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Mealey's Discovery

August 12, 2019
Groups: Writ Of Mandamus Needed For Records About Possible Fracking Site

DENVER — Residents, environmental organizations and nuclear workers advocacy groups on July 31 moved in Colorado federal court for a writ of mandamus ordering the U.S. government to provide records that pertain to a grand jury that investigated the actions of Rockwell International Corp. at the U.S. Department of Energy (DOE) former weapons-grade plutonium-239 processing facility, Rocky Flats Nuclear Weapons Plant, which is now being considered as a site for hydraulic fracturing operations (Alliance of Nuclear Workers Advocacy Groups, et al. v. United States of America, No. 19-76, D. Colo.).
August 09, 2019
New York Justice Says Remaining Discovery Won’t Halt Trial Schedule

NEW YORK — Adequate time remains for a scientific supply company to complete discovery before a trial in a former pathology student’s asbestos case, a New York justice held in an opinion posted Aug. 6 (Michael Rosen v. Baltimore Aircoil Company Inc., et al., No. 190392/2018, N.Y. Sup., New York Co., 2019 N.Y. Misc. LEXIS 4250).
August 08, 2019
Commissioner Asks To Quash Subpoena In Reinsurer’s Breach Of Contract Case

SACRAMENTO, Calif. — The California insurance commissioner on Aug. 6 asked a California federal court to quash a deposition subpoena in a breach of contract lawsuit filed by a reinsurer and its affiliates in a Nebraska federal court over a workers’ compensation program involving a reinsurance participation agreement (RPA) (Applied Underwriters Captive Risk Assurance Company Inc. v. Ramesh Pitamber & Kusum Pitamber, et al., No. 19-mc-00129, E.D. Calif.).
August 07, 2019
Insured Seeks Resolution Of Discovery Disagreement In Reinsurance Contracts Case

BRIDGEPORT, Conn. — An insured in an Aug. 2 letter is asking a federal judge in Connecticut for assistance in resolving a disagreement between it and defendants regarding responses to written discovery requests in its dispute over a series of workers’ compensation insurance and reinsurance contracts (Charter Oak Oil Co. Inc. v. Applied Underwriters Inc., et al., No. 17-00689, D. Conn.).
August 07, 2019
Group: Trump Administration Violated Law Related To Fracking Information Request

WASHINGTON, D.C. — An environmental advocacy group on July 26 filed a complaint in District of Columbia federal court contending that the Trump administration has wrongfully withheld records related to the group’s Freedom of Information Act (FOIA) request, as it pertains to information about hydraulic fracturing activities on federal land (WildEarth Guardians v. U.S. Secretary of the Interior, et al., No. 19-2233, D. D.C.).
August 07, 2019
AP, Reporters Group Argue The FBI Wrongly Withheld FOIA Responsive Documents

WASHINGTON, D.C. — The Federal Bureau of Investigation has failed to establish that documents it redacted and withheld in response to Freedom of Information Act (FOIA) requests were covered by the statute’s exemptions, The Associated Press and a reporters group argue in a July 25 cross-motion for summary judgment in District of Columbia federal court (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.).
August 07, 2019
Judge: Compelled Fingerprint Unlock Of Cellphone Does Not Violate 5th Amendment

BOISE, Idaho — A warrant compelling a suspect to provide access to his locked cellphone via biometric means does not violate the Fifth Amendment to the U.S. Constitution, an Idaho Federal judge ruled July 26, concluding that the fingerprint “does not require the suspect to provide any testimonial evidence” (In re the Search of a White Google Pixel 3 XL Cellphone in a Black Incipio Case, No. 1:19-mj-10441, D. Idaho, 2019 U.S. Dist. LEXIS 125243).
August 07, 2019
Magistrate Won’t Limit Depositions In Dispute Over Construction Of Mosque

TRENTON, N.J. — Finding that a township failed to identify the information it sought to shield from depositions in a dispute over a proposed mosque construction, a New Jersey federal magistrate judge on July 29 denied the township’s motion for protective order (Christopher Quick, et al. v. Bernards, et al., No. 3:17-cv-05595, D. N.J., 2019 U.S. Dist. LEXIS 126028).
August 06, 2019
Judge Grants Judgment As 2nd Defendant Battles Asbestos Discovery Order

TACOMA, Wash. — A federal judge in Washington granted an asbestos automobile parts manufacturer summary judgment Aug. 5; on Aug. 2 plaintiffs told a judge he need not reconsider a ruling finding that a second defendant failed to fully respond to interrogatories (Eric Klopman-Baerselman, et al. v. Air & Liquid Systems Corp., et al., No. 18-5536, W.D. Wash.).
August 06, 2019
Homeowners Sanctioned For Not Producing Recording In Fire Coverage Dispute

EASTERN HATTIESBURG, Miss. — The failure of the plaintiffs in a house fire coverage lawsuit to timely produce the recording of a conversation with their insurance adjuster merited monetary and preclusive discovery sanctions, a Mississippi federal magistrate judge ruled Aug. 1, stopping short of the dismissal sanctions sought by the defendant insurer (Lynda B. Jarrell, et al. v. Shelter Mutual Insurance Co., No. 2:18-cv-00183, S.D. Miss., 2019 U.S. Dist. LEXIS 128576).
August 05, 2019
Fiduciary Exception Does Not Apply To Subrogation Communication, Judge Says

SCRANTON, Pa. — A Pennsylvania federal judge on July 29 partially denied a disability insurer’s motion for a protective order regarding information sought in depositions after determining that the fiduciary exception to the attorney-client privilege does not apply to communications regarding the administration of the disability plan concerning subrogation shared among the plan, its fiduciaries and any attorney assisting in the administration of the plan prior to the filing of the disability claimant’s lawsuit (Eric Yost, et al. v. Anthem Life Insurance Co., No. 3:16-cv-00079, M.D. Pa., 2019 U.S. Dist. LEXIS 125967).
August 05, 2019
Social Media, Cell Phone Info Must Be Provided In ‘Netflix N’ Chill’ Lawsuit

SIOUX FALLS, S.D. — A plaintiff suing her former school district for constitutional violations and discrimination related to a school newspaper comment must provide discovery related to her electronic communications and cell phone, a South Dakota federal magistrate judge ruled Aug. 1, granting the school district’s motion to compel but limiting the timeframe and establishing guidelines to protect private and privileged information (Addison Ludwig v. Elk Point-Jefferson School District 61-7, et al., No. 4:18-cv-04091, D. S.D., 2019 U.S. Dist. LEXIS 128630).
August 02, 2019
Judge: DuPont Fails To Show ‘Good Cause’ For Mental Exam Of C8 Plaintiff

COLUMBUS, Ohio — A federal judge in Ohio on July 30 denied E.I. DuPont de Nemours & Co.’s motion to reconsider a previous discovery order that denied DuPont’s request to subject a plaintiff in the multidistrict litigation related to perfluorooctanoic acid (known as C8) to a mental examination. The judge said DuPont failed to show “good cause” for the examination in question (In re: E.I. du Pont de Nemours and Co. C8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio, 2019 U.S. Dist. LEXIS 128174).
August 01, 2019
Florida Court Rejects Premises Owner’s Attempt To Escape Deposition

MIAMI — An asbestos case remains too underdeveloped for a determination of whether a plaintiff’s proposed deposition of a corporate representative exceeds the bounds of Florida law, a Florida appeals court held in dismissing a petition seeking a protective order on July 31 (Florida Power & Light Co. v. Larry E. Cook, No. 3D19-506, Fla. App., 3rd Dist.).
August 01, 2019
New York Court Won’t Quash Out-Of-State Subpoena In Asbestos Insurance Case

ROCHESTER, N.Y. — The former head of claims for an insurer defending an insured’s suit seeking costs associated with battling asbestos cases must sit for deposition, a New York appeals court held July 31 (In the Matter of Linda Martin Barber v. BorgWarner Inc., et al., No. 130 CA-18-00738, N.Y. Sup., App. Div., 4th Dept., 2019 N.Y. App. Div. LEXIS 5939).
July 31, 2019
4th Circuit Remands Insurance Bad Faith Case In Light Of Discovery Ruling

RICHMOND, Va. — In an insurance bad faith action against an insurer for its failure to defend an insured in a construction defect action, the Fourth Circuit U.S. Court of Appeals on July 25 remanded to a district court for instructions in accordance with the South Carolina Supreme Court’s ruling that “denying liability and/or asserting good faith in the answer does not, standing alone,” waive attorney-client privilege for claim files addressing the insurer’s reinsurance and reserves (In re: Mt. HawleyInsuranceCo., No. 18-1401, 4th Cir., 2019 U.S. App. LEXIS 22356).
July 30, 2019
Zofran Birth Defect MDL Judge: Plaintiff Consultant Is Subject To Discovery

BOSTON — The Massachusetts federal judge overseeing the Zofran birth defect multidistrict litigation on July 25 ordered plaintiffs’ counsel and a plaintiffs’ epidemiologist to produce to defendant GlaxoSmithKline LLC (GSK) documents the researcher used in writing a medical journal article on which the plaintiffs rely for causation and to disclose her communications and financial arrangements with plaintiffs’ counsel (In Re: Zofran [Ondansetron] Products Liability Litigation, MDL Docket No. 2657, No. 15-md-2657, D. Mass., 2019 U.S. Dist. LEXIS 123913).
July 29, 2019
Discovery Largely Granted In Asbestos Case Against Aerospace Company

PHILADELPHIA — Lockheed Martin Co. must largely respond to a motion to compel discovery regarding it and its subsidiaries liabilities stemming from a man’s exposure to asbestos in both the U.S. Navy and private employment, a federal magistrate judge in Pennsylvania said July 25 (Robert J. Kraus, et al. v. Alcatel-Lucent, et al., No. 18-2119, E.D. Pa.).
July 26, 2019
J&J Renews Effort To Block Deposition Over CEO’s Televised Asbestos-Talc Comments

NEW YORK — A miscommunication led a judge to believe a motion for rehearing was untimely, and nothing in an executive’s television appearance warrants allowing asbestos-talc plaintiffs to depose him, Johnson & Johnson entities told a New York justice in a July 25 court document viewed by Mealey Publications (Donald Minassian, et al. v. Brenntag North America, et al., No. 190399/2018, N.Y. Sup., New York Co.).
July 25, 2019
Opioid MDL Judge Allows Access To DEA Opioid Database From 2006 To 2012

CLEVELAND — The Ohio judge overseeing the opioid multidistrict litigation on July 15 lifted a protective order for ARCOS drug distribution data from before Dec. 31, 2012, saying there is “clearly no basis to shield the public view” of the data (In Re: National Prescription Opiate Litigation, MDL Docket No. 2804, No. 17-md-2804, N.D. Ohio, Eastern Div.).