Mealey's Discovery

  • July 02, 2020

    Documents Created After Collapse Claim Was Denied Are Protected, Judge Says

    CHARLESTON, W.Va. — A West Virginia federal magistrate judge on June 30 said that documents created by an insured after a property insurer denied coverage for the collapse of the insured’s silo are protected because the documents were prepared in anticipation of litigation (Ramaco Resources LLC v. Federal Insurance Co., et al., No. 19-703, S.D. W.Va., 2020 U.S. Dist. LEXIS 113813).

  • July 01, 2020

    Avandia MDL Judge Chides, But Won’t Sanction 2 Plaintiff Attorneys For Bad Faith

    PHILADELPHIA — The Pennsylvania federal judge overseeing the Avandia multidistrict litigation on June 26 said that while there are bases for criticizing the conduct of counsel for a third-party payer plaintiff, defendant GlaxoSmithKline PLC (GSK) did not prove by clear and convincing evidence that the payer’s two attorneys acted in bad faith so as to justify sanctions against them (Allied Services Division Welfare Fund v. GlaxoSmithKline, No. 09-730, E.D. Pa.).

  • June 30, 2020

    Judge Sanctions Attorneys More Than $28,000 For Discovery Violations In Water Case

    GEORGETOWN, Del. — A Delaware state court judge on June 29 sanctioned attorneys representing a chicken processing plant $28,320.25 for “inappropriate conduct” regarding violations of discovery protocol in a groundwater contamination case brought by a class of residents who allege that the plant’s disposal of wastewater has damaged their health (Gary and Anna-Marie Cuppels, et al. v. Mountaire Corporation, et al., No. S18C-06-009 ESB, Del. Super., Sussex Co.).

  • June 29, 2020

    Reinsurers Seek Discovery On Insurer’s Allocation Process For $120M Settlement

    BOSTON — Reinsurers ask a Massachusetts federal court in a June 26 memorandum to compel an insurer to provide documents that would explain how the insurer allocated in its reinsurance billings a $120 million settlement involving environmental claims against its insured (Certain London Market Company Reinsurers v. Lamorak Insurance Co., No. 18-10534, D. Mass.).

  • June 29, 2020

    Judge Narrows Subpoena For Egyptian Financial Records To Enforce $2B Award

    NEW YORK — A federal judge in New York on June 23 partly granted a motion challenging a Spanish company’s subpoenas for financial records to enforce an arbitral award of more than $2 billion against the Arab Republic of Egypt in a gas plant dispute by narrowing the subpoena for records that the judge found was overbroad and quashing the subpoena for in-person testimony (In Re:  Petition of Union Fenosa Gas, S.A, No. 20-171, S.D. N.Y., 2020 U.S. Dist. LEXIS 110312).

  • June 25, 2020

    Discovery Recommended For Pension Plan Trustees’ ERISA Case With Insurer

    WASHINGTON, D.C. — A District of Columbia federal magistrate judge recommended June 22 that trustees of the United Mine Workers of America (UMWA) pension plan proceed with jurisdictional discovery against a Bermuda reinsurance and insurance company over alleged violations of the Employee Retirement Income Security Act regarding the failure to make $934 million in withdrawal liability payments (Michael H. Holland, et al. v. Cardem Insurance Company Ltd., No. 19-02362, D. D.C.).

  • June 24, 2020

    Insurer Seeks Protective Order From Officer’s Deposition In Data Breach Suit

    ROCHESTER, N.Y. — A health insurance provider that has been sued by a group of its policyholders over a 2013 data breach moved for a protective order in New York federal court on June 16, seeking to prevent the plaintiffs from deposing its chief information officer (CIO) for a third time (Matthew Fero, et al. v. Excellus Health Plan Inc., et al., No. 6:15-cv-06569, W.D. N.Y.).

  • June 22, 2020

    Relators’ Disclosure Statements Protected From Disclosure, Judge Rules

    SHERMAN, Texas — A federal judge in Texas on June 17 denied JPMorgan Chase Bank N.A.’s motion to compel production of disclosure statements submitted to the government by four relators in a False Claims Act (FCA) suit accusing the lender of falsely certifying compliance with the Home Affordable Modification Program (HAMP), holding that the documents are protected by the work product doctrine and that the bank failed to show that it has substantial need for the information (United States, ex rel. Michael Fisher, et al. v. JPMorgan Chase Bank N.A., No. 16-cv-395, E.D. Texas, 2020 U.S. Dist. LEXIS 106564).

  • June 19, 2020

    FDIC Seeks Reconsideration Of Privilege Ruling In Capital One Data Breach Suit

    ALEXANDRIA, Va. — The Federal Deposit Insurance Corp. on June 16 asked a Virginia federal court to reconsider a ruling in which it denied the agency’s motion to intervene in a discovery matter in a multidistrict litigation over a 2019 data breach experienced by Capital One Financial Corp., contending that it is entitled to defend as privileged certain documents requested by the plaintiffs (In re Capital One Customer Data Security Breach Litigation, No. 1:19-md-02915, E.D. Va.).

  • June 18, 2020

    Magistrate Finds Attorney Fees Not Merited In FOIA Suit Over Facebook Reports

    WASHINGTON, D.C. — A civil liberties organization that sued the Federal Trade Commission under the Freedom of Information Act (FOIA) regarding documents filed with the commission by Facebook Inc. over its data privacy practices received an unfavorable ruling in its quest for attorney fees on June 16 by a District of Columbia federal magistrate judge, who opined in a report and recommendation that the plaintiff did not establish entitlement to fees under the catalyst theory of causation (Electronic Privacy Information Center v. Federal Trade Commission, No. 1:18-cv-00942, D. D.C.).

  • June 16, 2020

    Chicken Plant:  Sanctions ‘Improper And Unwarranted’ In Groundwater Pollution Case

    GEORGETOWN, Del. — A chicken processing plant on June 15 filed a brief in Delaware state court contending that it is “improper and unwarranted” for the members of a groundwater contamination class action to seek sanctions for alleged violations of discovery protocol (Gary and Anna-Marie Cuppels, et al. v. Mountaire Corporation, et al., No. S18C-06-009 ESB, Del. Super., Sussex Co.).

  • June 16, 2020

    Magistrate Judge Allows Some Changes To Doctor’s Deposition Testimony In Disability Suit

    TUCSON, Ariz. — An Arizona federal magistrate judge on June 15 partially granted a disability claimant’s motion to strike corrections to the deposition of a disability insurer’s physician after determining that only corrective changes to the deposition are permitted and not contradictory changes to answers provided in the deposition (Herbert Jalowsky M.D. v. Provident Life and Accident Insurance Co., et al., No. 18-279, D. Ariz., 2020 U.S. Dist. LEXIS 104311).

  • June 15, 2020

    Magistrate Judge Orders Subcontractor To Comply With Insurers’ Subpoena

    SPRINGFIELD, Ill. — A federal magistrate judge in Illinois on June 12 denied a heating and air conditioning subcontractor’s attempt to quash a subpoena from insurers in their coverage dispute over defects in a facility for The Salvation Army (The Phoenix Insurance Company, et al. v. S.M. Wilson & Co., et al., No. 20-3063, C.D. Ill., 2020 U.S. Dist. LEXIS 103093).

  • June 15, 2020

    U.S. High Court Won’t Review Discovery Order In Generic Drug MDL

    WASHINGTON, D.C. — The U.S. Supreme Court on June 15 denied a motion by generic drug manufacturers to review an antitrust multidistrict litigation court’s order that they produce documents even if the defendants think the documents are irrelevant or nonresponsive (Actavis Holdco US, Inc., et al. v. Connecticut, et al., No. 19-1010, U.S. Sup.).

  • June 15, 2020

    Federal Judge Issues Discovery Order On Tenants’ UCL Suit Over Late Fee

    SAN FRANCISCO — A federal judge in California on June 9 held that defendants have waived attorney-client privilege as to all attorney-client communications regarding the legal advice from outside counsel and in-house counsel concerning the legality of a late fee in a lawsuit alleging that the defendants violated California’s Civil Code Section 1671(d) and Business and Professions Code Section 17200 by charging tenants the greater of $50 or 5 percent of their outstanding balance for late rent payments (Javanni Munguia-Brown, et al. v. Equity Residential, et al., No. 16-01225, N.D. Calif., 2020 U.S. Dist. LEXIS 101784).

  • June 12, 2020

    On Remand From 4th Circuit, Judge Denies Stay Of Discovery For Private U.K. Tribunal

    CHARLESTON, S.C. — A South Carolina federal judge on June 8 denied a motion to stay discovery for use before a private arbitral tribunal that is hearing an aircraft engine fire dispute, despite one party planning to file a petition for a writ of certiorari on the issue, because the Fourth Circuit U.S. Court of Appeals’ reversal of the judge’s prior ruling serves as an implicit mandate that requires the court to deny the stay (In re:  Servotronics Inc., No. 18-364, D. S.C., 2020 U.S. Dist. LEXIS 99991).

  • June 12, 2020

    Facebook Needn’t Produce Full Messenger Source Code In Data-Scraping Suit

    SAN FRANCISCO — A discovery request for all source code related to Facebook Inc.’s Messenger app was deemed too broad by a California federal magistrate judge, who on June 11 instead directed the social network to just submit source code related to the app’s features at issue in the privacy and data access claims over data-scraping activities carried out by the app (Lawrence Olin, et al. v. Facebook Inc., No. 3:18-cv-01881, N.D. Calif.).

  • June 12, 2020

    Frozen Yogurt Franchisee Urges Breach Of Contract Suit To Discovery

    LOS ANGELES — Following remand, a franchisee of a frozen yogurt restaurant argues in June 8 opposition briefs that a California federal court should refuse to dismiss its breach of contract suit and allow discovery (Cantran Group, Inc. v. CUPS, LLC, et al., No. 18-2044, C.D. Calif.).

  • June 10, 2020

    Judge Limits Companies’ Use Of Coast Guard’s Responses To FOIA Requests

    NEW ORLEANS — A federal judge in Louisiana on June 9 granted in part the federal government’s motion in limine seeking to preclude defendant companies in an Oil Pollution Act of 1990 lawsuit from introducing evidence regarding submissions to the U.S. Coast Guard under the Freedom of Information Act (FOIA) and the timeliness of its responses, holding that the information cannot be used to assert a spoliation claim because the companies never previously raised the argument (United States v. ERR LLC, et al., No. 19-2340, E.D. La., 2020 U.S. Dist. LEXIS 100593).

  • June 10, 2020

    Discovery For Private Chinese Tribunal Is Proper, Investors Tell 9th Circuit

    SAN FRANCISCO — A group of Chinese entities in a June 4 answer brief to the Ninth Circuit U.S. Court of Appeals argue that a district court did not err or abuse its discretion in allowing discovery of the financial records of a Chinese woman and three California-based entities she manages for use in a private commercial arbitration tribunal in China as such tribunals have been repeatedly established as within the scope of the statute governing discovery for use in foreign proceedings (HRC-Hainan Holding Company, LLC, et al. v. Yihan Hu, et al., No. 20-15371, 9th Cir.).