 U.S. Dist. LEXIS 87282).

Insurer Seeks Discovery Sanctions Against Bank In Reinsurance Dispute
COLUMBIA, S.C. - In a heavily redacted June 19 motion, an insurer asks a South Carolina federal court to impose discovery sanctions on a bank accused of mishandling reinsurance funds because the bank has failed to preserve relevant evidence (Companion Property and Casualty Insurance Co. n/k/a Sussex Insurance Co. v. U.S. Bank National Association v. Redwood Reinsurance Spc. Ltd., et al., No. 15-01300, D. S.C., 2017 U.S. Dist. LEXIS 54182).

Discovery Responses Were Not Deficient, Reinsured Says To Nebraska Federal Court
LINCOLN, Neb. - A reinsured writes in a June 7 letter to a Nebraska federal court that its discovery responses regarding a promissory note and a reinsurance participation agreement were not deficient (Applied Underwriters Inc. v. Top's Personnel Inc., No. 15CV90, D. Neb.).

Embezzlement Victim's Counsel Deemed Not Prosecution Team In Discovery Dispute
SAN FRANCISCO - Although a law firm representing the victim of an embezzlement scheme in a civil suit cooperated with the prosecutors in a criminal case against the embezzler, a California appeals panel on June 5 found that the firm could not be considered part of the prosecution team and, thus, could not be compelled to comply with discovery requests under the requirements of Brady v. Maryland (IAR Systems Software Inc., et al. v. The Superior Court of San Mateo County, et al., No. A149087, Calif. App. 1st Dist., 2017 Cal. App. LEXIS 512).

Discovery Of Non-ACA Plan Information Denied In Insurer's Dialysis Fraud Suit
WEST PALM BEACH, Fla. - Finding that a health insurer's fraud claims related to kidney dialysis were pleaded only for its Patient Protection and Affordable Care Act (ACA) plans, a Florida federal magistrate judge on July 10 denied in part a motion to compel non-ACA plan information from the dialysis provider defendants (UnitedHealthcare of Florida Inc., et al. v. American Renal Associates Holdings Inc., et al., No. 9:16-cv-81180, S.D. Fla.).

Federal Claims Judge Allows Limited Discovery Of U.S. Role In GM Bailout
WASHINGTON, D.C. - A U.S Court of Federal Claims judge on June 14 granted in part a renewed motion for discovery filed by former General Motors Corp. auto dealer franchisees that claim that the U.S. government's action in connection with the GM bailout amounted to a taking of their franchise agreements without just compensation (Colonial Chevrolet Co. Inc., et al. v. United States, No. 1:10-cv-647, Fed. Clms., 2017 U.S. Claims LEXIS 692).

Judge Denies Loan Servicer's Request For Amended Answers On Payments
TAMPA, Fla. - After finding that interrogatories sought by a loan servicer were improper, a Florida federal judge on June 27 denied a request to compel a homeowner, who alleges that the servicer violated the Fair Debt Collection Practices Act (FDCPA) and other laws when it improperly reported that he was delinquent on his loan, to provide amended answers to his previous responses (Joseph C. Suszko v. Specialized Loan Servicing LLC, et al., No. 8:16-cv-2333, M.D. Fla., 2017 U.S. Dist. LEXIS 98788).

Magistrate Judge Denies Motion To Compel In Trade Secrets Lawsuit
CHICAGO - A federal magistrate judge in Illinois on June 20 denied a motion to compel filed by defendants in a misappropriation of trade secrets lawsuit, ruling that the plaintiff has agreed to provide certain information to the defendants as soon as it is located (PolyOne Corp. v. Yun Martin Lu, et al., No. 14-10369, N.D. Ill., 2017 U.S. Dist. LEXIS 94508).

Judge Orders Parties To Turn Over Information In Trade Secrets Lawsuit
OKLAHOMA CITY - Parties in a misappropriation of trade secrets lawsuit are required to provide each other with certain discovery information relating to a former employee's departure from a company and subsequent hiring and duties with a direct competitor, a federal judge in Oklahoma ruled June 16 in granting each party's motion to compel in part (Maxum Petroleum Inc. v. Stephen Hiatt, et al., No. 17-287, W.D. Okla., 2017 U.S. Dist. LEXIS 92719).

Ohio Federal Magistrate Grants Motion To Compel Discovery In Franchise Agreement Dispute
COLUMBUS, Ohio - An Ohio magistrate judge on June 7 granted a plaintiff beer distributor's motion to compel discovery in a franchise agreement dispute between the distributor and brewing companies, saying that information regarding the manner in which the defendant brewing companies have interpreted and/or enforced provisions in their franchise agreement with other distributors is relevant to the case (Southern Glazer's Distributors of Ohio, LLC v. The Great Lakes Brewing Co., et al., No. 2:16-cv-861, S.D. Ohio, Eastern Div.; 2017 U.S. Dist. LEXIS 87365).

Insured Entitled To Documents Related To Underwriting, Federal Magistrate Judge Says
BALTIMORE - A Maryland federal magistrate judge on June 23 determined that an insured is entitled to documents pertaining to an insurer's underwriting review because the documents may help the insured in defending the insurer's misrepresentation claim alleged against the insured in a lead coverage dispute (CX Reinsurance Co. Ltd., f/k/a CNA Reinsurance Co. Ltd. v. B&R Management Inc., et al., No. 15-3364, D. Md., 2017 U.S. Dist. LEXIS 97133).

Judge Orders Reinsurer To Provide Missing Tax Documents To Insurers
ATLANTA - In a case over fraudulent transfers of reinsurance funds, a Georgia federal judge granted in part insurers' motion to compel on June 12, ordering a reinsurer to provide missing tax documents to the insurers (Canal Insurance Co. and Canal Indemnity Co. v. Golden Isles Reinsurance Company Ltd,, et al., No. 15-cv-03331, N.D. Ga.).

Reinsurer Notes Insurer's Inaccuracies, Seeks Discovery Ruling Reconsideration
SYRACUSE, N.Y. - Noting that an insurer's opposition is "riddled with inaccuracies," a reinsurer argues in its June 26 reply brief that a New York federal court should reconsider a discovery ruling in a dispute over asbestos claims or compel the insurer to produce all post-complaint, internal documents involving 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.).

Facebook Seeks Renewed Discovery Stay In Biometrics Class Action
SAN FRANCISCO - Facebook Inc. on June 19 moved to renew a motion to stay discovery in a putative class action alleging that the social network violated Illinois' Biometric Information Privacy Act (BIPA), which it originally filed in California federal court in February, arguing that a pending Ninth Circuit U.S. Court of Appeals ruling could be dispositive of disputed jurisdictional questions and could moot the plaintiffs' discovery requests (In re Facebook Biometric Information Privacy Litigation, No. 3:15-cv-03747, N.D. Calif.).

Appeals Court Dismisses Nationwide's Challenge Of Ruling Denying Discovery Stay
CHILLICOTHE, Ohio - An Ohio appeals panel on May 31 dismissed an appeal from Nationwide Mutual Fire Insurance Co.'s over the denial of its motion to stay discovery in a suit accusing a couple of intentionally setting fire to their home to collect insurance proceeds, finding that the ruling does not require the insurer to produce privileged documents (Nationwide Mutual Fire Insurance Company v. Mark Jones, et al., No. 15CA3709, Ohio App., 4th Dist., 2017 Ohio App. LEXIS 2300).

Vizio, Class Debate 'Tracked Data' Definition In Smart TV Privacy Suit
SANTA ANA, Calif. - In a pair of supplemental memoranda filed June 13 in California federal court, Vizio Inc. and a putative class of owners of its smart TVs argue over the proper definition of the term "tracked data" as it relates to the plaintiffs' wiretap and privacy claims over Vizio's alleged collection of viewer data, as well as to the scope of plaintiffs' discovery requests (In Re: Vizio, Inc., Consumer Privacy Litigation, No. 8:16-ml-02693, C.D. Calif.).

Texas Federal Judge Denies Expedited Discovery Motion In Restaurant Dispute
AUSTIN, Texas - A Texas federal judge on June 19 denied a motion for expedited discovery filed by restaurant franchisors, saying that they will receive the information they seek when the defendant files a written update with the court (Stockade Cos. LLC, et al. v. Kelly Restaurant Group LLC, No. 1:17-cv-143, W.D. Texas, 2017 U.S. Dist. LEXIS 94097).

Oakfabco Must Produce Asset Sale Information To Asbestos Claimants
CHICAGO - Asbestos claimants in the Chapter 11 case of defunct boiler manufacturer Oakfabco Inc. got a boost in their efforts to maximize their potential recoveries from the company June 8 when an Illinois federal bankruptcy judge granted their request to conduct discovery into the debtor's 2009 sale of its remaining operating assets (In re: Oakfabco, Inc., No. 15-27062, N.D. Ill. Bkcy.).

Court Schedules Discovery Into Rapid-American, Insurer Policy Limits Dispute
NEW YORK - A New York federal bankruptcy judge on June 6 issued a scheduling order for fact discovery and identification of expert witnesses in a dispute between Chapter 11 debtor Rapid-American Corp. and one of its insurers over whether a policy has a $7 million or $14 million limit for asbestos liability claims (Rapid-American Corporation, et al. v. Travelers Casualty and Surety Company, et al., No. 15-01095, S.D. N.Y. Bkcy.).

Protective Order For Disability Insurer Granted By New York Federal Magistrate Judge
NEW YORK - A New York federal magistrate judge on June 2 granted a disability insurer's motion for a protective order after determining that the insurer demonstrated that the public disclosure of the information would be valuable to its competitors and place it at a competitive disadvantage (David Robert Aitken v. Aetna Life Insurance Co., No. 16-4606, S.D. N.Y., 2017 U.S. Dist. LEXIS 88181).

Insurer Seeks Protective Order Against Reinsurer In Breach Of Contract Suit
PHILADELPHIA - In a breach of contract dispute, an insurer argues in a June 15 motion that a Pennsylvania federal court should not grant a reinsurer's request to compel the insurer to produce all documents it redacted and, alternatively, should grant a protective order barring the reinsurer from asking questions at depositions about the insurer's reserves and its other reinsurers (R&Q Reinsurance Co. v. St. Paul Fire & Marine Insurance Co., No. 16-cv-01473, E.D. Pa.).

NHL Opposes Attorney Fees For University In Concussion MDL Discovery Dispute
MINNEAPOLIS - The National Hockey League (NHL) on June 5 asked the federal judge overseeing the NHL concussion multidistrict litigation to deny the Boston University Chronic Traumatic Encephalopathy Center (CTE Center)'s motion for attorney fees because the center has not shown that its legal costs would "have been substantially lower if the NHL's motion to compel had been limited only to those requests that were ultimately granted by the Court" (In re: National Hockey League Players Concussion Injury Litigation, MDL No. 14-2551, D. Minn.).

'Proportionality Is The Polestar,' Says Texas High Court In Discovery Dispute
AUSTIN, Texas - The Texas Supreme Court on May 26 found that neither an insurer nor its insureds have a unilateral right to specify the format of discovery under Texas Rule of Civil Procedure 196.4, Texas R. Civ. P. 196.4, denying the insurer's request for mandamus relief without prejudice in a dispute over the discovery submission form for electronically stored information (ESI) (In re State Farm Lloyds, Nos. 15-0903 and 15-0905, Texas Sup., 2017 Tex. LEXIS 482).

Newspaper's FOIA Suit Over Officers' Mug Shots Denied Certiorari
WASHINGTON, D.C. - In its May 22 order list, the U.S. Supreme Court denied a newspaper's petition for certiorari over privacy rights connected to Freedom of Information Act (FOIA) requests for booking photos, letting stand a Sixth Circuit U.S. Court of Appeals ruling that found an FOIA exemption protecting certain "embarrassing" facts from disclosure (Detroit Free Press Inc. v. U.S. Department of Justice, No. 16-706, U.S. Sup., 2017 U.S. LEXIS 3246).

D.C. Circuit Court Says EPA Correctly Withheld Records Obtained From Power Plants
WASHINGTON, D.C. - A panel of the District of Columbia Circuit U.S. Court of Appeals on May 30 ruled that the U.S. Environmental Protection Agency properly withheld production of financial records obtained from a number of power plants in response to a Freedom of Information Act (FOIA) request from three environmental groups, finding that Exemption 4 of the FOIA supersedes a provision of the Clean Water Act (CWA) that would allow disclosure of the information (Environmental Integrity Project, et al. v. U.S. Environmental Protection Agency, No. 16-5109, D.C. Cir., 2017 U.S. App. LEXIS 9332).

D.C. Circuit Dismisses CEO's Appeal Of Senate Subpoena As Moot
WASHINGTON, D.C. - Because a U.S. Senate subcommittee no longer seeks to enforce an investigatory document productions subpoena on LLC, a District of Columbia U.S. Circuit Court of Appeals panel on May 16 dismissed an appeal of an enforcement order brought by the firm's chief executive officer as moot (Senate Permanent Subcommittee on Investigations v. Carl Ferrer, No. 16-5232 and 16-5274, D.C. Cir., 2017 U.S. App. LEXIS 8558).

Google Argues SCA Warrant Cannot Reach Emails Stored Outside United States
SAN FRANCISCO - Contending that the Stored Communications Act (SCA) "does not clearly indicate that it applies extraterritorially," Google Inc. in a May 26 reply brief asks a California federal court to apply de novo review to a magistrate's order denying its motion to quash a warrant issued by the U.S. government seeking certain user emails stored in foreign servers (In the Matter of the Search of Content That is Stored at Premises Controlled by Google, No. 3:16-mc-80263, N.D. Calif.).

Disability Claimant's Suit Stayed To Allow Claimant To Attempt To Enforce Subpoena
LEXINGTON, Ky. - A Kentucky federal judge on May 23 granted a disability claimant's motion to stay to allow the claimant additional time to enforce a subpoena in Massachusetts federal court against a Massachusetts-based company whose services were used by a disability insurer during the handling of the insured's benefits claim (Susan Card v. Principal Life Insurance Co., No. 15-139, E.D. Ky., 2017 U.S. Dist. LEXIS 77819).

Idaho Supreme Court Allows Discovery Of Identity Of Consultants
BOISE, Idaho - In a unanimous decision, the Idaho Supreme Court on May 11 found that a trial court erred by denying a motion to reveal the identity of a non-testifying witness who helped the plaintiffs' expert witness in a medical malpractice suit because the Idaho Civil Rules of Procedure allow for the identity of a non-testifying witness to be disclosed during discovery (Jaymie Quigley, et al. v. Travis Kemp, et al., No. 43725, Idaho Sup., 2017 Ida. LEXIS 129).

10th Circuit Says Discovery Needed On Whether Lender Is Tribal Entity
OKLAHOMA CITY - More information is needed about a payday lending company's ties to an Indian tribe before a court can decide whether a customer's Telephone Consumer Protection Act (TCPA) claims against the company are barred by the tribe's sovereign immunity, the 10th Circuit U.S. Court of Appeals ruled June 1 in vacating dismissal of the customer's claims (Keith Finn v. Great Plains Lending, LLC, No. 16-6348, 10th Cir.; 2017 U.S. App. LEXIS 9649).

Talc Company Accused Of Fraud Doesn't Need Discovery, Asbestos Plaintiffs Argue
NEWARK, N.J. - Discovery into underlying asbestos claims is not warranted in a class action alleging that a talc company destroyed evidence relevant to asbestos claims because the case involves the scheme to protect the company from liability, not the tort actions, plaintiffs told a federal judge in New Jersey on May 12 (Kimberlee Williams, et al. v. BASF Catalysts LLC, et al., No. 11-1754, D. N.J.; see related story this issue).

Judge: Some New Evidence Allowed In Property Contamination Case
BATON ROUGE, La. - A federal judge in Louisiana on May 31 partially granted and partially deferred pretrial evidence motions in a lawsuit brought by homeowners against a developer that they allege is responsible for contaminating their properties with raw sewage, finding that there was no basis to exclude from evidence certain medical documents related to the alleged pollution (Cedar Lodge Plantation LLC, et al. v. CSHV Fairway View I LLC, et al., No. 13-129, M.D. La.; 2017 U.S. Dist. LEXIS 83690).

Xarelto MDL Judge Says Janssen Witness Must Testify By Remote, Live Transmission
NEW ORLEANS - The Louisiana federal judge overseeing the Xarelto multidistrict litigation on May 26 again denied a defense motion to quash a subpoena to have a company witness in New Jersey give live testimony at an upcoming New Orleans bellwether trial via remote transmission (In Re: Xarelto [Rivaroxaban] Products Liability Litigation, MDL Docket No. 2592, Joseph Orr Jr. v. Janssen Pharmaceuticals, Inc., et al., No. 15-3708, E.D. Pa., 2017 U.S. Dist. LEXIS 81047).

Wyoming Seeks To Quash Subpoena In Fracking Case Involving Water Contamination
CHEYENNE, Wyo. - The state of Wyoming on May 3 filed a brief in the U.S. District Court for the District of Wyoming arguing that a subpoena issued for a state employee in a hydraulic fracturing lawsuit brought by a couple who allege that fracking activities tainted their water should be quashed because the plaintiffs are attempting to "forcibly draw" the state into proceedings to which it is not a party (Jeff Locker, et al. v. Encana Oil & Gas USA Inc., No. 14-131, D. Wyo.).

Biopharmaceutical Firm Sanctioned For Using Materials In Other Suits
NEW YORK - A biopharmaceutical company violated a protective order by using discovery materials designated as confidential to file two other lawsuits, a New York federal magistrate judge ruled June 5, granting two motions by the defendant to enforce the protective order and sanctioning the plaintiff (Errant Gene Therapeutics LLC v. Sloan-Kettering Institute for Cancer Research, No. 1:15-cv-02044, S.D. N.Y., 2017 U.S. Dist. LEXIS 85962).

Protective Order Entered For Student Information In Educator's Retaliation Suit
COLUMBUS, Ohio - Pursuant to an agreement between an educator, who is suing her former school district for employment retaliation, and the Ohio Department of Education (ODE), an Ohio federal magistrate judge on May 26 entered a protective order governing how students' information may be submitted in response to the plaintiff's discovery subpoena (Jessica Irving v. Steve Carr, et al., No. 2:16-cv-00728, S.D. Ohio, 2017 U.S. Dist. LEXIS 81159).

Bank Employee's Hard Drive Must Be Produced In Fraud Suit, Magistrate Says
BUFFALO, N.Y. - Even though a lending firm's employee voluntarily provided her hard drive to the FBI, a New York federal magistrate judge on May 25 deemed the drive material and discoverable, granting a motion to compel by a man accused of defrauding the firm (United States of America v. Laurence Savedoff, et al., No. 1:16-cr-00041, W.D. N.Y., 2017 U.S. Dist. LEXIS 81133).

Judge Orders Email Production In Workplace Retaliation Suit, Scolds Parties
SEATTLE - In a June 5 order, a Washington federal judge granted in part a fired employee's motion for production of certain emails from her former supervisor, with the judge taking the opportunity to admonish both sides for the necessity of the motion, which he attributed to the parties' unwillingness to cooperate on discovery (Theresa Ortloff v. Dave Trimmer, et al., No. 2:16-cv-01257, W.D. Wash., 2017 U.S. Dist. LEXIS 85963).

Panel Reverses, Says Tenants In Lead-Paint Case May Compel Discovery From Landlord
NEW YORK - An appeals panel in New York on May 23 reversed a lower court's ruling and concluded that tenants who sued their landlord alleging injuries from exposure to lead-based paint had made a valid request to compel discovery pertaining to potential lead violations in the entire building where their apartment was located (Z.D., by her mother and natural guardian Zaimah A. v. MP Management LLC, No. 3436N, 26043/14, N.Y. Sup., App. Div., 1st Dept.; 2017 N.Y. App. Div. LEXIS 3989).

Indiana Magistrate Judge Orders Discovery Of Franchise Pacts In Restaurant Row
HAMMOND, Ind. - An Indiana magistrate judge on May 10 granted a Texas grill and saloon franchisor's motion to compel discovery of franchise agreements of a western-style restaurant franchisor that is accusing it of trademark and trade dress infringement, but limited it to production of U.S. franchise agreements because requiring production of foreign franchise agreements, if any, would be "disproportional to the needs of the case" (Texas Roadhouse Inc., et al. v. Texas Corral Restaurants Inc., et al., No. 2:16-cv-28, N.D. Ind., 2017 U.S. Dist. LEXIS 71182).

Defendant In Fungal Meningitis Outbreak Gets Access To Government's Trial Exhibits
BOSTON - The United States on May 9 was ordered to turn over a trial binder and PowerPoint to the former head of the New England Compounding Center (NECC), who is challenging his conviction related to a fungal meningitis outbreak linked to drugs compounded at his company (United States of America v. Barry J. Cadden, No. 14-10363, D. Mass.).

Judge Denies Homeowner's Request To Enjoin Destructive Testing
BEAUFORT, S.C. - A federal judge in South Carolina on May 30 denied a woman's request for an injunction barring defendants accused of construction defects from conducting destructive testing on the stucco on her home, noting that the motion to compel the testing was withdrawn (Jacqueline Craft v. South Carolina Plastering, LLC, et al., No. 15-cv-5080-PMD, D. S.C., 2017 U.S. Dist. LEXIS 81816).

Judge Declines To Strike Expert's Interest Analysis For Tribe's ERISA Claims
BAY CITY, Mich. - If an Indian tribe prevails on its claim that its health care plan administrator violated the Employee Retirement Income Security Act by charging hidden fees and pursues prejudgment interest, its expert on calculating the interest amount can offer his analysis at trial, a Michigan federal judge ruled May 16, while also blocking the tribe's request for discovery in the interest rate dispute (Saginaw Chippewa Indian Tribe of Michigan, et al. v. Blue Cross Blue Shield of Michigan, No. 1:16-cv-10317, E.D. Mich., 2017 U.S. Dist. LEXIS 56562).

Judge Partly Grants Motion To Compel Discovery In Dispute Over Employee Fraud
CINCINNATI - An Ohio federal judge on May 9 granted in part insurers' motion to compel discovery in a dispute over fidelity bond coverage for the alleged fraudulent conduct of a bank insured's former loan officer (Fifth Third Bancorp, et al. v. Certain Underwriters at Lloyd's, et al., No. 14-869, S.D. Ohio, 2017 U.S. Dist. LEXIS 70639).

Company: Court Should Compel Discovery Responses In Chemical Injury Case
ST. LOUIS - Doe Run Resources Corp. on May 5 filed a brief in Missouri federal court arguing that the court should compel the plaintiffs in a lawsuit alleging injuries from exposure to toxic chemicals to respond to requests for discovery on substantive liability (A.O.A, et al. v. Doe Run Resources Corporation, No. 11-00044, E.D. Mo.).

Magistrate Judge Allows In Part Documents On Asbestos Losses In Reinsurance Dispute
BOSTON - Granting in part a reinsurer's request for documents relating to an insurer's allocation of an insured's asbestos losses to its reinsurers, a Massachusetts federal magistrate judge on May 26 ordered the insurer to produce facultative certificates for a few similarly situated reinsurers (Lamorak Insurance Co. v. Everest Reinsurance Co., No. 15-cv-13425, D. Mass.).

Federal Judge Refuses To Compel Insurer To Produce Discovery In Coverage Dispute
WILLIAMSPORT, Pa. - A Pennsylvania federal judge on May 12 denied a modular home builder insured's motions to compel discovery and for sanctions in a commercial general liability insurer's declaratory judgment action disputing coverage for underlying faulty workmanship claims against the insured (Westfield Insurance Co. v. Icon Legacy Custom Modular Homes and Icon Legacy, No. 15-00539, M.D. Pa., 2017 U.S. Dist. LEXIS 72624).

Reinsurer Seeks Production Of Redacted Documents On 'Reserves,' 'Other Reinsurance'
PHILADELPHIA - In a breach of contract dispute, a reinsurer in a June 1 motion asks a Pennsylvania federal court to compel an insurer to produce all documents it redacted or withheld concerning "reserves," "reinsurance," "other reinsurance" and "proprietary" information (R&Q Reinsurance Co. v. St. Paul Fire & Marine Insurance Co., No. 16-cv-01473, E.D. Pa.).

Defendants Oppose Request For Discovery Of Tax Returns, Bank Records As To Reinsurer
ATLANTA - In a case over fraudulent transfers of reinsurance funds, various individual defendants in a May 18 brief oppose a request by insurers for a Georgia federal court to compel them to provide tax returns and bank account records pertaining to a reinsurer because the motion is premature (Canal Insurance Co. and Canal Indemnity Co. v. Golden Isles Reinsurance Company Ltd, et al., No. 15-cv-03331, N.D. Ga.).

Reinsurer Seeks Discovery On Post-Complaint Documents Relating To Coverage Issues
SYRACUSE, N.Y. - In an asbestos coverage dispute, a reinsurer on May 15 asked a New York federal court to reconsider a discovery ruling and to compel an insurer to produce all post-complaint, internal documents involving 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.).

Ire Over Depositions In Asbestos Fraud Case 'Baseless,' Judge Told
NEWARK, N.J. - Having "[sown] poisoned seeds" by conducting a decades-long effort to destroy evidence of asbestos liability, a company now attempts to harvest its crop by complaining that class representatives accusing it of fraud do not know the precise impact of that scheme, plaintiffs told a New Jersey federal judge on May 30 in opposing a sanctions motion (Kimberlee Williams, et al. v. BASF Catalysts LLC, et al., No. 11-1754, D. N.J.).