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Mealey's Discovery

May 12, 2020
Limited Monetary Sanctions Against Stored Energy Solutions Provider Adopted

CHICAGO — A federal judge in Illinois on May 8 adopted a federal magistrate judge’s report and recommendation that defendants in a breach of contract and trade secret misappropriation lawsuit brought by a stored energy solutions provider are entitled to limited monetary sanctions covering half of the attorney fees incurred by the defendants as a result of the plaintiff’s failure to properly collect documents and its issuance of misleading responses to other discovery requests (LiiON LLC v. Vertiv Group Corp., et al., No. 18-6133, N.D. Ill., 2020 U.S. Dist. LEXIS 81337).
May 12, 2020
Flint Water Crisis Defendants Join Call For Production Of Investigation Documents

ANN ARBOR, Mich. — Some of the defendants in the lead-contaminated water crisis litigation brought by residents of Flint, Mich., on May 12 filed a notice in Michigan federal court joining a motion by the plaintiffs, who seek to compel the production of documents related to a subpoena served on the Michigan Attorney General’s Office for information pertaining to that office’s criminal investigation (In re Flint Water Cases, No. 16-10444, E.D. Mich.).
May 12, 2020
Former Police Chief Must Provide Some Documents In University Sex Assault Suit

WACO, Texas — Denying in part motions to quash discovery subpoenas filed by a former police chief at Baylor University, a Texas federal magistrate judge on May 7 found that the nonparty failed to establish privilege, harassment or privacy violations in the materials sought by the Doe plaintiffs in a consolidated class action over the university’s responses to on-campus sexual assaults (Jane Doe 1, et al. v. Baylor University, No. 6:16-cv-00173, W.D. Texas, 2020 U.S. Dist. LEXIS 81099).
May 12, 2020
Appeal Of Psychotherapist-Patient Privilege Ruling Dismissed By 2nd Circuit

NEW YORK — Because a trial court’s denial of a plaintiff’s objection to production of his psychological records under the psychotherapist-patient privilege did not constitute a final order, a Second Circuit U.S. Court of Appeals panel on May 8 deemed the ruling nonappealable and dismissed the appeal for lack of jurisdiction (Joshua Rosner v. United States, No. 19-687, 2nd Cir., 2020 U.S. App. LEXIS 14770).
May 08, 2020
Capital One Opposes Production Of Consultant Report In Data Breach Lawsuit

ALEXANDRIA, Va. — On May 6, Capital One Financial Corp. filed its opposition to a motion to compel production of a report by a cybersecurity firm after the credit card company’s 2019 data breach, telling a Virginia federal court that the report constitutes protected work product because it was prepared to assist Capital One’s counsel in defending against the present litigation brought by consumers over the exposure of their data in the breach (In re Capital One Customer Data Security Breach Litigation, No. 1:19-md-02915, E.D. Va.).
May 08, 2020
Federal Judge Grants Discovery In ERISA Mental Health Coverage Case

SALT LAKE CITY — A woman denied coverage for residential mental health treatments under an Employee Retirement Income Security Act plan is entitled to discovery into documents showing how the insurers calculated reimbursements and imposed nonquantitative treatment limitations, a federal judge in Utah said May 6 (Jane Doe v. Intermountain Healthcare Inc., et al., No. 18-00807, D. Utah, 2020 U.S. Dist. LEXIS 80809).
May 08, 2020
Nonprofit Asks Court To Compel Agencies’ Responses To COVID-19 Document Requests

WASHINGTON, D.C. — In a May 5 complaint, a self-described “ethics watchdog” organization asked a District of Columbia federal court to order four federal government agencies to comply with Freedom of Information Act (FOIA) requests in which it seeks documents related to the novel coronavirus pandemic (American Oversight v. U.S. Department of the Treasury, et al., No. 1:20-cv-01169, D. D.C.).
May 07, 2020
Secretary Of Labor Mostly Denied Document Requests In ERISA Stock Drop Suit

ST. PAUL, Minn. — A Minnesota federal magistrate judge on May 4 found all but one of the documents sought by the Secretary of Labor from the directors of a manufacturing company and the firm’s corporate counsel to be privileged and not subject to a fiduciary exception, mostly denying the secretary’s motion to compel in a stock drop suit brought under the Employee Retirement Income Security Act of 1974 (Eugene Scalia v. Reliance Trust Co., et al., No. 0:17-cv-04540, D. Minn., 2020 U.S. Dist. LEXIS 78015).
May 07, 2020
California Court Affirms Tucker Ellis’ Judgment In Asbestos Data Release Suit

SAN FRANCISCO — A law firm retained ownership of an attorney’s communications with asbestos expert witnesses, and any duty it had when releasing the materials in response to a subpoena was to its clients, a California appeals court held in affirming judgment for the firm on May 5 (Evan C. Nelson v. Tucker Ellis LLP, No. A153661, Calif. App., 1st Dist., 2020 Cal. App. LEXIS 379).
May 07, 2020
Rust-Oleum Ordered To Provide Competitor With Test Results In Trade Secrets Suit

MEDFORD, Ore. — A federal judge in Oregon on May 4 granted a motion in a trade secret misappropriation lawsuit to compel Rust-Oleum Corp. to produce test result data that identifies the chemical composition of the formula used in its vehicle restoration products, ruling that although producing those results may be costly for Rust-Oleum, they are important to the outcome of the litigation (Rust-Oleum Corp. v. NIC Industries Inc., No. 18-1655, D. Ore., 2019 U.S. Dist. LEXIS 154998).
May 07, 2020
Magistrate Judge Says Insurer Can Have Access To Windshield Installer’s Ledger

TAMPA, Fla. — A federal magistrate judge in Florida on May 5 granted in part an insurer’s motion to compel seeking financial records, tax returns and the general ledger of a windshield company accused of submitting false claims for replacement, holding that while the insurance company can have access to the ledger, more discovery is needed to determine if it should be allowed to have copies of the tax returns and other financial information (Government Employees Insurance Co., et al. v. Sean Martineau, et al., No. 19-cv-1382-T-35SPF, M.D. Fla., 2020 U.S. Dist. LEXIS 78816).
May 06, 2020
Reserves Information Is Discoverable In Bad Faith, Business Interruption Suit

POCATELLO, Idaho — An Idaho federal judge on April 22 said that reserves information requested by an insured seeking coverage for business interruption losses is discoverable because the information is relevant to the insured’s breach of contract and bad faith claims and can assist the court in determining whether the insurer had a reasonable basis for denying the insured’s claim (Idahoan Foods LLC v. Allied World Assurance Co. [U.S.] Inc., No. 18-273, D. Idaho, 2020 U.S. Dist. LEXIS 71243).
May 04, 2020
New York Justice Rejects Asbestos-Talc Defendant’s Discovery Ruling Objections

NEW YORK — The special master overseeing discovery in New York’s asbestos docket properly found an asbestos-talc defendant’s discovery objections overly broad and correctly rejected its contention that third-party proprietary information was subject to the attorney-work privilege, a New York justice held in an opinion posted April 30 (Donald Minassian, et al. v. Brenntag North America, et al., No. 190399/2018, N.Y. Sup., New York Co., 2020 N.Y. Misc. LEXIS 1625).
May 01, 2020
Plaintiffs Must Produce Database Used By Expert Witnesses In Auto-Loss Suit

TACOMA, Wash. — A federal judge in Washington on April 28 granted an insurer’s motion to compel the production of a database used by two proposed expert witnesses after determining that the information is relevant to the insurers’ challenge of the plaintiffs’ proposed expert witnesses in a consumer class action lawsuit against two insurers and a company that provides them with vehicle valuations for paying total-loss vehicle claims (Cameron Lundquist, et al. v. First National Insurance Company of America, et al., No. 18-5301, W.D. Wash., 2020 U.S. Dist. LEXIS 74643).
April 29, 2020
Discovery Ruling On Financial Conflict Of Interest Was Contrary To Law, Judge Says

SACRAMENTO, Calif. — A California federal judge on April 27 granted a disability claimant’s motion for reconsideration after determining that a magistrate judge’s discovery ruling on the disability plan’s alleged financial conflict of interest was contrary to law (Ruby Chacko v. AT&T Umbrella Benefit Plan No. 3, No. 19-1837, E.D. Calif., 2020 U.S. Dist. LEXIS 73816).
April 28, 2020
Aqueous Foam Plaintiffs: Subpoena For Science Data Is A ‘Flagrant Violation’

CHARLESTON, S.C. — The plaintiffs in the multidistrict litigation for the firefighting agent known as aqueous film forming foam (AFFF) on April 27 moved in South Carolina federal court for a protective order because the defendants “improperly attempt to compel” West Virginia University to produce “highly confidential and protected data” that belongs to a science panel in separate litigation related to injury from perfluorooctanoic acid (PFOA) (In re: Aqueous Film Forming Foam, MDL 18-2873, D. S.C.).
April 28, 2020
Disability Claimant Says Insurer Failed To Show Documents Should Be Sealed

CHATTANOOGA, Tenn. — A district court should deny a disability insurer’s request to file documents under seal because the insurer failed to present a compelling reason to limit public access to the documents, a disability claimant says in an April 23 reply brief (Janet Mitchell v. Unum Life Insurance Company of America, et al., No. 18-94, E.D. Tenn.).
April 28, 2020
Kroger Sanctioned, Ordered To Provide Certain Documents In Product Safety Dispute

SAN DIEGO — A federal magistrate judge in California on April 23 ordered a grocery chain to provide further responses to certain discovery requests in a lawsuit accusing it of violating California laws, including the unfair competition law (UCL), related to ingredients used in certain bread crumb products and ordered the chain’s counsel to attend ethics and discovery practice courses (Shavonda Hawkins, et al. v. The Kroger Company, No. 15-2320, S.D. Calif., 2020 U.S. Dist. LEXIS 72311).
April 27, 2020
Judge Compels Insurer To Produce Reinsurance Policies In Bad Faith Dispute

POCATELLO, Idaho — An insurer must turn over reserve information and its reinsurance policies in an insured’s bad faith case concerning coverage for damages sustained by a fire at a potato processing facility, an Idaho federal judge ruled April 22; however, communications between the insurer and its reinsurer are not discoverable (Idahoan Foods, LLC v. Allied World Assurance Company [U.S.], Inc., No. 18-273, D. Idaho, 2020 U.S. Dist. LEXIS 71243).
April 27, 2020
Coronavirus Issues Infect New York Asbestos Case Discovery

NEW YORK — Legal fallout from the novel coronavirus continues, with a couple on April 24 in a New York asbestos case saying a defendant is using the pandemic in furtherance of its “dilatory strategy,” and a second defendant urging an extension of discovery, saying its witness and his wife remain quarantined and cannot appear (Raymond and Diane Stecher v. Aerco International Inc., et al., No. 19-8029, S.D. N.Y.).