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Mealey's Discovery

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.
February 02, 2023
Protective Order Issued In Coverage Dispute Over Sewer Pipe Break

SEATTLE — A federal magistrate judge in Washington granted a stipulated protective order designating certain materials to be submitted as confidential in a coverage dispute stemming from a contractor’s faulty construction of a conveyance pipe for a sewer overflow control project because the coverage suit is proceeding simultaneously with the underlying construction defects lawsuit.
February 02, 2023
Magistrate Denies Relator’s Motion For Protective Order In FCA Suit Over CMS Bids

LOUISVILLE, Ky. — A Kentucky federal magistrate judge denied a relator’s motion for a protective order regarding an expert’s supplemental deposition in a False Claims Act (FCA) suit alleging that Humana Inc. knowingly submitted false bids to the Centers for Medicare and Medicaid Services (CMS), resulting in overpayment to Humana, finding that the relator failed to show that “good cause exists for a protective order limiting the scope” of the deposition.
February 02, 2023
Law Firm, Asbestos Claimants Appeal HONX Rulings To District Court

HOUSTON — A Dallas law firm and the hundreds of asbestos personal injury claimants it represents have appealed rulings by the federal bankruptcy court in the Chapter 11 case of Hess Corp. affiliate HONX Inc. scheduling an asbestos liability estimation hearing for the debtor, directing discovery production from the firm and threatening $10,000 daily “coercive” sanctions for noncompliance.
February 02, 2023
Parties In Reinsurance Indemnification Row Brief Legal Standards For Discovery

TRENTON, N.J. — In supplemental briefing ordered by a New Jersey federal court, parties in a dispute over indemnification for asbestos bodily injury claims argue which legal standard should apply to a motion to compel discovery.
January 30, 2023
Activist Group Seeks FDA Compliance With FOIA Requests For Adverse Vaccination Data

WASHINGTON, D.C. — A children’s advocacy group known for questioning the safety and efficacy of vaccinations sued the Food and Drug Administration seeking to compel the agency to comply with two Freedom of Information Act (FOIA) requests for records of the FDA’s safety monitoring of COVID-19 injections through the Vaccine Adverse Effects Reporting System (VAERS).
January 26, 2023
Alexa Eavesdropping Plaintiffs Accuse Amazon Of Flouting Court’s Discovery Order

SEATTLE — In a reply supporting a motion to compel, the plaintiffs in a putative class action over purported eavesdropping by Amazon.com Inc.’s Alexa digital assistant ask a Washington federal court to compel the online retailer to comply with a previous discovery order via the court-ordered custodial search terms rather than by using “technology-assisted review” (TAR).
January 25, 2023
Bestwall Asbestos Claimants Look To Take Dismissal Of Their Appeals To 4th Circuit

CHARLOTTE, N.C. — Asbestos personal injury claimants in the Chapter 11 case of Georgia-Pacific spinoff Bestwall LLC are seeking more time in North Carolina federal court to appeal to the Fourth Circuit U.S. Court of Appeals the dismissal of their challenges to a bankruptcy judge’s contempt finding against them for not providing complete information to the debtor in a discovery questionnaire.
January 25, 2023
Wikimedia Asks High Court To Resolve Questions Of State Secrets Privilege

WASHINGTON, D.C. — In a Jan. 24 reply brief supporting its petition for certiorari, Wikimedia Foundation tells the U.S. Supreme Court that its lawsuit alleging statutory and constitutional violations in the National Security Agency’s upstream surveillance activities was wrongly dismissed under the state secrets privilege despite the fact that it was “able to proceed based entirely on public evidence.”
January 24, 2023
Summons Enforcement Cases In IRS Captive Insurance Examinations Are Dismissed

FORT LAUDERDALE, Fla. — A Florida federal judge has approved identical stipulations dismissing three cases that stem from a U.S. petition to enforce Internal Revenue Service summonses issued as part of a tax liability examination related to captive insurance companies.
January 24, 2023
California Court: Trial Court Gave Talc Corporate Witness Too Much Leeway

LOS ANGELES — A company’s designated corporate witness is still just a lay witness subject to the same rules as any other litigant and may testify only to personal knowledge in an asbestos-talc case even in the face of a latent disease and the associated evidence difficulties, a California appeals court found Jan. 23 in reversing summary judgment after finding that a trial court erred in allowing Avon Products Inc.’s witness to channel knowledge she allegedly learned during an investigation.
January 24, 2023
J&J Debtor Seeks Names Of All 33 Participants In Asbestos-Talc Study

TRENTON, N.J. — LTL Management LLC, the Chapter 11 debtor holding all of Johnson & Johnson’s asbestos liabilities, is asking a New Jersey federal bankruptcy judge to order the occupational disease expert who conducted a study on the connection between asbestos in talcum powder and mesothelioma to produce the names of all 33 study subjects based on the discovery that one of the participants had also submitted a claim for occupational exposure to asbestos in addition to exposure to talc.
January 23, 2023
High Court Dismisses Certiorari Petition In Argued Attorney-Client Privilege Suit

WASHINGTON, D.C. — Two weeks after an oral argument session that was marked by acknowledged confusion among the justices, the U.S. Supreme Court on Jan. 23 dismissed as improvidently granted the writ of certiorari in a dispute over the proper application of the attorney-client privilege to “dual-purpose” documents.
January 23, 2023
Flint Plaintiffs: Defendant’s Digital Campaign Targeted Jurors During Trial

ANN ARBOR, Mich. — Flint water crisis litigation plaintiffs have filed a reply brief in Michigan federal court arguing that it should compel an engineering firm to produce documents related to an ongoing digital advertising campaign they say targeted jurors during the first bellwether lead contamination case. They also say the firm’s responses to the plaintiffs’ motion to compel do not comply with Federal Rule of Civil Procedure 36(a)(4).
January 19, 2023
Government: ‘Burden’ Of Producing Documents In AFFF Case ‘Outweighs’ The Benefit

CHARLESTON, S.C. — The U.S. government has filed a brief in South Carolina federal court in the multidistrict litigation for the firefighting agent known as aqueous film forming foam (AFFF), opposing a motion by the defendants’ co-lead counsel to compel the production of documents that were withheld based on the deliberative process privilege. The government maintains that the burden of producing the documents outweighs the benefit and is not proportional to the needs of the case.
January 17, 2023
Medical Provider Objects To Discovery In Insurance Pay Dispute

CLEVELAND — A special master ordered discovery production “wholly irrelevant” to the question of whether an insurer reasonably compensated a provider for emergency services, a plaintiff argues in a federal court in Ohio.
January 13, 2023
SEC Seeks To Compel Law Firm To Comply With Investigative Subpoena Over Cyberattack

WASHINGTON, D.C. — Citing a refusal by Covington & Burling LLP to disclose the names of 298 of its clients that were affected by a cyberattack, the Securities and Exchange Commission filed an application in District of Columbia federal court, seeking an order to show cause why the law firm should not be compelled to comply with an investigative subpoena by which the SEC says it wants to determine whether any material nonpublic information (MNPI) was compromised.
January 13, 2023
Musk Failed To Show Consent Agreement Modification Was Warranted, Panel Told

NEW YORK — A federal district court did not err in denying Elon Musk’s motion to quash portions of a Securities and Exchange Commission subpoena and terminate a consent agreement with the SEC because it properly ruled that the Tesla CEO failed to sufficiently meet his “burden of demonstrating a significant change in circumstances that justified modifying the consent agreement,” the government argues in an appellee brief filed in the Second Circuit U.S. Court of Appeals.
January 12, 2023
Disability Claimant Permitted To Depose Physician, Employee, Magistrate Judge Says

SALT LAKE CITY — Additional discovery in a disability benefits dispute is warranted based on exceptional circumstances in the handling of a claim for long-term disability benefits (LTD), a Utah federal magistrate judge said in allowing the disability claimant to depose the disability insurer’s physician and one of the insurer’s employees.
January 12, 2023
Disability Claimant Permitted To Depose Physician Employed By Disability Insurer

CHICAGO — An Illinois federal magistrate judge granted a disability claimant’s motion for limited discovery and said the claimant is permitted to depose a physician employed by the disability insurer because the claimant raised the possibility that the physician operated under a conflict of interest.
January 11, 2023
Magistrate Finds Rule 45 Discovery Subpoenas Can Be Served On Expert Witnesses

CHICAGO — After conducting a thorough examination of federal rules and case law from across the country, an Illinois federal magistrate judge concluded that Federal Rule of Civil Procedure 45 permits the issuance of a subpoena seeking documents on a nonparty expert witness who is testifying for an opponent.
January 10, 2023
Patent Owner’s Invoking Of Attorney Communication Waived Privilege, Judge Says

FORT LAUDERDALE, Fla. — A patent holder’s mention of a communication with its counsel as a defense to inequitable conduct claims put that communication at issue, a Florida federal judge found, agreeing with a magistrate’s finding that this waived any privilege in this communication and overruling the plaintiff’s objection to the magistrate’s ruling.
January 10, 2023
Discovery Disputes Put Brakes On Automakers’ Bids For Summary Judgment

NEW YORK — In a pair of opinions, a New York justice found that two automakers’ failure to produce routine discovery in an asbestos case warranted denying motions for summary judgment, even though the plaintiff indicated that discovery was closed.
January 09, 2023
Justices Admit Confusion Over Attorney-Client Privilege Application Tests

WASHINGTON, D.C. — During oral argument on Jan. 9 over whether the primary purpose or significant purpose test is appropriate for determining if a dual-purpose document can be protected by the attorney-client privilege, the justices of the U.S. Supreme Court on multiple occasions voiced confusion over the differences between the tests’ names and how courts can determine what percentage of a communication with a client constitutes privileged legal advice.
January 09, 2023
Gambia, Meta Settle 2 Discovery Requests Over Genocide Posts, Documents

WASHINGTON, D.C. — A District of Columbia federal judge signed and approved a stipulation between the Republic of the Gambia and Meta Platforms Inc. that partly resolves a discovery dispute in which the nation sought subpoenas compelling the Facebook operator to turn over social media posts and internal investigatory documents related to acts of genocide carried out by government officials in Myanmar.