Mealey's Discovery
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August 22, 2023
Judge Adopts Report As To Expert Testimony In ‘Vitamin Energy’ Coverage Suit
PHILADELPHIA —A federal judge in Pennsylvania adopted a magistrate’s report that recommended denying the manufacturer and marketer of a vitamin energy shot’s motion to exclude the testimony of the insurer’s expert to the extent it seeks to exclude the expert from testifying altogether in a coverage dispute arising from an underlying false advertising lawsuit brought by a competitor.
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August 22, 2023
Justice Denies Automaker Digestive Testing Of Mesothelioma Sufferer’s Tissue
NEW YORK — An automaker defending an asbestos case will do without digestive testing of the man’s pleural tissue after a New York justice said the case lacks the type of unusual circumstance required for post-trial setting discovery and that an expert never established that the need for the testing outweighs the mesothelioma sufferer’s safety.
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August 21, 2023
Lawsuit Over PTO Response To FOIA Requests Dismissed In D.C.
WASHINGTON, D.C. — A District of Columbia federal judge has dismissed a patent owner’s challenge to the withholding of records by the U.S. Patent and Trademark Office (PTO) with regard to the Patent Trial and Appeal Board’s practice of using expanded panels during certain board proceedings.
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August 18, 2023
Amici Say Potential Fraud Warrants Unsealing Lawyer’s Complaint
LOS ANGELES — A bankrupt asbestos defendant and an industry group, acting as amici curiae, tell a California court that the possibility that an asbestos attorney’s lawsuit against his former employer could reveal ongoing fraud and misconduct warrants unsealing the unredacted version of his complaint.
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August 17, 2023
No Evidence Of Bankruptcy Trust Shenanigans, Judge Says
GREAT FALLS, Mont. — While a railroad claims that plaintiffs are intentionally delaying submissions to the W.R. Grace & Co. bankruptcy trust, the evidence shows that resolution of those types of claims can take upward of 20 years, a federal judge in Montana said in declining to stay the case and finding that a railroad could not attempt to pin liability on W.R. Grace, settled defendants or the state of Montana under state law.
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August 17, 2023
PFAS Plaintiffs Say DuPont Is Not Entitled To Discovery Regarding Settlement Costs
ALBANY, N.Y. — Plaintiffs in a per- and polyfluoroalkyl substances (PFAS) case against E.I. du Pont de Nemours and Co. filed a brief in New York federal court arguing that DuPont is requesting to pursue unnecessary discovery to which it is not entitled related to per-person cost data used to calculate a medical monitoring settlement.
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August 16, 2023
Monetary Sanction Against Counsel Awarded Over Reinsurance Disclosure Issue
MUSKOGEE, Okla. — An Oklahoma federal judge awarded plaintiffs $13,748.66 because of failure “to timely disclose” a reinsurance policy and failure “to comply with the court’s settlement conference order and the court’s local rules” in an excessive force suit involving a death.
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August 16, 2023
Magistrate Judge Rules On 2 Discovery Motions In Landfill Contamination Dispute
COLUMBUS, Ohio — In partly granting one and fully denying a second discovery motion filed by a company sued by the Goodyear Tire & Rubber Co. for response costs under the Comprehensive Environmental Response, Compensation, and Liability Act arising from the cleanup of a former industrial and municipal landfill, an Ohio federal magistrate judge ordered Goodyear to produce evidence of response costs it received through settlement agreements with other potentially responsible parties.
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August 15, 2023
Judge Affirms Order Quashing Asbestos-Talc Subpoena To Medical Provider
NEWPORT NEWS, Va. — A magistrate judge properly concluded that a subpoena seeking information related to an asbestos-talc study for use in other litigation was only minimally related to the case and would place an undue burden on the party, a federal judge in Virginia said Aug. 14 in affirming the ruling.
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August 14, 2023
In Post-Trial Briefs, Parties Spar Over Nonpublic Info On Captive Reinsurer
WILMINGTON, Del. — Post-trial briefs have been filed in the Delaware Court of Chancery in a suit over a captive reinsurer that issued dividends totaling approximately $1.2 billion, with a hedge fund arguing that it is entitled to nonpublic information under Delaware law and a public holding company asserting several contentions against that premise.
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August 11, 2023
Asbestos Referral Fee Ruling Sends ‘Embarrassment’ Of Case Back To 4th Circuit
BALTIMORE — The Fourth Circuit U.S. Court of Appeals will once again confront a case a judge on the court previously described as “an embarrassment to the legal profession,” after lawyers and law firms hit with more than $1 million in fees and costs for “never once” complying with court-ordered discovery in a dispute over asbestos case referrals filed a notice of appeal on Aug. 10.
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August 11, 2023
Fiduciary Exception Applies In Disability Discovery Dispute, Magistrate Judge Says
MINNEAPOLIS — A Minnesota federal magistrate judge determined that a disability claimant is entitled to communications between a disability insurer and its attorney because the communications are exempted from protection under the fiduciary exception in the Employee Retirement Income Security Act as the communications occurred before the development of an adversarial relationship between the clamant and the disability insurer.
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August 11, 2023
Musk Denied Rehearing By 2nd Circuit In SEC Consent Decree Challenge
NEW YORK — The Second Circuit U.S. Court of Appeals in a two-sentence order denied a petition for rehearing or rehearing en banc filed by Elon Musk after the panel affirmed a trial court’s ruling finding that a consent decree between Musk and the U.S. Securities and Exchange Commission regarding Musk’s communications about his company on social media should not be modified or terminated.
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August 10, 2023
U.S. Says Section 1782 Discovery Doesn’t Apply To ICSID In Amicus Brief
NEW YORK — The United States on Aug. 9 weighed in on a discovery dispute pending before the Second Circuit U.S. Court of Appeals, arguing in an amicus curiae brief that the court should affirm a ruling quashing an Italian company’s subpoena seeking discovery for use before an International Centre for Settlement of Investment Disputes (ICSID) tribunal because ICSID tribunals are “ad hoc” entities not “imbued with governmental authority.”
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August 08, 2023
DOL Asks 2nd Circuit To Order Ruling On Subpoena Enforcement Bid
NEW YORK — Acting U.S. Department of Labor (DOL) Secretary Julie Su has asked the Second Circuit U.S. Court of Appeals to direct a New York federal court to rule on a petition pending for more than two years in which the DOL seeks enforcement of an administrative subpoena issued in an Employee Retirement Income Security Act investigation.
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August 03, 2023
2nd Circuit Told Section 1782 Discovery Doesn’t Apply To ICSID Arbitrations
NEW YORK — The Republic of Panama and an engineering company in an appellee brief tell the Second Circuit U.S. Court of Appeals that it should affirm a ruling quashing an Italian company’s subpoena seeking discovery for an International Centre for Settlement of Investment Disputes (ICSID) case, writing that under recent U.S. Supreme Court precedent a court cannot help a party obtain discovery for a “private investor-State arbitration proceeding.”
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August 03, 2023
Mesothelioma Defendants Defend Need For Blood Draw, Genetic Testing
LOS ANGELES — A couple alleging that a man’s asbestos exposure led to his mesothelioma cannot now seek to block a blood draw for genetic testing that could potentially identify a genetic mutation that could go to the heart of the causation question in the case, defendants tell a California judge.
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August 02, 2023
Apple Wants Confidential Materials Sealed In Privacy Suit Over Siri Recording
OAKLAND, Calif. — Responding to a motion to consider whether certain deposition materials should be sealed, which was filed by the plaintiffs in a putative class action over purported unauthorized recording by Apple Inc.’s Siri, Apple asked a California federal court to seal the items because they contain “highly confidential and proprietary sensitive information” about the digital personal assistant.
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August 01, 2023
Washington Appeals Court Reverses Medicaid Data Order In Opioid Case
SEATTLE — The Washington Court of Appeals on July 31 reversed a state trial court’s ruling allowing the release of certain information about opioid-related Medicaid claims to defendants Johnson & Johnson and Janssen Pharmaceuticals Inc.
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August 01, 2023
Judge Won’t Expedite Briefing In Discovery Dispute Between AI Cofounders
SAN FRANCISCO — Although the cofounder of an artificial intelligence program adequately explains “what otherwise might appear to be an undue delay,” he has not demonstrated the need for expedited briefing on early discovery, a federal judge in California said July 31 in denying his motion.
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July 31, 2023
Pacing, Discovery At Issue In Artificial Intelligence $100 Share Sale Case
SAN FRANCISCO — Parties to a suit claiming that the cofounder of artificial intelligence Stability AI was duped into selling billions of dollars in shares for $100 briefed the need to expedite the case, limited early discovery, with the defendant saying in a July 28 brief that the plaintiff unjustly delayed filing the case and seeks to escape federal rules.
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July 28, 2023
FCA Suit Relator May Depose Officers But Cannot Compel Litigation Hold Notices
INDIANAPOLIS — A health care firm’s former employee, who alleges that his termination was due to whistleblowing, may conduct targeted depositions of certain company representatives regarding spoliation of evidence, an Indiana federal magistrate ruled, granting in part a motion to compel production by the relator in a qui tam action over alleged False Claims Act (FCA) violations, while denying his request to compel production of the litigation hold notices the company issued to employees.
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July 27, 2023
Prisoner Class Must Respond To Mandamus Petition In Vaccine Distribution Case
SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals ordered prisoners suing over Oregon’s COVID-19 vaccine rollout to file an answer to the state’s petition for a writ of mandamus, which challenges a trial court’s order compelling the deposition of the former governor.
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July 27, 2023
Emergency Stay Bid Withdrawn From U.S. Supreme Court In Microcaptive Info Dispute
WASHINGTON, D.C. — Citing an agreement with the United States, the Delaware Department of Insurance (DDOI) on July 26 withdrew an emergency application it filed in the U.S. Supreme Court less than a week earlier in the corporate privacy case involving microcaptive insurance company information.
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July 27, 2023
Named Plaintiff In Ford Transmission Class Case Sanctioned For Trade-In
CHICAGO — A named plaintiff in a consolidated putative class lawsuit accusing Ford Motor Co. of selling and leasing certain F-150 trucks with defective transmissions breached his preservation duty when he traded in his vehicle with no notice to Ford, a federal judge in Illinois ruled, granting the vehicle maker’s motion for sanctions and dismissing that plaintiff’s claims.