Mealey's Discovery

  • February 20, 2018

    Most Emails Sought Are Shielded From Discovery In Pollution Coverage Row

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

  • February 16, 2018

    Fired Employee May Conduct Discovery Into Confidential Data Breach Suit Documents

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

  • February 15, 2018

    Federal Judge Dismisses ERISA Claim For Failure To Provide Discovery

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

  • February 15, 2018

    Microsoft Must Produce Foreign-Stored Emails, DOJ Tells Supreme Court

    WASHINGTON, D.C. — With oral arguments approaching on Feb. 27, the U.S. Department of Justice (DOJ) filed a reply brief on behalf of the federal government with the U.S. Supreme Court Feb. 12, arguing that the presumption against extraterritoriality does not prevent Microsoft Corp. from producing foreign-stored emails under a Stored Communications Act (SCA) warrant because the firm’s compliance with the warrant would occur domestically (United States v. Microsoft Corp., No. 17-2, U.S. Sup.).

  • February 15, 2018

    Federal Judge Won’t Extend Witness, Discovery Deadlines In Asbestos Case

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

  • February 15, 2018

    Rapid-American Denied Protective Order For Insurers’ Subpoenas

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

  • February 13, 2018

    Class, Defendants Debate Jurisdiction And Discovery In Flint Lead Water Case

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

  • February 12, 2018

    Judge Affirms Exclusion Of Unchallenged Deposition Testimony In Asbestos Case

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

  • February 12, 2018

    Abilify MDL Plaintiffs Seek To Sanction Otsuka For Spoliation Of Evidence

    PENSACOLA, Fla. — Plaintiffs in the Abilify multidistrict litigation on Feb. 8 asked the court to sanction defendant Otsuka America Pharmaceutical Inc. for alleged spoliation of evidence (In Re:  Ability [Aripiprazole] Products Liability Litigation, MDL Docket No. 2734, N.D. Fla., Pensacola Div.).

  • February 9, 2018

    Due Diligence Exercised With FOIA Request For Bears Ears Documents, DOI Says

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

  • February 7, 2018

    FOIA Suit Over DOD Subcontractor Plan To Proceed To Bench Trial

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

  • February 7, 2018

    Magistrate Judge Says Discovery Not Warranted In Disability Dispute

    INDIANAPOLIS — An Indiana federal magistrate judge on Feb. 2 denied a disability claimant’s motion to compel discovery on the basis that the claimant failed to meet her burden of proving that the plan operated under a conflict of interest that would entitle her to conduct discovery (Angel Allen v. The Lilly Extended Disability Plan, et al., No. 16-2224, S.D. Ind., 2018 U.S. Dist. LEXIS 17290).

  • February 6, 2018

    7th Circuit Affirms Discovery Ruling In Bone Cement Trade Secret Row

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

  • February 6, 2018

    Agreement’s No-Discovery Rule Found Not Unconscionable By Illinois Appeal Panel

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

  • February 5, 2018

    Protective Order, Compel Motions Partly Granted In Accident Coverage Dispute

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

  • February 2, 2018

    Federal Judge Partially Grants Motion To Compel In Premises Liability Suit

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

  • February 1, 2018

    D.C. Federal Judge: USPTO Satisfied Freedom Of Information Act Request

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

  • January 30, 2018

    Emails Shared With Contractor Are Privileged, Magistrate Judge Rules

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

  • January 30, 2018

    Apple, Qualcomm Debate $25,000-A-Day Discovery Sanction In FTC Antitrust Suit

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

  • January 29, 2018

    Insurer Opposes Reopening Discovery In Reinsurance Case On Class Certification

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