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Mealey's Discovery

May 23, 2019
DOJ Must Disclose T-Mobile Memorandum In Trade Secret Theft Suit Against Huawei

SEATTLE — A memorandum between the U.S. Department of Justice (DOJ) and T-Mobile USA Inc., the alleged victim of trade secret theft by Huawei Device Co. Ltd., is discoverable in the government’s criminal trade secret lawsuit against the technology firm, a Washington federal judge ruled May 22, finding it to be nonprivileged and material to the claims against Huawei (United States v. Huawei Device Co. Ltd., et al., No. 2:19-cr-00010, W.D. Wash.; 2019 U.S. Dist. LEXIS 86334).
May 23, 2019
Pennsylvania Panel Partially Vacates Ruling Suppressing Evidence Of Fire

HARRISBURG, Pa. — A Pennsylvania appeals panel on May 21 vacated in part a lower court judge’s ruling suppressing the admission of a draft report prepared by an expert regarding the cause of a fire that was allegedly started to submit a fraudulent insurance claim, ruling that a search warrant issued to obtain the report was valid and that the report was not protected from disclosure by the work product doctrine (Pennsylvania v. Shawn Anthony Schaefer, No. 1204 WDA 2018, Pa. Super., 2019 Pa. Super. Unpub. LEXIS 1981).
May 22, 2019
Judge Affirms Discovery Ruling In Trade Secret Misappropriation Suit

SAN DIEGO — A federal magistrate judge did not err in finding that a plaintiff in a trade secret misappropriation lawsuit against its competitor in the compact garden hose manufacturing industry correctly applied Delaware’s reasonable particularity rule in determining that the plaintiff had sufficiently identified the trade secrets it alleges were misappropriated with the necessary particularity, a federal judge in California ruled May 20 (Yeiser Research & Development LLC v. Teknor Apex Co., No. 17-1290, S.D. Calif., 2018 U.S. Dist. LEXIS 141969).
May 21, 2019
Law Firm Files FOIA Suit To Obtain Tesla, Musk Documents From SEC

WASHINGTON, D.C. — A law firm representing the plaintiffs in a securities class action against Tesla Inc. and its chief executive officer, Elon Musk, filed a lawsuit against the U.S. Securities and Exchange Commission May 15, asking a District of Columbia federal court to compel the SEC to provide documents related to its investigation of Musk and Tesla, which the law firm requested under the Freedom of Information Act (FOIA) (Levi & Korinsky LLP v. U.S. Securities and Exchange Commission, No. 1:19-cv-01409, D. D.C.).
May 20, 2019
Reddit Must Identify Doe Jehovah’s Witness Poster For ‘Attorney’s Eyes Only’

SAN FRANCISCO — Granting in part a motion to quash a subpoena to identify an anonymous poster to a Jehovah’s Witness-themed online forum, a California federal magistrate judge on May 17 ordered that the John Doe’s identity be revealed only to counsel so as to protect the poster’s free speech concerns, while still allowing a church-related organization to pursue copyright infringement claims over two of Doe’s posts (In re DMCA Subpoena to Reddit Inc., No. 3:19-mc-80005, N.D. Calif.).
May 17, 2019
3rd Circuit Reverses Sealing Of Documents In Avandia Summary Judgment Appeal

PHILADELPHIA — In a split ruling, the Third Circuit U.S. Court of Appeals on May 15 reversed a district court’s denial of a motion to unseal underlying documents created by GlaxoSmithKline LLC (GKS) in the Avandia multidistrict litigation and remanded for application of the common-law right of access and for a document-by-document review (In Re: Avandia Marketing, Sales Practices and Products Liability Litigation [United Food and Commercial Workers Local 1776, et al.], Nos. 18-2259 and 18-2656, 3rd Cir., 2019 U.S. App. LEXIS 14470).
May 16, 2019
Lago Agrio Attorney: Chevron’s Motion To Compel Deposition ‘Rife With Bad Faith’

NEW YORK — Steven R. Donziger, the attorney who won an $18.5 billion judgment against Chevron Corp. in a court in Ecuador for injuries only to have it reversed, on May 7 filed a brief in New York federal court contending that Chevron’s motion to compel the deposition of Donziger’s wife, Laura Miller, “is rife with bad faith and ugly harassment” (Chevron Corporation v. Steven Donziger, No. 11-691, S.D. N.Y.).
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
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 8, 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 8, 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 8, 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 7, 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 6, 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 6, 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 6, 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 3, 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 1, 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 1, 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.).