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Preview: LexisNexis® Mealey's™ Discovery Legal News

LexisNexis® Mealey's™ Discovery Legal News

Headline Discovery Legal News from LexisNexis®


Judge Grants Government's Email Search Warrants With Alterations
MONTGOMERY, Ala. - While affirming that a magistrate judge had not erred in denying the U.S. government's warrants to search 15 email accounts, an Alabama federal judge on Sept. 28 ordered that the warrants be issued "[b]ecause the constitutional infirmities can be corrected with moderate alterations" (In re Search of Information Associated with 15 Email Addresses Stored at Premises Owned, Maintained, Controlled or Operated by 1&1 Media, Inc., et al., No. 2:17-cm-03152, M.D. Ala., 2017 U.S. Dist. LEXIS 159535).

Government Seeks Contempt Hearing Over Google's SCA Warrant Noncompliance
SAN JOSE, Calif. - The U.S. government in a Sept. 20 brief tells a California federal court that Google Inc. should be sanctioned for its refusal to comply with a Stored Communications Act (SCA) warrant seeking production of foreign-stored emails, but the government opposes the tech firm's motion for a contempt order, seeking a hearing to determine a sanction appropriate for Google's willful actions (In re: Search of Content That is Stored at Premises Controlled by Google, No. 3:16-mc-80263, N.D. Calif.).

Mental Health Records Deemed Privileged, Nondiscoverable In Harassment Suit
MEMPHIS, Tenn. - A student's records and communications with an on-campus counseling facility are protected by the psychotherapist-patient privilege, a Tennessee federal magistrate judge ruled Oct. 6, denying a college's motion compel in a sexual harassment lawsuit brought by the student (Prianka Bose v. Rhodes College, et al., No. 2:16-cv-02308, W.D. Tenn., 2017 U.S. Dist. LEXIS 166289).

Some Documents In Tribal Recognition Suit Deemed Privileged, Nondiscoverable
CAMDEN, N.J. - Granting in part a motion for a protective order by the New Jersey attorney general, a New Jersey federal magistrate judge on Sept. 19 concluded that many of the documents sought by an Indian tribe that is suing over state tribal recognition policies are protected by the attorney-client and deliberative process privileges (Nanticoke Lenni-Lenape Tribal Nation v, Christopher S. Porrino, No. 1:15-cv-05645, D. N.J., 2017 U.S. Dist. LEXIS 151410).

Magistrate Judge Declines Revisiting Ruling On Documents Between Insurer, Reinsurer
CINCINNATI - In an asbestos coverage dispute, an Ohio federal magistrate judge on Sept. 26 refused to reconsider a prior decision where she declined to conduct an in camera review of an insurer's documents disclosed to third parties other than a reinsurer and a claims adjuster because they are not entitled to protection under the attorney-client privilege (The William Powell Co. v. National Indemnity Co., et al., No. 14-807, S.D. Ohio, 2017 U.S. Dist. LEXIS 157733).

11th Circuit Asks Texas High Court When Discovery Rule Started In Pelvic Mesh Case
ATLANTA - The 11th Circuit U.S. Court of Appeals on Sept. 20 asked the Texas Supreme Court to rule whether a pelvic mesh plaintiff has to know of the defendant's alleged wrongdoing before her claim accrues under the Texas discovery rule (Ann Marie Bergin v. Mentor Worldwide LLC, et al., No. 16-14364, 11th Cir., 2017 U.S. App. LEXIS 18199).

Federal Judge Affirms Contested Appointment Of Asbestos Discovery Master
NEWARK, N.J. - A federal judge in New Jersey on Sept. 21 cast aside defendants' concerns regarding a special master's ability to objectively oversee discovery in a case alleging that a company and its attorneys hid evidence of asbestos contamination of talc products from asbestos plaintiffs (Kimberlee Williams, et al. v. BASF Catalysts LLC., et al., No. 11-1754, D. N.J., 2017 U.S. Dist. LEXIS 154772).

Workers' Comp Insurer Offers Discovery Plan In Suit With Insolvent Insurer
ATLANTA - A workers' compensation insurer proposes a stipulated discovery plan and scheduling order on Oct. 9 with the Georgia federal court in a dispute over whether its policies insured certain staffing companies for claims also tendered to an insolvent insurer (Georgia Insurers Insolvency Pool v. Sussex Insurance Co., No. 16-03975, N.D. Ga.).

Flint Defendants: Discovery Request 'Procedurally Deficient'; Should Be Quashed
DETROIT - A group of defendants in the consolidated litigation involving the lead-contaminated water crisis in the city of Flint, Mich., on Sept. 28 moved to quash the plaintiffs' requests for production of documents, contending that the plaintiffs' requests are "procedurally deficient" (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).

State Farm Defends Motion To Compel Discovery For Computer Fraud Claims
GULFPORT, Miss. - In an Oct. 2 rebuttal brief supporting its motion to compel discovery related to its computer fraud counterclaims in a decade-old false claims suit related to Hurricane Katrina claims, State Farm Fire and Casualty Co. calls its discovery requests "straightforward," while arguing that the counterdefendants failed to show that the requests are burdensome or cover privileged material (United States, ex rel. Cori Rigsby, et al. v. State Farm Fire & Casualty Co., No. 1:06-cv-00433, S.D. Miss.).

Judge: Asbestos Defendant's Database Search Objections Unconvincing
SEATTLE - A company cannot avoid discovery from its database simply by claiming that the resulting search would be "incomprehensible," but a second company's claim that it has no responsive documents in an asbestos case ends any debate, a federal judge in Washington held Sept. 19 (William C. Blosser, et al. v. Ashcroft Inc., et al., No. 17-5243, W.D. Wash.).

Magistrate Judge Compels Discovery In Life Insurance Scheme Involving Reinsurers
BALTIMORE - In an alleged life insurance fraud scheme that shifted debt to reinsurers, a Maryland federal magistrate judge on Sept. 28 ordered a life insurer to submit life insurance policies affected by a cost of insurance (COI) and within the 2004-2015 time range (Richard Dickman, et al. v. Banner Life Insurance Co., No. 16-192, D. Md., 2017 U.S. Dist. LEXIS 161545

Magistrate Judge Orders Rolling Paper Documents To Be Turned Over For Discovery
CHICAGO - A magistrate judge in an Illinois federal court on Sept. 27 ordered a tobacco company to produce documents regarding the design of its rolling papers that are in the possession of one of its French subsidiaries in a trademark infringement countersuit after finding that French law does not entirely preempt the company making those documents available for discovery (Republic Technologies LLC, et al. v. BBK Tobacco & Foods LLP, No. 16 3401, N.D. Ill., 2017 U.S. Dist. LEXIS 158986).

Window Sealant Maker Ordered By Judge To Produce Complaints About Malfunctions
RUTLAND, Vt. - The manufacturer of an allegedly defective window sealant was ordered by a federal judge in Vermont on Oct. 6 to produce complaints the company received about the sealant dripping onto window panes or spreading from its intended location for an 11-year period (H. Hirschmann, Ltd. v. Green Mountain Glass, LLC, et al., No. 15-cv-00034, D. Vt.).

Maryland Federal Judge Denies Motion To Compel Documents Related To Lead-Paint Suit
BALTIMORE - A Maryland federal judge on Sept. 20 denied an insured's motion to compel documents related to its insurer's settlement of a lead-paint liability suit after determining that the documents sought are relevant only if the insurer introduces the settlement to prove damages or liability (CX Reinsurance Company Ltd. v. B&R Management Inc., et al., No. 15-3364, D. Md., 2017 U.S. Dist. LEXIS 155011).

Former EPA Employee: Motion To Compel Deposition 'Baseless' In Roundup MDL
SAN FRANCISCO - A former employee of the Environmental Protection Agency on Sept. 5 filed a brief in the multidistrict litigation in California federal court related to the herbicide Roundup, arguing that he should be awarded money because he incurred "substantial financial fees" when he responded to a "baseless" motion to compel filed by counsel for the plaintiffs (In re: Roundup Products Liability Litigation, No. 2741 MDL, N.D. Calif.).

Protective Order Motions Over Due Diligence Report In Trade Secrets Suit Denied
SAN FRANCISCO - The issuance of protective orders over a due diligence report submitted by a nonparty specialized risk management firm in a misappropriation of trade secrets lawsuit against Uber Technologies Inc. is not warranted because none of the parties seeking the protective orders has provided a sufficient reason to "override the public interest factor" of providing transparency in the report, a federal judge in California ruled Sept. 28 in denying the motions (Waymo LLC v. Uber Technologies Inc., et al., No. 17-0939, N.D. Calif., 2017 U.S. Dist. LEXIS 89174).

Discovery Denied In Challenge To Delta Islands Purchase For California WaterFix
STOCKTON, Calif. - A California state court judge on Sept. 13 said a decision by the Metropolitan Water District of Southern California (MWD) to purchase the Delta Islands was a formal action and denied a motion by challengers to conduct discovery in their mandamus action against MWD (County of San Joaquin v. Metropolitan Water District of Southern California, No. STK-CV-UWM-2016-0003597, Calif. Super., San Joaquin Co.).

Army Corps Doesn't Have To Provide More Administrative Records In Rio Grande Case
ALBUQUERQUE, N.M. - A New Mexico federal judge on Sept. 1 denied a motion by an environmental group to force the U.S. Army Corps of Engineers to provide more documents to the administrative record in a Rio Grande water management lawsuit (WildEarth Guardians v. U.S. Army Corps of Engineers, No. 14-666, D. N.M., 2017 U.S. Dist. LEXIS 141870).

Magistrate Judge Denies Reinsurer's Bid On Discovery For Distribution Of Funds
SAN DIEGO - A California federal magistrate judge on Sept. 22 denied a reinsurer's request for expedited discovery to locate unlawfully distributed funds (Odyssey Reinsurance Co. v. Richard Keith Nagby, et al., No. 16-3038, S.D. Calif., 2017 U.S. Dist. LEXIS 155546).

Suit Seeking Discovery Filed Over Post-Irma Death At Florida Nursing Home
FORT LAUDERDALE, Fla. - A man whose mother died in a Florida nursing home after the air conditioning system broke following Hurricane Irma filed suit on Sept. 15 against the home, its owners and administrative staff, seeking a pure bill of discovery and to preclude the home, its staff and owner from destroying evidence that could lead to who is responsible for his mother's death (Francis L. Lopez v. Rehabilitation Center At Hollywood Hills LLC, et al., No. CACE17016659, Fla. 17th Jud. Cir. Broward Co.).

Judge Adjourns Fraud Trial So Defendant Can Review Recorded Sales Calls
NASHVILLE, Tenn. - A federal judge in Tennessee on Sept. 19 granted a motion filed by a man accused of orchestrating a telemarketing scheme to sell insurance products that were not major medical health insurance, finding that he should be allowed to review recordings of approximately 100,000 sales calls to establish a good faith defense (United States of America v. Timothy Thomas, No. 14-182, M.D. Tenn., 2017 U.S. Dist. LEXIS 152336).

Judge Grants Discovery Request Related To Illegal Amazon, EBay Sales
SAN FRANCISCO - A California federal judge on Sept. 1 granted a motion filed by a distributor of trademarked and copyrighted products and designs that alleges that a retailer violated trademark law and California's unfair competition law (UCL) by selling counterfeited items online, granting its request for limited discovery from online retailers regarding the defendant's sales and aliases (Jessie Steel, Inc. v. Linda Ann Henderson, No. 17-cv-02179, N.D. Calif., 2017 U.S. Dist. LEXIS 142167).

Judge Orders More Discovery Into Jurisdiction In Health Insurance Billing Spat
ALBUQUERQUE, N.M. - A critical care emergency medical transport company is entitled to further jurisdictional discovery into the individuals involved in denying its health insurance claim and where a defendant defends suits, a federal magistrate judge held Sept. 18 (Med Flight Air Ambulance Inc. v. MGM Resorts International, et al., No. 17-246, D. N.M., 2017 U.S. Dist. LEXIS 151265).

AndroGel Plaintiff Firm Sanctioned For Late Notice Of 2nd Stroke
CHICAGO - The Illinois federal judge overseeing the testosterone replacement therapy multidistrict litigation on Sept. 24 sanctioned a plaintiff attorney $1,500 for a second deposition that was required after the firm's delayed learning of a change in its client's health that is relevant to the case (In Re: Testosterone Replacement Therapy Products Liability Litigation, MDL Docket No. 2545, No. 14-1748, Robert Rowley v. AbbVie Inc., No. 15-2760, N.D. Ill.).

Magistrate Orders Discovery Sanctions In Reinsurance Dispute Over Promissory Note
LINCOLN, Neb. - For failing to comply with a discovery order requiring information about a reinsurance participation agreement (RPA) and a promissory note executed, a Nebraska federal magistrate judge ordered an insurer on Sept. 5 to pay $5,500 in sanctions (Applied Underwriters Inc. v. Top's Personnel Inc., No. 15CV90, D. Neb., 2017 U.S. Dist. LEXIS 124136).

Company: Defendants In Trade Secrets Suit Failed To Turn Over Emails, Drawings
PHILADELHIA - Sanctions against a former employee of hydraulic systems designer and assembler Advanced Fluid Systems Inc. (AFS) and his company are warranted because the defendants continue to possess emails and engineering drawings that were required to be turned over to AFS pursuant to previous two court orders, AFS argues in an Aug. 24 motion for sanctions filed in Pennsylvania federal court (Advanced Fluid Systems Inc. v. Kevin Huber, et al., No. 13-3087, M.D. Pa.).

Leaseholders: Companies Cannot Depose Plaintiffs' Attorney About Fracking Leases
COLUMBUS, Ohio - A group of leaseholders in Ohio who contend that a group of hydraulic fracturing companies "systematically" violated their leases and underpaid royalties filed a brief in Ohio federal court on Sept. 29, arguing that the companies failed to meet the burden that permits them to depose the leaseholders' counsel (Zehentbauer Family Land LP v. Chesapeake Exploration LLC, et al., No. 15-02449, N.D. Ohio).

Chemical Injury Plaintiff Must Testify, Company Says; Motion To Compel Filed
SANTA ANA, Calif. - Pacific Gas & Electric Co. (PGE) on Sept. 27 moved to compel one of the plaintiffs in a chemical injury and groundwater contamination lawsuit against company to appear for an oral deposition, contending that the woman is obligated to be present and faces sanctions for having failed to attend at her initial deposition without first obtaining a protective order (Barbara A. Vinson v. Pacific Gas & Electric Company, No. 16-514, C.D. Calif.).

Web Host Ordered To Comply With DOJ Warrant For Anti-Trump Site User Info
WASHINGTON, D.C. - In an Aug. 24 blog posting, web-hosting firm DreamHost LLC reported that a District of Columbia judge that day ordered it to comply with a U.S. Department of Justice (DOJ) warrant seeking information connected with users of a website that was used to organize protests against President Donald Trump (In re: the Search of that Is Stored at Premises Owned, Maintained, Controlled,, or Operated by DreamHost, No. 17 CSW 3438, D.C. Super.).

Microsoft Opposes Certiorari In Suit Over Production Of Foreign-Stored Emails
WASHINGTON, D.C. - An appeals court correctly found that the presumption against extraterritorial application of U.S. laws prevented Microsoft Corp. from being compelled under the Stored Communications Act (SCA) to produce foreign-stored emails in response to a U.S. Department of Justice (DOJ) warrant, Microsoft argues in an Aug. 28 brief asking the U.S. Supreme Court to deny the DOJ's petition for certiorari (United States v. Microsoft Corp. [In re: Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp.], No. 17-2, U.S. Sup.).

Armed Forces Panel Affirms Suppression Of Evidence From IPhone
WASHINGTON, D.C. - Because the search of a serviceman's smartphone occurred without counsel present and as part of an interrogation, a military appellate panel majority on Aug. 30 ruled that the search violated his Fifth Amendment rights, despite his voluntary unlocking of the device, meriting suppression of the evidence obtained (United States v. Edward J. Mitchell, No. 17-0153, Armed Forces App., 2017 CAAF LEXIS 856).

U.S. Government Urges Review Of Email Warrant Denial Despite 11th Circuit Ruling
MONTGOMERY, Ala. - In an Aug. 28 filing in Alabama federal court, the U.S. government states that it "persists in its request" from a July 18 motion to review and vacate a magistrate's order denying warrants for the production of emails related to a tax fraud investigation, arguing that a subsequent 11th Circuit U.S. Court of Appeals ruling on the search of email accounts has no bearing on the present case (In re Search of Information Associated with 15 Email Addresses Stored at Premises Owned, Maintained, Controlled or Operated by 1&1 Media, Inc., et al., No. 2:17-cm-03152, M.D. Ala.).

Insurer Ordered To Produce Claim Documents, Billing Records In Bad Faith Case
HATTIESBURG, Miss. - A federal magistrate judge in Mississippi on Aug. 4 ordered an insurer to produce documents and its former attorney to produce billing records related to the handling of an uninsured/underinsured motorist's claim, finding that the insurer waived its protections under attorney-client privilege and the work product doctrine (Craig Flanagan, et al. v Nationwide Property and Casualty Insurance Company, No. 2:17-cv-33-KS-MTP, S.D. Miss., Eastern Div., 2017 U.S. Dist. LEXIS 123204).

Magistrate Judge Denies Production Of Privileged Docs In Reinsurance Dispute
UTICA, N.Y. - A New York federal magistrate judge on Aug. 21 denied an insurer's request to compel disclosure of certain documents in its dispute with its reinsurer over an underlying $325 million settlement of asbestos claims because "discovery is long closed" (Utica Mutual Insurance Co. v. Fireman's Fund Insurance Co., No. 09-cv-00853, N.D. N.Y.).

4th Circuit Dismisses Woman's Appeal Over Destructive Testing Of Stucco
RICHMOND, Va. - A Fourth Circuit U.S. Court of Appeals on Aug. 9 dismissed a woman's appeal of a federal judge in South Carolina's ruling denying as moot her motion for a protective order to bar a home builder's destructive testing of stucco, finding that discovery rulings are not immediately appealable (Jacqueline L. Craft v. Del Webb Communities, Inc., et al., No. 17-1682, 4th Cir.).

Nationwide Seeks Protective Order, Dismissal In Remanded Data Breach Suit
COLUMBUS, Ohio - On the heels of a motion seeking dismissal of the sole remaining claim against it in a lawsuit over a 2012 data breach, Nationwide Mutual Insurance Co. on Sept. 7 filed a reply brief in Ohio federal court supporting its request for a protective order governing the discovery of asserted sensitive information related to its computer systems and data protection practices (Mohammad S. Galaria, et al. v. Nationwide Mutual Insurance Co., No. 2:13-cv-00118, S.D. Ohio).

3rd Circuit Affirms Synthes Can't Get Grand Jury Testimony For Bone Cement Cases
PHILADELPHIA - Synthes Inc. cannot get access to secret grand jury testimony to impeach testimony in a civil case that company representatives OK'd the off-label use of Norian bone cement in two deadly spinal reconstruction procedures, the Third Circuit U.S. Court of Appeals said Sept. 8 in an opinion affirming a district court's denial (United States of America v. Norian Corporation, et al., No. 16-2240, 3rd Cir., 2017 U.S. App. LEXIS 17382).

Judge Denies Motion To Compel Nonparty's Medical Records In Negligence Suit
PITTSBURGH - A federal judge in Pennsylvania on Aug. 28 denied a couple's motion to compel the medical records of a high-risk baby who was treated on the same day and at the same facility as their child who died because the parents of the deceased child failed to show how the production of those records would demonstrate whether the defendants met the required standard of care (Carissa Peronis, et al. v. United States of America, et al., No. 2:16-CV-1389, W.D. Pa.).

Reinsurer Seeks Cedent's Communications With Another Reinsurer On Trucking Accident
NEW YORK - In a reinsurance coverage dispute for a trucking accident, a reinsurer argues in a July 27 letter that a New York federal court must compel an insurer to produce communications with another of its reinsurers over the same claim because they are relevant to the reinsurance claim (Endurance Assurance Corp. v. Florists' Mutual Insurance Co., et al., No. 16-09955, S.D. N.Y.).

Judge Finds Complex Inquiry Into Medical Rights Assignment Requires Discovery
TRENTON, N.J. - Because it requires a "Russian-nesting-doll-like" inquiry, further discovery is required into whether a surgical spine center's bills were assignable under an insurance policy's "eligible charges" provision, a federal judge in New Jersey held Aug. 22 while rejecting claims that the provider failed to exhaust administrative remedies and seeks duplicative relief (University Spine Center, et al. v. Horizon Blue Cross Blue Shield of New Jersey, et al., No. 16-9253, D. N.J., 2017 U.S. Dist. LEXIS 134021).

Disability Insurer Cannot Add Medical Records To Trial Exhibit, Federal Judge Says
PHOENIX - An Arizona federal judge on Aug. 29 denied a disability insurer's request to allow additional medical records to be added to a claims file for use as a trial exhibit after determining that the request is untimely and would be prejudicial to the disability claimant (Benjamin McClure v. Country Life Insurance Company, et al., No. 15-2597, D. Ariz., 2017 U.S. Dist. LEXIS 138530).

Insured Must Produce Identity Of Documents Sought By Insurer In Environmental Dispute
INDIANAPOLIS - An Indiana federal judge on Sept. 1 determined that an insured must provide its insurer with the identity of a number of compiled documents sought by the insurer and must produce the final summaries used by the insured's corporate representative during a deposition in an environmental contamination coverage dispute (Eli Lilly and Co., et al. v. Arch Insurance Co., et al., No. 13-1770, S.D. Ind., 2017 U.S. Dist. LEXIS 141732).

Insurer Seeks Clarification On Discovery To Reinsurer In Breach Of Contract Suit
PHILADELPHIA - In a breach of contract suit, an insurer moved for clarification on Aug. 11 with a Pennsylvania federal court to confirm that it is to produce only unredacted versions of documents previously produced with redactions based on proprietary material, reserves and "other reinsurance" information and additional documents reflecting the date when the insurer provided first notice of asbestos claims to other reinsurers of relevant policies (R&Q Reinsurance Co. v. St. Paul Fire & Marine Insurance Co., No. 16-1473, E.D. Pa.).

Subway Defendants Must Provide Agreements In Suit Over Sexual Contact With Minor
PIERRE, S.D. - A South Dakota federal magistrate judge on Aug. 31 ordered a Subway franchisee and other defendants accused of allowing one of the franchise owners to have sexual contact with a minor employee to comply with one of two discovery requests seeking defense agreements between the parties (Kerri Lureen, as guardian ad litem of S.L., a minor v. Christopher John Holl, et al., No. 17-4016, D. S.D., 2017 U.S. Dist. LEXIS 140420).

Connecticut Federal Magistrate Judge: Insurer Cannot Redact Claims-Related Data
NEW HAVEN, Conn. - A Connecticut federal magistrate judge on Aug. 31 ordered an insurer to produce a number of requested documents in an asbestos coverage dispute and said that the insurer is permitted to redact only policyholders' information and is not permitted to redact any claims-related data (ITT Corp. and Goulds Pump Inc. v. Travelers Casualty & Surety Co., No. 12-38, D. Conn., 2017 U.S. Dist. LEXIS 140588).

Judge: Company Must Provide Discovery In Dispute Related To Water Leak Damage
SEATTLE - A federal judge in Washington on Aug. 2 granted an insurer's motion to compel discovery and granted a company's motion to continue the opening date of the trial related to a coverage dispute seeking the recovery of costs paid out in an underlying suit brought by a condominium association over damage that stemmed from a water leak (Eagle West Insurance Company v. Watts Regulator Co., et al., No. 16-781, W.D. Wash.; 2017 U.S. Dist. LEXIS 121673).

Federal Judge Orders Nigerian Petroleum Corp. To Produce Documents
NEW YORK - A New York federal judge on Aug. 7 ordered the Nigerian National Petroleum Corp. (NNPC) to produce certain documents in a case in which a Nigerian entity seeks to confirm a $1,779,000,000 arbitral award (Esso Exploration and Production Nigeria Limited et al v. Nigerian National Petroleum Corporation, No. 1:14-cv-08445, S.D. N.Y.).

Panel Reverses Judgment, Remands For More Discovery In Franchise Contract Case
TRENTON, N.J. - A New Jersey appeals panel on Aug. 11 reversed a summary judgment ruling in favor of the defendants in a breach of contract action, saying the plaintiff established numerous genuinely disputed material facts (Falgun Dharia, et al. v. Omi Riddhi Siddi, LLC, et al., No. A-4445-14T3, N.J. Super., App. Div., 2017 N.J. Super. Unpub. LEXIS 2062).

On Remand, Wikimedia Seeks Discovery In Suit Over NSA Upstream Surveillance
BALTIMORE - In the wake of a Fourth Circuit U.S. Court of Appeals ruling reinstating its constitutional challenge to the National Security Agency's (NSA's) upstream surveillance of international communications, Wikimedia Foundation in a Sept. 1 reply brief tells a Maryland federal court that discovery on the merits of its claims should be the next step in the remanded litigation (Wikimedia Foundation v. National Security Agency, et al., No. 1:15-cv-00662, D. Md.).

Builder: Appeal Of Discovery Ruling Does Not Affect Class Certification Issues
BEAUFORT, S.C. - The builders of homes with allegedly improperly installed stucco told a federal judge in South Carolina on Aug. 23 that a woman's class allegations should be stricken because she has missed the deadline for filing her motion for class certification and that her appeal of a discovery ruling has no impact on class certification issues (Jacqueline L. Craft v. South Carolina Plastering, LLC, et al., No. 15-cv-05080-PMD, D. S.C.).

Asbestos Discovery Master Says Alleged Conflicts Don't Warrant Disqualification
NEWARK, N.J. - The special master appointed to oversee discovery issues in a seven-year-old asbestos lawsuit involving allegations of fraud on the part of a talc defendant and its lawyer said in an Aug. 11 letter that a law firm's representation of an unrelated party does not disqualify him from serving (Kimberlee Williams, et al. v. BASF Catalysts LLC., et al., No. 11-1754, D. N.J.).

Federal Magistrate Judge Requests Briefing On Copyright Defenses
SAN DIEGO - A California federal magistrate judge on Aug. 4 directed Conan O'Brien and other copyright infringement co-defendants to file a proposed amended answer and supplemental brief justifying their request to reopen discovery in the case, based upon representations by plaintiff's counsel that an underlying copyright registration will be canceled or corrected (Robert Alexander Kaseberg v. Conan O'Brien, et al., No. 15-1637, S.D. Calif., 2017 U.S. Dist. LEXIS 123703).

Pennsylvania Agency Deems Mayor's Facebook Posts To Be Public Records
HARRISBURG, Pa. - Because a Pennsylvania borough's mayor's public Facebook page was created and maintained in connection with the municipality's official business, the Pennsylvania Office of Open Records (OOR) on Aug. 16 determined that posts and messages connected with the page are public records and subject to disclosure under the state's Right-to-Know Law (RTKL) (Noel Purdy v. Chambersburg, No. AP 2017-1229, Pa. Ofc. Open Rec.).

5th Circuit Says Dismissal Sanction In ERISA Case Outside Judge's Discretion
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Aug. 10 ruled that a Texas federal judge's dismissal sanction in a case involving a self-funded employee benefits plan falls well outside of the bounds of her broad discretion in adjudicating discovery matters because it is not evident that a medical service provider refused to comply with two discovery orders, much less did so willfully or in bath faith (Oprex Surgery [Baytown], L.P. v. Sonic Automotive Employee Welfare Benefit Plan, No. 16-20734, 5th Cir., 2017 U.S. App. LEXIS 14811).

Bank Opposes Insurer's Discovery Sanctions Bid In Reinsurance Dispute
COLUMBIA, S.C. - A bank argues in an Aug. 7 opposition brief that a South Carolina federal court should not impose an insurer's discovery sanctions in a dispute over the mishandling of reinsurance funds because it has appropriately preserved and collected electronically stored information (Companion Property and Casualty 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).

10th Circuit Panel: Denial Of Jurisdictional Discovery Was Abuse Of Discretion
DENVER - A 10th Circuit U.S. Court of Appeals panel on Aug. 16 reversed and remanded a case in which a Kansas federal judge dismissed a pension fund's complaint against two corporations under the Multiemployer Pension Plan Amendments Act for withdrawal liability because both corporations were domiciled in the Republic of Ireland, saying the judge abused his discretion in not allowing jurisdictional discovery (GCIU-Employer Retirement Fund, et al. v. Coleridge Fine Arts, et al., No. 16-33007, 10th Cir., 2017 U.S. App. LEXIS 15683).

With Jurisdiction Lacking, Writ Compelling Discovery Denied In Patent Case
WASHINGTON, D.C. - An appeal by a patent owner seeking to compel discovery in an infringement action governed by the Biologics Price Competition and Innovation Act of 2009 (BPCIA), Pub. L. No. 111-148, 124 Stat. 119, 804 (2010), was dismissed Aug. 10 by the Federal Circuit U.S. Court of Appeals, which deemed jurisdiction over the dispute lacking under the collateral order doctrine (Amgen Inc. v. Hospira Inc., No. 16-2179, Fed. Cir.).

Jurisdictional Discovery Proper In Trade Secrets Suit, Federal Judge Rules
SHERMAN, Texas - Expedited jurisdictional discovery is warranted in a misappropriation of trade secrets lawsuit filed by a health and wellness direct sales company against its competitor and certain of its employees because the individual defendants are alleged to have had contacts with the state of Texas, a federal judge in Texas ruled Aug. 22 in granting the company's motion (AdvoCare International LP v. Modere Inc., et al., No. 17-0194, E.D. Texas, 2017 U.S. Dist. LEXIS 133613).

Citing U.S. Supreme Court, Judge Allows Discovery On Jurisdiction In Asbestos Case
WILMINGTON, Del. - Citing the recent changes to how courts handle jurisdiction wrought by the U.S. Supreme Court's Bristol-Myers Squibb Co. v. Superior Court of California ruling, a Delaware judge on Aug. 30 granted an asbestos plaintiff additional time to conduct discovery into the issue of personal jurisdiction over a Michigan company (Derry L. Middleton, et al. v. McCord Corp., et al., No. N14C-05-261 ASB, Del. Super., New Castle Co.).

Texas Federal Judge Orders New Deposition In Patent Case
SHERMAN, Texas - A plaintiff will be permitted another opportunity to depose the author of a patent opinion letter at the expense of an infringement defendant "as a remedy" for conduct by defense counsel, a Texas federal judge ruled Aug. 11 (Tech Pharmacy Services LLC v. Alixa Rx LLC, No. 15-766, E.D. Texas, 2017 U.S. Dist. LEXIS 127965).

Attorney: Revive Case Seeking To Unseal Asbestos Client-Coaching Deposition
DALLAS - A motion seeking to unseal Russell Budd's 1997 deposition involving a memo allegedly showing his law firm coaching clients for their own depositions should proceed to a ruling on the merits, an attorney told a Texas appeals court on Sept. 5 (Christine Cole Biederman v. Beverly Jean Brown, et al., No. 01-07-00263-CV, Texas App., 1st Dist.).

Judge Bars Wal-Mart's Use Of Discovery Obtained From Deposition Of Physician
TRENTON, N.J. - A New Jersey federal judge on Aug. 8 granted a plaintiff's motion to strike and bar Wal-Mart Stores East Inc.'s use of the deposition transcript and documents obtained as a result of a March 28 deposition of the plaintiff's physician, but refused to disqualify Wal-Mart's counsel for conducting the deposition (Patricia Hone v. Wal-Mart, Inc., No. 14-1006, D. N.J., 2017 U.S. Dist. LEXIS 124736).

Rapid-American Protests Insurers' Subpoenas To Claims-Processing Facilities
NEW YORK - Chapter 11 debtor Rapid-American Corp. and the asbestos claimants in its case asked a New York federal bankruptcy judge on Aug. 15 to stop the debtor's insurers from enforcing subpoenas they issued to six asbestos claims-processing facilities, saying the subpoenas are "facially overbroad and seek material that is wholly irrelevant" to the issues in an insurance coverage adversary action (Rapid-American Corporation, et al. v. Travelers Casualty and Surety Company, et al., No. 15-01095, S.D. N.Y. Bkcy.).

Asbestos Trusts Seek To Protect Claimants' Data From Companies' Fraud Probe
WILMINGTON, Del. - A bankruptcy court properly placed limits on Honeywell International Inc. and Ford Motor Co.'s access to asbestos claimants' data from nine asbestos bankruptcy trusts, but it should have gone further and denied access altogether based on the "improper nature" of the companies' purpose for seeking access, the trusts argue in an Aug. 1 brief on appeal in Delaware federal court (In re: Motions Seeking Access to 2019 Statements, No. 16-1078, D. Del.).

Judge Issues Order On Sealing Docs In Workers' Comp Insurer, Insolvent Insurer Dispute
ATLANTA - In a dispute over whether workers' compensation policies insured certain staffing companies for claims also tendered to an insolvent insurer, a Georgia federal judge issued a protective order on Aug. 28 on the procedures for sealing confidential materials (Georgia Insurers Insolvency Pool v. Sussex Insurance Co., No. 16-3975, N.D. Ga.).

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.