Mealey's Discovery : Mealey's : Legal News & Analysis

Mealey's Discovery

June 08, 2023
Delaware Regulators Ask 3rd Circuit To Rehear Case Over Microcaptive Info

PHILADELPHIA — Arguing in part that a Third Circuit U.S. Court of Appeals panel’s ruling “conflicts with decisions of each of the other Circuit Courts of Appeals which have enunciated a” test for reverse-preemption under the McCarran-Ferguson Act (MFA), the Delaware Department of Insurance (DDOI) petitioned for rehearing and rehearing en banc.
June 08, 2023
Man: Asbestos-Talc Study Trial Stipulation ‘Speaks For Itself’

NEW YORK — A company’s “feigned confusion” about a promise not to introduce expert Jacqueline Moline’s 2020 study about asbestos and consumer talc usage during trial and request for clarification are “nonsensical,” a man tells a federal judge in New York in a June 7 letter.
June 07, 2023
In Liquid Mercury Spill Dispute, Pa. Federal Judge Excludes Undisclosed Damages

PITTSBURGH — A transportation company cannot bring damages regarding its costs of repaving areas that were damaged by spilled liquid mercury because the company did not raise the damages in its initial disclosures and never supplemented its disclosures, a Pennsylvania federal judge held in granting a recycling company’s motion to preclude the damages raised in an expert report filed by the transportation company that moved the mercury that later spilled at a storage terminal.
June 07, 2023
Walmart Must Provide Attorney Emails In Trade Dress Dispute With Vans Inc.

SANTA ANA, Calif. — Protections under the attorney-client privilege and the work product doctrine in an email chain between Walmart Inc. and its counsel were waived by disclosure of those emails to a third party and the assertion of an advice of counsel defense, a California federal magistrate judge ruled, granting a motion to compel by Vans Inc., which alleges trade dress infringement of multiple shoe designs by the retailer and its suppliers.
June 07, 2023
8th Circuit Quashes Tribal Parties’ Subpoenas In Election Redistricting Suit

ST. LOUIS — The legislative privilege shields lawmakers in North Dakota from complying with subpoenas issued by two Indian tribes and three Native American voters who are challenging the state’s redrawn legislative districts, a divided Eighth Circuit U.S. Court of Appeals panel held June 6, reversing a federal court’s ruling allowing the discovery requests.
June 07, 2023
Immigration Services Firm Threatened With Confinement For 2-Year Discovery Impasse

HARRISONBURG, Va. — Opining that the defendant in a dispute with its surety provider over immigration bonds has failed to comply with judgments, contempt findings and multiple discovery orders over a two-year period, a Virginia federal judge announced “a new course to resolve this languishing post-judgment” discovery dispute that includes confinement sanctions for the company’s principals if the defendant does not take advantage of one final opportunity to comply with the court’s orders.
June 06, 2023
Company Wants Clarity On Promise About Offensive Use Of Asbestos-Talc Study

NEW YORK — A talc defendant asked a federal court in New York for clarity on whether and when an asbestos expert, other witnesses and counsel can reference a now withdrawn study on causation, saying the promise to not use it “offensively” provides no real limitations.
June 06, 2023
Ford Says Expert, Settlements Warrant Directed Verdict, Amended Judgment

GREENSBORO, N.C. — A woman essentially concedes that her expert’s opinion was based on nothing more than his belief that asbestos friction products were dangerous unless proven otherwise, and settlements more than offset the jury’s entire $275,000 award and any fees, Ford Motor Co. argues in reply briefs in support of motions to amend the judgment and for directed verdict.
June 06, 2023
Missouri Jury Awards $9.7M For 39-Year-Old Woman’s Household Asbestos Exposures

ST. LOUIS — A Missouri jury awarded a widower and an estate $9.7 million for a woman’s take-home exposure to asbestos and resulting death from mesothelioma after the judge in the case said the plaintiff was entitled to sanctions for discovery violations.
June 02, 2023
Illinois: Monsanto’s Bid To Compel Discovery From State Agencies In PCB Case Fails

CHICAGO — Illinois filed a brief in federal court opposing a motion to compel discovery filed by Monsanto Co. in a polychlorinated biphenyls (PCBs) contamination case, arguing that its attempt to compel discovery “from every single Illinois state agency, department, commission, and so forth” should be denied because in litigation brought pursuant to the attorney general’s independent authority to act on behalf of the state, state agencies are not subject to party discovery.
May 26, 2023
Lawyer: ‘Creative Solutions’ Warrant Sealing Accidently Revealed Asbestos Info

LOS ANGELES — Parties to litigation are freely able to discuss facts outside of court and make the judge aware only after it becomes relevant, and courts are empowered to rely on creative solutions such as sealing evidence where necessary, an asbestos attorney tells a California appeals court in arguing that there was no need for him to make public accidently disclosed evidence in a now-settled employment lawsuit.
May 26, 2023
Magistrate: AI Concerns Among Reasons To Preclude Evidence Release In ERISA Case

SALT LAKE CITY — Citing in part potential concerns that competitors could use artificial intelligence and machine learning to create derivative products if a vendor’s health care guidance information were publicly released, a federal magistrate judge in Utah granted a motion for a protective order and rejected the argument that the Employee Retirement Income Security Act mandated release of the evidence.
May 25, 2023
Delaware Discovery Ruling Addresses Reserve Info, Reinsurance Communications

NEW CASTLE, Del. — A motion to compel insurers to produce documents relating to reinsurance communications and internal loss reserve information was granted in a Delaware court in a suit over more than $434 million in claimed losses after a landslide and explosion in September 2018 closed a natural gas pipeline for more than two years.
May 25, 2023
Parties In Meta Pixel Privacy Suit Told To Confer, Agree On ESI Preservation

SAN FRANCISCO — In a March 10 motion, Meta Platforms Inc. asks a California federal court to relate an 11th case with 10 already related cases in which patients of various hospitals and medical facilities have brought suit against the Facebook operator for purportedly installing its Pixel tool on the health care facilities’ respective online patient portals, thereby allowing it to surreptitiously collect patients’ protected health information (PHI).
May 24, 2023
Magistrate Judge Imposes $1M Sanction For Asbestos Fee Case Conduct

BALTIMORE — Defendants’ knowing failure to produce evidence and comply with court orders and a “lame attempt” to have a state court enjoin a federal court, all of which extended litigation over asbestos referral fees and wasted the court’s time, warrants more than $1 million as a sanction, a federal magistrate judge in Maryland said.
May 24, 2023
More Discovery Time Granted In Suit Over Canceled Lease Between Tribe, Campground

GREAT FALLS, Mont. — Noting that courts have broad discretion over discovery matters, a Montana federal judge granted a motion for additional time to complete supplemental discovery filed by a company that leased land from the Blackfeet Indian Nation for a campground on its reservation and was sued by the tribe when the lease was canceled by the Bureau of Indian Affairs (BIA).
May 23, 2023
Roofing Contractor Deficiently Responded To Interrogatories, Magistrate Judge Finds

FORT MYERS, Fla. — A roofing contractor inadequately responded to interrogatories by filing objections and substantive answers to questions from a manufacturer of roofing products, a Florida federal magistrate judge found in granting the manufacturer’s motion to compel and ordering the contractor to file new responses to the interrogatories and a new computation of the alleged damages it incurred from the manufacturer’s sprayable roofing projects.
May 22, 2023
Magistrate Judge Terminates Subpoena-Related Asbestos Expert, Employer Motions

NEW YORK — A federal magistrate judge in New York on May 19 granted a motion to modify subpoenas to an asbestos expert’s hospital employer and denied a motion seeking to compel subpoena responses, noting that production of the evidence to which the hospital doesn’t object has already occurred.
May 22, 2023
Plaintiff: Talc Expert Discovery Efforts Based On False Pretense, Fraud

NEW YORK — A defendant’s own expert undercuts its case for discovery into Jacqueline Moline’s study on talc-only exposures, and its shifting position in light of the withdrawal of the study exposes that the narrative it relied on was always a “charade” it always knew to be false, a man tells a federal judge in New York in seeking sanctions, while saying “this is fraud.”
May 22, 2023
Connecticut Judge Orders Production Of Discrete Class Of Undisclosed Communications

HARTFORD, Conn. — After conducting an in camera review of disclosed documents, a Connecticut judge concluded that directors and officers insureds waived their attorney-client privilege and ordered production of a discrete class of undisclosed communications that are covered by the waiver.
May 19, 2023
Briefly: Panel Says Expert Reports Not Privileged In Pipeline Explosion Case

HARRISBURG, Pa. — A Pennsylvania appellate court panel ruled that a hydraulic fracturing pipeline company’s expert reports are not privileged and therefore are discoverable in litigation brought by a midstream services company that is suing the pipeline company for breach of contract in relation to an explosion that damaged the pipeline and other property.
May 18, 2023
Magistrate Refuses To Compel Discovery In Roundup Case About Reneged Settlement Offer

ABINGDON, Va. — A federal magistrate judge in Virginia denied a motion to compel discovery sought by a cancer victim who is a non-citizen farm worker who contends that Monsanto and her former lawyers deprived her of her rights when they reneged on a settlement offer for injuries related to exposure to the herbicide Roundup. In the one-paragraph order, the magistrate judge did not elaborate on the reasoning for her decision.
May 18, 2023
Panel Denies Musk’s Claim That SEC Acted In Bad Faith, Nixes Bid To Quash Subpoena

NEW YORK — A panel of the Second Circuit U.S. Court of Appeals has affirmed a lower court ruling and held that there is no evidence to support Elon Musk’s contention that the U.S. Securities and Exchange Commission used a consent decree “to conduct bad-faith, harassing investigations of his protected speech,” with regard to something he tweeted about possibly taking his company Tesla private. As a result, the panel denied Musk’s bid to quash a subpoena and terminate a consent order that had been instituted in response to his tweeting behavior.
May 12, 2023
Woman Says Prevailing Party Costs Aren’t Subject To Offset After Asbestos Verdict

GREENSBORO, N.C. — Federal rules permit prevailing parties’ recovery of certain litigation expenses that are not subject to offsets, a woman awarded $275,000 by a jury for her relative’s death from mesothelioma told a federal judge in North Carolina in response to Ford Motor Co.’s post-trial motion to amend the verdict.
May 12, 2023
Disability Claimant Is Not Entitled To Information Related To Claims Evaluations

NASHVILLE, Tenn. — A disability claimant is not entitled to information related to long-term disability (LTD) claims evaluated by the same reviewers who evaluated her claim because producing the information would be burdensome to the disability insurer, a Tennessee federal magistrate judge said.