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Mealey's Discovery

February 24, 2023
Government Must Testify In Medicare-Asbestos Fraud Case, Judge Says

MISSOULA, Mont. — A federal judge in Montana granted a joint motion to compel trial testimony from two government entities on possibly fraudulent Medicare claims stemming from Libby, Mont., asbestos exposures, saying that they alone possessed the information and that the evidence was material to the case.
February 24, 2023
Amici Warn Of Fallout From SEC’s Subpoena Of Privileged Materials From Covington

WASHINGTON, D.C. — Responding to a District of Columbia federal judge’s order to show cause, four amicus curiae briefs were submitted condemning the Securities and Exchange Commission for its subpoena seeking client lists from law firm Covington & Burling LLP and warning of harmful consequences to the attorney-client privilege.
February 24, 2023
After Lengthy Abeyance, Supreme Court Dismisses Securities Discovery Suit

WASHINGTON, D.C. — Almost a year and a half after placing a dispute over the discovery stay provision of the Private Securities Litigation Reform Act (Reform Act) in abeyance at the parties’ request, the U.S. Supreme Court granted the parties’ joint motion to dismiss the case, to which certiorari had initially been granted, in light of a recently approved $2.75 million settlement,
February 23, 2023
‘Devastating Consequences’ If Study Subject Identities Are Released, Briefs Warn

NEW YORK — Expert Jacqueline Moline, her employer and an asbestos plaintiff tell a federal judge in New York in Feb. 22 letter briefs that experts on both sides agree that study participants retain an expectation of privacy even if their information becomes available through other means and warn of the “devastating consequences” should the court deviate from that bedrock principle and require disclosure of their identities.
February 23, 2023
Asbestos Settlements But Not Communications Discoverable, Magistrate Says

KANSAS CITY, Kan. — A man must provide an asbestos-talc defendant with settlement agreements he reached, but the communications behind those agreements are a “different animal” and not discoverable, a federal magistrate judge in Kansas said Feb. 22.
February 23, 2023
D.C. Circuit Affirms $1.5M Sanctions Award Against Romania For Discovery Dispute

WASHINGTON, D.C. — A District of Columbia U.S. Court of Appeals panel affirmed a federal court’s imposition of $1.5 million in sanctions against the government of Romania for failure to comply with discovery orders issued in relation to post-judgment enforcement of an arbitral award it was ordered to pay to Swedish investors and their companies worth more than $356 million, rejecting all of Romania’s arguments challenging the propriety of sanctions.
February 22, 2023
Wikimedia Denied Certiorari Over State Secrets Privilege In NSA Surveillance Suit

WASHINGTON, D.C. — Wikimedia Foundation’s challenge to the dismissal of its lawsuit over the National Security Agency’s upstream surveillance program came to an end on Feb. 21, when the U.S. Supreme Court denied Wikimedia’s petition for certiorari, declining to consider whether a trial court properly invoked the state secrets privilege in disposing of the case.
February 21, 2023
Limited Discovery Granted In ERISA Preemption Suit Over N.J. Severance Changes

TRENTON, N.J. — Ruling that “additional discovery is necessary for Defendants to properly respond,” a New Jersey federal judge denied a summary judgment motion without prejudice in a dispute over whether the Employee Retirement Income Security Act expressly preempts amendments to the New Jersey WARN Act that require severance for employees who are part of a “mass layoff.”
February 16, 2023
Insurer Must Produce Financial Records As They Are Relevant To Bad Faith Claim

RIVERSIDE, Calif. — An insured seeking coverage for groundwater contamination at a county airport is entitled to discovery regarding the financial condition of an excess insurer’s parent and affiliate companies because the financial information is relevant to the insured’s allegation that the insurer had a financial motive for acting in bad faith when it stopped reimbursing the insured for remediation costs, a California federal magistrate judge said in denying the insurer’s motion for a protective order.
February 16, 2023
Magistrate Judge Refuses To Set Aside Appraisal Award But Reopens Discovery

DENVER — A Colorado federal magistrate judge on Feb. 13 refused to set aside an appraisal award in a water and mold damage coverage dispute but determined that discovery in the insureds’ suit should be reopened to explore whether or not the appraisal proceeding was tainted by any bad faith conduct on the part of the insurer or the insurer’s appraiser.
February 16, 2023
New York Justice Affirms Standard Interrogatories In Asbestos-Talc Cases

NEW YORK — The justice overseeing New York City asbestos litigation affirmed standard interrogatories crafted by the court’s special master in consultation with counsel, saying the absence of such discovery delays the process in asbestos-talc cases.
February 16, 2023
Recommendation Would Mostly Grant Enforcement Of Summons In Microcaptive Probe

TAMPA, Fla. — Citing a recent 11th Circuit U.S. Court of Appeals decision, a federal magistrate judge in Florida recommended that a petition for enforcement of an Internal Revenue Service summons be mostly granted and an insurance consultancy’s motion to limit the summons be mostly denied.
February 15, 2023
Plaintiffs: Flint Defense Parties’ Hotel Records Obtained Validly, Are Relevant

ANN ARBOR, Mich. — The Flint water crisis plaintiffs filed a brief in Michigan federal court opposing a defendant engineering firm’s motion to seal documents and seeking a protective order, arguing that records related to the hotel stay of the defendants’ attorneys and witnesses during the bellwether trial are relevant and were obtained with a subpoena that was “valid and unchallenged.”
February 15, 2023
Firefighting Foam Defendants Seek To Seal Portions Of Depositions, Other Documents

CHARLESTON, S.C. — The defendants in the multidistrict litigation for injuries related to the firefighting agent aqueous film forming foam (AFFF) have moved in South Carolina federal court to seal portions of expert depositions and documents related to the manufacturing process for surfactants used in AFFF.
February 14, 2023
D.C. Circuit Court Remands FOIA Suit Over ID Of Supplier Of Execution Drug

WASHINGTON, D.C. — The District of Columbia Circuit U.S. Court of Appeals has reversed a district court finding that the identity of the company that supplies the U.S. Bureau of Prisons with pentobarbital is exempt from disclosure under the Freedom of Information Act (FOIA) and remanded the case.
February 13, 2023
Bitcoin Miner’s Estate Blasts Jury Instructions, Discovery Sanctions In 11th Circuit

ATLANTA — In a five-year-old suit over the ownership of a multibillion-dollar bitcoin fortune, the estate of a purported partner in a mining venture filed a reply brief, asking the 11th Circuit U.S. Court of Appeals to find that issue sanctions should have been granted against the decedent’s former business partner for discovery violations and perjury and to remand the case for a new trial with jury instructions that are in line with current Florida law on business partnerships.
February 10, 2023
Employer, Talc Defendant Battle Over Sanctions After Rejection Of Subpoena

NEWPORT NEWS, Va. — An expert’s employer asked a court for nearly $100,000 in attorney fees and costs in the wake of the judge’s decision that a subpoena constituted an undue burden. But in response, an asbestos-talc defendant says it was the only party willing to compromise and should not be sanctioned.
February 10, 2023
Asbestos-Talc Defendant Objects To Ruling Quashing Subpoena

NEWPORT NEWS, Va. — An asbestos-talc defendant tells a federal court in Virginia in its objection to an order quashing a subpoena that its narrowed request seeks clearly relevant information and that if medical ethics did not prevent the expert from relying on patient identities in a paper, they would not preclude releasing the subject’s identities under a protective order.
February 10, 2023
Magistrate Permits Search Of Cell Tower Records For Sex-Trafficking Investigation

CHICAGO — The U.S. Department of Justice was granted an application for a warrant to search cell tower data as part of its investigation of several violent crimes in Chicago that included sex trafficking, with an Illinois federal magistrate judge finding that proposed protocols within the warrant sufficiently safeguard third-party privacy interests for uninvolved individuals whose data might be included in the search results.
February 08, 2023
Bid And Valuation Production Ordered In DUFTA Suit Concerning LTC Insurer

WILMINGTON, Del. — Finding bid and valuation documents “relevant to Plaintiffs’ claims and proportional to the needs of the case,” a Delaware Chancery Court vice chancellor granted a motion to compel their production in a putative class suit alleging fraudulent transfers from an insurance subsidiary on which more than 1 million policyholders depend for long-term care (LTC) insurance disability benefits.
February 08, 2023
Sex Assault Victim Asks High Court To Find Mental Health Records Are Privileged

WASHINGTON, D.C. — A military appeals court’s finding that a victim’s mental health diagnoses and treatments are not privileged runs counter to Supreme Court precedent and jeopardizes the ability of victims, especially minors, to seek help after an assault, a sexual assault victim says in her petition for certiorari in which she asks the U.S. Supreme Court to protect and affirm the psychotherapist-patient privilege as described in Military Rule of Evidence 513.
February 07, 2023
Pfizer Must Produce FBI Communications In Trade Secret Lawsuit

NEW HAVEN, Conn. — Concluding that Pfizer Inc. did not establish that email and text communications between it and the Federal Bureau of Investigation were protected by either the attorney-client privilege or the work product doctrine, a Connecticut federal judge granted a motion to compel discovery of those documents to the defendants in a trade secret misappropriation lawsuit over the development of a diabetes treatment.
February 07, 2023
Singapore Firm May Subpoena Meta To Identify Purported Defamatory Poster

OAKLAND, Calif. — A foreign-based payment platform operator sufficiently tailored the scope of a discovery subpoena it sought to serve on Meta Platforms Inc., a California federal judge found, granting the applicant’s motion to pursue limited discovery to identify a Facebook user for the purpose of pursuing a defamation lawsuit against him or her in Japanese court.
February 07, 2023
Plaintiffs’ Counsel Bankrolls Expert’s Employer, Asbestos-Talc Defendant Claims

NEW YORK — Various plaintiff-side law firms paid $569,015 to asbestos-talc expert Jacqueline Moline’s employer, with in excess of $32,000 being paid by counsel in a case involving a challenge to her opinions, a company tells a federal judge in New York in a motion for leave to supplement its opposition to a motion to quash a subpoena aimed at discovering information underpinning Moline’s study.
February 02, 2023
Landowners: ‘No Valid Reason’ For Order To Stop Discovery In Abandoned Well Case

WHEELING, W.Va. — Landowners who are suing a hydraulic fracturing operator on Feb. 1 filed a brief in West Virginia federal court contending that “there is no valid reason” to grant the operator’s motion to disqualify the plaintiffs’ counsel, nor is there a reason to issue a protective order to stop discovery of non-public information while the motion to disqualify is pending.