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Mealey's Discovery

  • June 24, 2019

    Supreme Court Reverses 8th Circuit Ruling On FOIA Confidential Data Disclosure

    WASHINGTON, D.C. — A U.S. Supreme Court majority on June 24 ruled that invoking a Freedom of Information Act (FOIA) exemption regarding the disclosure of trade secrets and confidential information requires only a showing that the information was treated as confidential by the parties involved and does not require a showing of “substantial-competitive-harm” (Food Marketing Institute v. Argus Leader Media, No. 18-481, U.S. Sup., 2019 U.S. LEXIS 4200).

  • June 20, 2019

    FOIA Suit Seeking Kavanaugh Records From DOJ Voluntarily Dismissed

    WASHINGTON, D.C. — In conjunction with a stipulation of voluntary dismissal jointly filed by the U.S. Department of Justice (DOJ) and a U.S. Supreme Court watchdog group, a District of Columbia federal judge on June 17 issued an order dismissing the group’s claims brought against the department under the Freedom of Information Act (FOIA) in its quest to obtain certain records pertaining to Justice Brett M. Kavanaugh (Fix the Court v. U.S. Department of Justice, No. 1:18-cv-01620, D. D.C.).

  • June 19, 2019

    Justice Department Denied Stay Of Theranos Defendant’s SEC Case

    SAN JOSE, Calif. — A California federal judge on June 14 allowed the U.S. Justice Department to intervene in a civil Securities and Exchange Commission lawsuit against former Theranos Corp. President Ramesh “Sunny” Balwani but denied the government’s motion to stay the securities case while Balwani is prosecuted in a separate criminal case (Securities and Exchange Commission v. Ramesh “Sunny” Balwani, No. 18-cv-1603, N.D. Calif., San Jose Div., 2019 U.S. Dist. LEXIS 100335).

  • June 19, 2019

    Production Of Records Ordered In Bitcoin Ownership Dispute; Sanctions Not Issued

    WEST PALM BEACH, Fla. — A Florida federal magistrate judge on June 14 found no reason why the defendant in a dispute over the ownership of a bitcoin fortune could not produce records indicating the amount of bitcoin he had mined, granting a motion to compel such production in compliance with a previous court order but declining to issue related sanctions at present (Ira Kleiman, et al. v. Craig Wright, No. 9:18-cv-80176, S.D. Fla.).

  • June 19, 2019

    IPhone Owners’ Attorney Sanctioned For Disclosing Confidential Apple Documents

    SAN JOSE, Calif. — Two attorneys representing a putative class of iPhone users who sued Apple Inc. for engaging in performance throttling of certain phone models violated a discovery protective order, a California federal judge ruled June 14, finding that one attorney’s actions were likely willful, leading him to grant in part Apple’s motion for sanctions (In re:  Apple Inc. Device Performance Litigation, No. 5:18-md-02827, N.D. Calif., 2019 U.S. Dist. LEXIS 100322).

  • June 17, 2019

    Insurer’s Communications With Counsel Are Protected By Attorney-Client Privilege

    TRENTON, N.J. — In denying an insured’s request to compel production in a directors and officers and corporate liability insurance coverage dispute, a New Jersey federal magistrate judge held June 12 that an insurer’s communications with its coverage counsel after March 20, 2017, are protected by the attorney-client privilege (Innovative Educational Programs, LLC v. Darwin National Assurance Company, No. 17-6886, D. N.J., 2019 U.S. Dist. LEXIS 98579).

  • June 17, 2019

    State Farm Can Depose Nonparty In Fraud Suit, Magistrate Judge Rules

    DETROIT — A federal magistrate judge in Michigan on June 14 denied a motion to quash a subpoena for a deposition filed by the manager of an imaging clinic who is not a party to fraudulent billing scheme lawsuit brought by State Farm Mutual Automobile Co., finding that it would not pose an undue burden (State Farm Mutual Automobile Insurance Company v. Elite Health Centers Inc., et al., No. 16cv13040, E.D. Mich., 2019 U.S. Dist. LEXIS 99897).

  • June 13, 2019

    South Carolina High Court Issues Test For Privilege In Insurance Bad Faith Cases

    COLUMBIA, S.C. — Addressing a certified question in an insurance bad faith action against an insurer for its failure to defend an insured in a construction defect action, the South Carolina Supreme Court on June 12 answered in the negative and held that “denying liability and/or asserting good faith in the answer does not, standing alone,” waive the attorney-client privilege for claim files (Mt. Hawley Insurance Co. v. ContraVest Inc., et al., No. 2018-001170, S.C. Sup., 2019 S.C. LEXIS 53).

  • June 12, 2019

    Law Firm, University Face Possible Discovery Sanctions In Sex Assault Class Action

    WACO, Texas — Noting repeated discovery violations by Baylor University and law firm Pepper Hamilton, which previously represented it, a Texas federal judge on June 7 declined to reconsider a previous order compelling compliance with a discovery subpoena and scheduled a hearing to consider matters of privilege and potential sanctions (Jane Doe 1, et al.  v. Baylor University, No. 6:16-cv-00173, W.D. Texas).

  • June 12, 2019

    Discovery Sanctions Granted In Suit Over Hong Kong Photos’ Copyrights, Trademarks

    OAKLAND, Calif. — A California federal judge on June 7 granted a motion for discovery sanctions to the widow of a photographer embroiled in a lawsuit over her husband’s works’ intellectual property rights, with the judge mostly adopting a magistrate’s report and recommendation related to the defendants’ ongoing failure to comply with their discovery obligations (Rita C. Ho v. Mark Pinsukanjana, et al., No. 4:17-cv-06520, N.D. Calif., 2019 U.S. Dist. LEXIS 96274).

  • June 11, 2019

    2nd Circuit Affirms Exemption Of Surveillance Documents From ACLU’s FOIA Request

    NEW YORK — Several surveillance program documents withheld by government agencies in response to Freedom of Information Act (FOIA) requests by the American Civil Liberties Union  were properly found to be classified or privileged, a Second Circuit U.S. Court of Appeals panel found May 30, affirming a trial court’s ruling and taking the opportunity to clarify some exemptions to the FOIA, 5 U.S.C. § 552 (American Civil Liberties Union, et al. v. National Security Agency, et al., No. 17-3399, 2nd Cir., 2019 U.S. App. LEXIS 16122).

  • June 10, 2019

    11th Circuit Panel Upholds Evidentiary Rulings In Ponzi Scheme-Related Suit

    ATLANTA — A federal district court did not abuse its discretion in denying a request by investors to depose a convicted Ponzi scheme operator because the investors delayed seeking to depose the individual until the discovery deadline had expired, an 11th Circuit U.S. Court of Appeals panel ruled June 6 (Catherine Kerruish, et al. v. Essex Holdings Inc., et al., No. 18-14813, 11th Cir., 2019 U.S. App. LEXIS 17060).

  • June 7, 2019

    Judge Issues Schedule Order, Discovery Plan For Insurer’s Breach Of Contract Case

    DETROIT — A Michigan federal judge on June 4 issued a modified schedule order and joint discovery plan in an insurer’s breach of contract dispute against a reinsurer over reinsurance billings for underlying asbestos claims (Amerisure Mutual Insurance Co. v. Transatlantic Reinsurance Co., No. 18-11966, E.D. Mich.).

  • June 4, 2019

    Taxotere MDL Magistrate Finds No Improper Facebook Posts, Quashes Defense Subpoena

    NEW ORLEANS — A special master in the Taxotere hair-loss multidistrict litigation on May 29 said his in camera review of emails about an alleged request to delete Facebook comments about the chemotherapy drug and hair loss in female patients showed “no improper communications, instructions or guidance provided by counsel” and that the documents are not discoverable by defendant Sanofi-Aventis U.S. LLC (In Re:  Taxotere [Docetaxel] Product Liability Litigation, MDL Docket No. 2740, No. 16-md-2740, E.D. La.).

  • June 4, 2019

    Child Porn Defendant Partly Granted Discovery Requests From NCMEC

    ALBUQUERQUE, N.M. — Concluding that investigative actions by the National Center for Missing and Exploited Children (NCMEC), which led to child pornography charges against a defendant, qualified it as part of the prosecution team, a New Mexico federal judge on May 30 granted in part the defendant’s motion to compel the direction of certain materials from the center, finding some of them to be material to his defense (United States v. Guy Rosenschein, No. 1:16-cr-04571, D. N.M., 2019 U.S. Dist. LEXIS 90607).

  • June 4, 2019

    Panel Denies Fast-Pitch Softball League’s Petition On Discovery Ruling

    CINCINNATI — A fast-pitch softball league failed to demonstrate “a clear and indisputable right to the relief it seeks,” the Sixth Circuit U.S. Court of Appeals held May 21, denying the league’s request to stay a ruling granting defendant franchisees’ motion to compel discovery (In re NPF Franchising LLC,No. 19-3242,6th Cir.,2019 U.S. App. LEXIS 15083).

  • June 3, 2019

    Remedial Measures Over Deleted Emails Granted In Trade Secrets Dispute

    DETROIT — A federal judge in Michigan on May 30 adopted an expert adviser’s report and recommendation filed by a company in a trade secret misappropriation and copyright infringement lawsuit, granting in part and denying in part the company’s request for spoliation sanctions and remedial measures based on a defendant’s destruction of a former employees’ emails during the course of the litigation (J.S.T. Corp. v. Robert Bosch LLC, et al., No. 15-13842, E.D. Mich., 2019 U.S. Dist. LEXIS 90431).

  • May 31, 2019

    Review Of Appellate Court’s Discovery Ruling In Trade Secrets Dispute Sought

    AUSTIN, Texas — Texas Supreme Court review of a state appellate panel’s rendering of judgment and denial of jurisdictional discovery in favor of a defendant on claims that it misappropriated an oil and gas exploration company’s trade secrets is necessary because the company is subject to jurisdiction in Texas, a petitioner argues in a May 28 petition for writ of certiorari filed in the state Supreme Court (Antero Resources Corp. v. EnerQuest Oil & Gas LLC, No. 19-0455, Texas Sup.).

  • May 31, 2019

    Insured Ordered To Produce Additional Documents In Contamination Coverage Suit

    MINNEAPOLIS — Information related to an insured’s communications with its other insurers regarding coverage liabilities for environmental contamination cleanup costs incurred at the insured’s railyard are relevant to the insured’s dispute with another one of its insurers, a Minneapolis federal magistrate judge said May 29 in partially granting the insurer’s motion to  compel the production of interrogatory responses and documents (Soo Line Railroad Co., doing business as Canadian Pacific, v. The Travelers Indemnity Co., No. 18-1989, D. Minn.,  2019 U.S. Dist. LEXIS 90279).

  • May 31, 2019

    Information Related To Auto Insurer’s Litigation Strategy Is Not Discoverable

    TACOMA, Wash. — A Division II Washington Court of Appeals panel on May 29 reversed and remanded a trial court’s ruling that information related to an insurer’s decision to remove an insured’s suit to federal court is discoverable as evidence of the insurer’s alleged bad faith conduct because litigation strategy is “almost never discoverable” and the insured failed to meet the high bar for piercing the attorney-client privilege (Payton O. Hoff v. Safeco Insurance Company of Illinois, No. 50850-8-II, Wash. App., Div. 2, 2019 Wash. App. LEXIS 1337).