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Mealey's Discovery

September 11, 2023
Asbestos-Talc Defendants Seek To Exclude Moline’s Supplemental Disclosures

NEW YORK — Defendants in an asbestos-talc case accused the plaintiff of “gamesmanship” and urged a federal judge in New York to preclude supplemental expert disclosures, including a 2023 paper from asbestos expert Jacqueline Moline, saying the plaintiff sat on the evidence for months while the parties litigated a previous paper raising similar issues.
September 08, 2023
Meta Pixel Privacy Suit Discovery To Include Files Of Zuckerberg, Executives

SAN FRANCISCO — Meta Platforms Inc.’s searches for documents responsive to the discovery requests of the plaintiffs in a consolidated lawsuit over alleged sharing of patients’ protected health information (PHI) via Meta’s Pixel product will include searches of the files of six Meta executives, including its Chief Executive Officer Mark Zuckerberg, a California federal magistrate judge ruled, finding that their files were likely to include “unique, relevant information” that would not be available to other custodians who are junior employees.
September 07, 2023
DOL Wins Subpoena Enforcement Bid In ERISA Probe, Dismisses Mandamus Petition

NEW YORK — After the U.S. Department of Labor (DOL) won its long-pending bid for enforcement of an administrative subpoena issued in an Employee Retirement Income Security Act investigation, Acting DOL Secretary Julie Su successfully asked the Second Circuit U.S. Court of Appeals to dismiss her petition for a writ of mandamus.
September 01, 2023
Calif. Federal Judge Dismisses Citizen Groups’ Claims Challenging Tribal Casino

SACRAMENTO, Calif. — A citizen groups’ Freedom of Information Act (FOIA) claim is moot and its other claims challenging the Jamul Indian Village’s casino operations are futile because the village enjoys sovereign immunity, a California federal judge found in dismissing the groups’ claims without leave to amend.
August 31, 2023
Asbestos-Talc Defendant Objects To Fees Awarded After Failed Subpoena

NEWPORT NEWS, Va. — A company at the center of a dispute over subpoenas seeking information from an asbestos-talc study author and her company tells a federal judge in Virginia in an Aug. 30 memorandum that its narrowed discovery request was not unduly burdensome and did not warrant imposing more than $44,000 in fees and costs.
August 31, 2023
Subpoena Of Norfolk Southern’s Consultant In Ohio Case Is Valid, Plaintiffs Say

YOUNGSTOWN, Ohio — Plaintiffs who say they have been injured from exposure to toxic chemicals released from the train derailment in East Palestine, Ohio, have filed a brief in Ohio federal court arguing that their subpoena of a Norfolk Southern litigation consultant is valid and that they should not be required to withdraw the subpoena “simply based on Norfolk Southern’s blanket assertion of privilege.”
August 30, 2023
Bid For Non-Waiver And Clawback Order Fails In Microcaptive Summons Row

TAMPA, Fla. — Saying in part that two cases where the Internal Revenue Service agreed to entry of an order pursuant to Federal Rule of Evidence 502(d) are “distinguishable,” a Florida federal magistrate judge on Aug. 29 denied an insurance consultancy’s motion for a non-waiver and clawback order regarding material produced in response to an IRS summons.
August 30, 2023
Gambia, Meta Settle Remaining Discovery Disputes Over Myanmar’s Acts Of Genocide

WASHINGTON, D.C. — A three-year disagreement over whether Meta Platforms Inc. could be compelled to produce Facebook posts and messages of Myanmar officials came to a close when a District of Columbia federal judge approved the parties’ stipulation to enter final judgment and close the case in which the Republic of the Gambia had sought discovery to use in a proceeding regarding Myanmar’s acts of genocide.
August 30, 2023
2nd Circuit Upholds Forum Rule Application, Sanctions In WWE CTE Class, Mass Cases

NEW YORK — A trial court’s decisions to award World Wrestling Entertainment Inc. and Vincent K. McMahon (together, WWE) sanctions and apply the forum rule to determine the amount in a class tort complaint and a mass action brought by the same attorney on behalf of allegedly injured wrestlers were upheld by a Second Circuit U.S. Court of Appeals panel, which found that there was no abuse of discretion.
August 29, 2023
Motion To Quash Subpoena Denied In $5.6M RICO Suit Against New Jersey Pain Clinic

NEWARK, N.J. — A New Jersey federal magistrate judge on Aug. 28 denied a motion to quash GEICO’s subpoena served upon the New Jersey Office of the Insurance Fraud Prosecutor (OIFP) in a $5.6 million Racketeer Influenced and Corrupt Organizations Act (RICO) and fraud suit filed against a pain clinic and its owner and multiple chiropractic practices, alleging that the pain clinic unlawfully obtained personal injury protection (PIP) benefits by paying kickbacks to chiropractors in exchange for referrals, finding that the subpoena “does not unnecessarily hinder the OIFP and that the records may be disclosed.”
August 28, 2023
Discovery Row Outlined In Insurer’s Suit Over Alleged Fraud Scheme

NEW YORK — An insurer that alleges it sustained losses exceeding $135 million due to “systematic breaches of fiduciary duty, fraud, and other misconduct” has asked a New York federal court for a discovery conference over disputes with four defendants, which argue in an Aug. 25 opposition that the request should be denied because “[g]ood cause exists to shift expenses of discovery.”
August 24, 2023
Judge Orders Claimants To Give Names, Comply With CertainTeed Debtor’s Subpoena

CHARLOTTE, N.C. — Thousands of people who settled mesothelioma claims with CertainTeed Corp. or its spinoff debtor DBMP LLC must identify themselves and comply with the debtor’s subpoena seeking information they submitted to asbestos trusts because they did not show that there are “exceptional circumstances” allowing them to proceed anonymously, a North Carolina federal judge held in affirming a bankruptcy judge’s decision.
August 24, 2023
Covington, SEC Given 30 More Days To Appeal Order Compelling Client List

WASHINGTON, D.C. — In response to a joint stipulation filed by Covington & Burling LLP and the Securities and Exchange Commission, a District of Columbia federal judge stayed for another 30 days the execution of an order requiring the law firm to produce a list of the names of certain of its clients that the commission wants in conjunction with an investigation related to a cyberattack.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.