Mealey's Discovery

  • May 15, 2019

    California Panel Affirms Dismissal Of Fraud, UCL Claims Against Home Builder

    RIVERSIDE, Calif. — A California appeals court panel on May 13 held that a trial court judge did not err when dismissing claims for fraud and under California’s unfair competition law (UCL) brought by homeowners accusing a builder of construction defects, finding that evidence that could have been used to support the claims was properly stricken as part of discovery sanctions imposed upon the plaintiffs after the first phase of the trial (Edward Guillen, et al. v. Centex Homes, et al., No. E066028, Calif. App., 4th Dist., 2nd Div., 2019 Cal. App. Unpub. LEXIS 3310).

  • May 14, 2019

    Depositions Ordered In Coverage Dispute Over Online Personal Material Postings

    SAN JOSE, Calif. — A company that was responsible for the online postings of a client’s personal material was ordered May 10 to mostly comply with deposition subpoenas by an insurance company involved in a coverage dispute over the matter, with a California federal magistrate judge declining to quash the subpoenas and finding most of the insurer’s requests to be relevant and proportional to the needs of the case (Pegatron Technology Service Inc. v.  American Guarantee & Liability Insurance Co., No. 5:18-cv--01477, N.D. Calif., 2019 U.S. Dist. LEXIS 79693).

  • May 10, 2019

    Groups: Standing Valid For Case About Possible Fracking At Former Nuclear Site

    DENVER — Residents, environmental organizations and nuclear workers advocacy groups on  April 23 filed a brief in Colorado federal court contending that their lawsuit seeking the disclosure of documents related to an investigation of a former nuclear weapons plant that the state now contends could be used for hydraulic fracturing should not be dismissed (In re:  Petition of Alliance of Nuclear Workers Advocacy Groups, et al., No. 19-76, D. Colo.).

  • May 10, 2019

    Judge Orders Jurisdictional Discovery On Company Accused Of Making Faulty Shingles

    BEAUFORT, S.C. — A federal judge in South Carolina on May 8 ordered jurisdictional discovery on the relationship between two companies in a lawsuit brought by a couple claiming that the roofing shingles installed on their home are defective in order to determine if they are alter egos of each other (Angelo Guagliano, et al. v. Cameron & Cameron Custom Homes LLC, et al., No. 19-cv-0839-RMG, D. S.C., 2019 U.S. Dist. LEXIS 77703).

  • May 08, 2019

    Apple’s Discovery Objections Overruled In IPhone Performance-Throttling Suit

    SAN JOSE, Calif. — Three days after a California federal judge partly granted Apple Inc.’s motion to dismiss an amended complaint in a lawsuit over the purported intentional throttling of certain iPhone and iPad models, the judge on May 6 overruled Apple’s objections to a recent order requiring it to engage in a schedule of rolling discovery (In re:  Apple Inc. Device Performance Litigation, No. 5:18-md-02827, N.D. Calif., 2019 U.S. Dist. LEXIS 76419).

  • May 08, 2019

    Discovery Subpoena Dispute Transferred In Soccer League Antitrust Lawsuit

    MIAMI — A soccer organization’s motion to compel discovery from a nonparty soccer team owner was transferred to New York federal court on May 7, as a Florida federal judge adopted the report and recommendation of a magistrate, who deemed the matter sufficiently complex to merit consideration by the court that issued the underlying discovery subpoena in a lawsuit over the purported monopolization of the U.S. soccer market (United States Soccer Federation Inc. v. Silva International Investments, No. 1:19-mc-21119, S.D. Fla., 2019 U.S. Dist. LEXIS 75350).

  • May 08, 2019

    No Limits On Opioid Expert, But Plaintiffs Face $100,000 Sanction For Depositions

    CLEVELAND — The Ohio federal judge overseeing the opioid multidistrict litigation on April 26 took off a magistrate judge’s restrictions on the use of a plaintiffs’ expert but ordered the plaintiffs to pay defendants no more than $100,000 for additional depositions of the expert who went from being an opioid “opinion leader” and defendant to a plaintiff expert (In Re:  National Prescription Opiate Litigation, MDL Docket No. 2804, No. 17-md-2804, N.D. Ohio, Eastern Div.).

  • May 07, 2019

    Documents Will Not Be Excluded From Administrative Record, Magistrate Judge Says

    MADISON, Wis.  — A Wisconsin federal magistrate judge on May 3 denied a disability claimant’s motion to exclude the plan’s insurance certificate and appointment of claim fiduciary form from the administrative record after determining that the claimant failed to provide any citation to statutory or case law that requires the exclusion of the documents from the administrative record based on the claim administrator’s failure to provide the documents to the claimant upon request (Joleen M. Lerch v. Life Insurance Company of North America, No. 18-589,  W.D. Wis., 2019 U.S. Dist. LEXIS 74946).

  • May 06, 2019

    Texas Supreme Court Vacates Sanctions, Punitive Awards Against Driver

    AUSTIN, Texas — The Texas Supreme Court vacated a $37,000 sanctions award and a $75,000 punitive damage award to a pedestrian who was hit by a vehicle.  It concluded April 26 that the vehicle driver was allowed to concede negligence after denying it during discovery and that there was no evidence that the driver was grossly negligent (Christopher Medina v. Jennifer L. Zuniga, No. 17-0498, Texas Sup., 2019 Tex. LEXIS 387).

  • May 06, 2019

    DOJ Seeks Vacatur Of Order Denying Biometric Unlocking Of Devices Via Warrant

    OAKLAND, Calif. — In a brief filed May 1 in California federal court, the U.S. Department of Justice (DOJ) requests review and vacatur of a magistrate’s order declining to compel suspects to unlock seized electronic devices by biometric means, arguing that even though a new warrant was issued in the underlying case, the matter is not moot because it will certainly arise in future investigations (In re Search of a Residence in Oakland, Calif., No. 4:19-mj-70053, N.D. Calif.).

  • May 06, 2019

    9th Circuit Orders Enforcement Of EEOC Subpoena

    PASADENA, Calif. — A Ninth Circuit U.S. Court of Appeals panel on May 1 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 13179).

  • May 03, 2019

    Tribes Cite Unique History, Discovery Needs In Equifax Data Breach Lawsuit

    ATLANTA — In an April 30 reply brief, three Native American tribes defend their motion to establish a separate track for tribal governments in the multidistrict litigation against Equifax Inc. over its 2017 data breach, arguing to a Georgia federal court that a history of financial discrimination has caused heightened harm to them that necessitates separate class representation and unique discovery (In Re:  Equifax Inc., Customer Data Security Breach Litigation, No. 1:17-md-2800, N.D. Ga.).

  • May 01, 2019

    8th Circuit Won’t Stay Order To Disclose Nebraska’s Execution Drug Material

    DENVER — The Eighth Circuit U.S. Court of Appeals on April 23 denied Nebraska’s motion to stay a court order that the state produce communications with a pharmacy about supplying fentanyl instead of midazolam for executions (Jason Farrell McGehee, et al. v. Nebraska Department of Correctional Services, No. 19-1770, 8th Cir.).

  • May 01, 2019

    Federal Circuit Petitioned For Mandamus In Source Code Dispute

    WASHINGTON, D.C. — In an April 22 petition for mandamus filed with the Federal Circuit U.S. Court of Appeals, a patent owner and its licensee assert the U.S. Court of Federal Claims abused its discretion when, in an April 2019 unpublished decision, it refused to order a third-party government contractor to produce documents showing the functionality of its source code (In re 3rd Eye Surveillance LLC, et al., No. 19-119, Fed. Cir.).

  • April 30, 2019

    Justice Quashes Subpoenas For Expert Witness Depositions In Superstorm Sandy Suit

    CENTRAL ISLIP, N.Y. — A New York justice on April 17 granted an insurer’s motion to quash three subpoenas for expert witness depositions in a Superstorm Sandy coverage dispute (James Halpin v. Chubb Indemnity Insurance Co., No. 13-63696, N.Y. Sup., Suffolk Co., 2019 N.Y. Misc. LEXIS 1936).

  • April 26, 2019

    Federal Judge Grants Discovery In Health Insurance Air Transport Coverage Case

    OKLAHOMA CITY — A federal judge in Oklahoma on April 23 granted plaintiffs additional time for discovery into their individual action against a health insurer they claim failed to properly cover air transport costs for their newborn child (Christina and Jeffrey Terry, et al. v. Health Care Service Corp., No. 18-415, W.D. Okla., 2019 U.S. Dist. LEXIS 68601).

  • April 23, 2019

    Discovery Is Limited To Administrative Record, Texas Federal Judge Says

    DALLAS — Additional discovery regarding a disability insurer’s alleged conflict of interest and procedural unreasonableness is not warranted because under the applicable de novo standard of review, discovery is limited to the administrate record, a Texas federal judge said April 22 in denying the disability claimant’s motion to compel discovery (Jose Chavez v. Standard Insurance Co., No. 18-2013, N.D. Texas, 2019 U.S. Dist. LEXIS 67669).

  • April 23, 2019

    Bifurcation Will Prevent Prejudice To Auto Insurer, Kentucky Federal Judge Says

    LEXINGTON, Ky. — A Kentucky federal judge on April 22 granted an auto insurer’s motion to bifurcate a bad faith claim from a breach of contract claim after determining that bifurcation will prevent prejudice to the auto insurer and will further judicial economy by limiting discovery until after liability has been established (Thea Mason v. State Farm Mutual Auto Insurance Co., No. 19-2, E.D. Ky., 2019 U.S. Dist. LEXIS 67803).

  • April 22, 2019

    Asbestos Lawyer Says Former Law Firm Can’t Escape Data Release Lawsuit

    SAN FRANCISCO — A lawyer’s discussions with asbestos expert witnesses are entitled to constitutional privacy protections, and even if his law firm owns the alternative causation work product he created, claims alleging interference with his ability to seek employment constitute independent wrongful acts sufficient to survive summary adjudication, an attorney told a California appeals court on March 8 (Evan C. Nelson v. Tucker Ellis LLP, No. A153661, Calif. App., 1st Dist.).

  • April 22, 2019

    Confidentiality, Harm Debated In Supreme Court Arguments Over FOIA Exemption

    WASHINGTON, D.C. — The U.S. government, a newspaper and a retailer trade association offered arguments about the necessity of demonstrating likely harm from the disclosure of information under the Freedom of Information Act (FOIA) before the U.S. Supreme Court on April 22, disputing whether assurances of confidentiality and assertions of trade secrets are sufficient to invoke an exemption to the act (Food Marketing Institute v. Argus Leader Media, No. 18-481, U.S. Sup.).

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