Mealey's Discovery

  • July 11, 2019

    Merck Ordered To Produce Zostavax Adverse Event Data In MDL

    PHILADELPHIA — A Pennsylvania federal judge presiding over the Zostavax multidistrict litigation on July 8 ordered Merck & Co. Inc. to produce adverse event data about alleged injuries caused by the shingles vaccine (In Re:  Zostavax [Zoster Vaccine Live] Products Liability Litigation, MDL Docket No. 2848, No. 19-md-2848, E.D. Pa.).

  • July 11, 2019

    9th Circuit Denies Rehearing In Appeal Over Enforcement Of EEOC Subpoena

    PASADENA, Calif. — A Ninth Circuit U.S. Court of Appeals panel on July 10 denied a petition for rehearing or rehearing en banc filed by an employer following a May 1 ruling that reversed a district court’s decision on an Equal Employment Opportunity Commission subpoena related to a gender discrimination charge and remanded with instructions to enforce the subpoena except as to information the EEOC says it no longer needs (U.S. Equal Employment Opportunity Commission v. VF Jeanswear LP, No. 17-16786, 9th Cir., 2019 U.S. App. LEXIS 20495).

  • July 10, 2019

    Trucking Firm To Be Deposed Over Spoliated Driver Records In Wrongful Death Suit

    PADUCAH, Ky. — A Kentucky federal magistrate judge on July 3 found that the estate of a man killed in an auto accident was entitled to depose the defendant trucking company as to why it did not preserve certain records of the responsible driver, granting in part a motion to compel deposition (Estate of Austin Patterson, et al. v. Contract Freighters Inc., et al., No. 5:18-cv-00174, W.D. Ky., 2019 U.S. Dist. LEXIS 111062).

  • July 10, 2019

    New York Justice Quashes Chanel’s Subpoenas, Asbestos Discovery Requests

    NEW YORK — A consumer talc company’s subpoenas seek information it can obtain through other means, and the defendant has not shown that it made any attempt to obtain cooperation from out-of-state individuals who provided talc samples for testing before seeking court assistance, a New York justice held July 8 (Beverley Alleyne v. A.O. Smith Water Products Co., et al., No. 190295/2017, N.Y. Sup., New York Co., 2019 N.Y. Misc. LEXIS 3565).

  • July 09, 2019

    Keurig Competitor Ordered To Produce Attorney Documents In Antitrust Litigation

    NEW YORK — A New York federal magistrate judge overseeing discovery in an antitrust multidistrict litigation against Keurig Green Mountain Inc. on July 1 granted the coffee manufacturer’s motion to compel a competing K-cup maker to produce communications with a former attorney regarding its decision to use certain marketing terms, finding that the competitor’s assertion of a good faith defense based on its reliance on the attorney’s advice waived any attorney-client privilege in such documents (In re:  Keurig Green Mountain Single Serve Coffee Antitrust Litigation, No. 1:14-ms-02542, S.D. N.Y., 2019 U.S. Dist. LEXIS 109805).

  • July 09, 2019

    Marriott Requests Targeted Discovery Over Bank’s Standing In Data Breach MDL

    GREENBELT, Md. — Questioning the standing of a bank that is one of the many plaintiffs in the multidistrict litigation over a data breach that it experienced, Marriott International Inc. on July 9 filed a letter in Maryland federal court requesting leave to conduct limited discovery regarding the bank’s claimed damages from the breach to determine whether it suffered a necessary injury-in-fact (In re:  Marriott International Inc. Customer Data Security Breach Litigation, No. 8:19-md-02879, D. Md.).

  • July 09, 2019

    Magistrate Judge Marginally Trims Records Request In Subpoena Issued To Attorney

    DETROIT — A federal magistrate judge in Michigan on July 2 ordered a nonparty attorney accused of referring individuals injured in automobile accidents to clinics that allegedly submitted fraudulent bills to State Farm Mutual Automobile Insurance Co. to produce a majority of the records the insurer requested in a subpoena, holding that evidence presented by the company could support the inference that he is the center of the scheme (State Farm Mutual Automobile Insurance Company v. Elite Health Centers Inc., et al., No. 16cv13040, E.D. Mich., 2019 U.S. Dist. LEXIS 110767).

  • July 09, 2019

    Judge Finds Fired Employees Spoliated Evidence, Dismisses Age Discrimination Suit

    FORT SMITH, Ark. — Two employees fired for data security flaws failed to establish that their terminations were due to age discrimination, an Arkansas federal judge ruled July 3, granting summary judgment to their former employer after also finding that the ex-employees intentionally spoliated evidence by encrypting and deleting text messages (Brian Herzig, et al. v. Arkansas Foundation for Medical Care Inc., No. 2:18-cv-02101, W.D. Ark., 2019 U.S. Dist. LEXIS 111296).

  • July 09, 2019

    Ex-Employees May Subpoena Verizon In Trade Secrets Computer Fraud Suit

    COLUMBUS, Ohio — Two former employees of a plastics company have sufficiently demonstrated the need to subpoena Verizon Wireless for certain records supporting their defense against computer fraud and wiretap claims against them related to the alleged theft of company trade secrets, an Ohio federal magistrate judge ruled July 3, granting their motion for expedited discovery (Axium Plastics LLC v. Keith Templin, et al., No. 2:19-cv-02386, S.D. Ohio, 2019 U.S. Dist. LEXIS 111079).

  • July 08, 2019

    Detention Center Operator Denied Bid To Compel Work Program Data From Washington

    TACOMA, Wash. — The operator of an immigration detainee center charged with minimum wage violations by the state of Washington saw its motion to compel discovery denied on July 1, with a Washington federal judge finding that the requested data on state agency work programs was already sufficiently produced and holding that the defendant did not establish that additional information was relevant or proportional to the present case (Washington v. The GEO Group Inc., No. 3:17-cv-05806, W.D. Wash., 2019 U.S. Dist. LEXIS 109831).

  • July 01, 2019

    FBI, DOJ Seek Judgment In Remanded FOIA Suit Filed By AP, Reporters Group

    WASHINGTON, D.C. — Despite an appeals court ruling against them, the FBI and the U.S. Department of Justice (DOJ) moved in District of Columbia federal court on June 27, requesting summary judgment in a remanded Freedom of Information Act (FOIA) lawsuit, arguing that plaintiffs the Associated Press (AP) and a free speech watchdog group are precluded from pursuing their objections regarding documents the agencies withheld from production (The Reporters Committee for Freedom of the Press, et al. v. Federal Bureau of Investigation, et al., No. 1:15-cv-01392 and 1:18-cv-00345, D. D.C.).

  • 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 21, 2019

    6th Circuit Vacates Opioid MDL Protective Order For DEA’s ARCOS Drug Database

    CINCINNATI — In a 2-1 decision, the Sixth Circuit U.S. Court of Appeals on June 20 vacated a protective order by the opioid multidistrict litigation court blocking public access to drug distribution data collected by the U.S. Drug Enforcement Administration (DEA) and produced under subpoena in the MDL (In Re:  National Prescription Opiate Litigation [HD Media Company, LLC, et al. v. United States Department of Justice, et al.], Nos. 18-3839 and 18-3860, 4th Cir., 2019 U.S. App. LEXIS 18502).

  • 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).

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