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Mealey's Discovery

July 18, 2024
Reinsurer Communication, ‘Apex Doctrine’ Discovery Disputes Decided In Coverage Row

SAN FRANCISCO — In separate orders resolving two discovery disputes in a breach of contract and bad faith suit over coverage for property damages wineries sustained during California wildfires, a California federal magistrate judge granted a motion to compel production of the insurer’s communications with reinsurers regarding the claims and denied an “apex doctrine” request to bar one of insurer’s employees from deposition.
July 18, 2024
Meta Opposes Pixel Privacy Plaintiffs’ Bid To Reopen Discovery Briefing

SAN FRANCISCO — Disputing that it has reached an impasse with the plaintiffs who sued it for privacy violations related to the Pixel tracking tool, Meta Platforms Inc. asked a California federal court to reject their “manufactured urgency” in discovery proceedings and maintain a magistrate-ordered briefing moratorium while the parties continue discovery negotiations.
July 11, 2024
Bankrupt Cosmetics Company Agrees To Discovery Requests By Asbestos Claimants

LOS ANGELES — A California federal bankruptcy judge approved a stipulation under which Chapter 11 debtor Ben Nye Co. Inc. and the company’s financial advisers will produce documents about the debtor’s financial affairs, the use of talc in its products and other topics to five asbestos personal injury law firms and their clients.
July 10, 2024
Denying FTC’s Motion To Compel Amazon Messages, Judge Instead Orders Deposition

SEATTLE — Acknowledging that production of Amazon.com Inc.’s internal litigation hold notices may ultimately be necessary to establish if any spoliation occurred due to its employees’ use of an ephemeral messaging app related to antitrust claims against it, a Washington federal judge on July 9 denied a motion by the Federal Trade Commission (FTC) to compel production of the notices, which are not generally discoverable, deeming it more appropriate for the commission to first depose an Amazon representative on the matter.
July 09, 2024
In Camera Review Ordered Of Clawed-Back Documents In Amazon Alexa Privacy Suit

SEATTLE — A Washington federal judge on July 8 found that plaintiffs who sued Amazon.com Inc. over the unauthorized recording and retention of private conversations sufficiently established “a good faith belief” that at least some of the more than 2,000 documents that the defendant clawed back from its discovery production were improperly withheld as privileged, granting their motion for in camera review of those documents.
July 09, 2024
Asbestos Lab Analyst’s Work With Longo Requires Deposition, Talc Company Says

ATLANTA — A lab analyst isn’t an “innocent bystander” but the person who actually peers into the microscope, makes observations about whether talc contains asbestos and collaborates closely with testifying witness William Longo in asbestos litigation, a talc company told a federal judge in Georgia in response to an objection to a magistrate judge’s ruling permitting the man’s deposition.
July 09, 2024
N.Y. Justice: Moline, Hospital Don’t Have To Disclose Asbestos Study Subjects

NEW YORK — Asbestos expert Jacqueline Moline and her employer obscured the names of individuals used on two of her studies on talc as required by law, and various Johnson & Johnson entities have not shown that they cannot challenge her opinions or adequately defend themselves absent the identity of those individuals, a New York justice said in granting a motion to quash and denying a motion to compel.
July 09, 2024
DOJ Tells Supreme Court Trump Twitter Warrant Complied With 1st Amendment

WASHINGTON, D.C. — Opposing a petition for certiorari by X Corp. (formerly known as Twitter Inc.), the U.S. Department of Justice (DOJ) tells the U.S. Supreme Court that a warrant that it obtained to search former President Donald J. Trump’s Twitter account and an accompanying nondisclosure order (NDO) did not violate executive privilege because they were issued in accordance with the First Amendment to the U.S. Constitution and the Stored Communications Act (SCA).
July 08, 2024
OpenAI, New York Times Debate Discovery Of Reporters’ Notes In AI Copyright Suit

NEW YORK — In letter briefing, the New York Times Co. (NYT) and OpenAI battle over whether copyright claims linked to artificial intelligence ChatGPT’s alleged reproduction of news articles permit discovery into reporters’ notes and associated materials underlying the stories.
July 05, 2024
Microsoft, OpenAI Defend Need For Consolidation Of Media AI Suits

NEW YORK — Companies at the heart of suits over artificial intelligence urged a federal judge in New York in July 3 reply briefs to consolidate two cases brought by various newspapers and grant additional time for discovery required by the sprawling nature of the allegations.
July 03, 2024
Tribes’ Privilege Question Goes Unanswered As High Court Deems Suit Moot

WASHINGTON, D.C. — An appeal over the scope of the legislative privilege by two Native American tribes was mooted by a trial court ruling in the underlying voter redistricting dispute, the U.S. Supreme Court held in its July 2 order list, in which it granted the tribes’ request to vacate an Eighth Circuit U.S. Court of Appeals mandamus petition related to two discovery orders.
July 03, 2024
Judge Allows Discovery To Be Reopened Before Trial In Groundwater Pollution Case

OKLAHOMA CITY — A federal judge in Oklahoma has ruled that an oil and gas exploration company that is a defendant in a groundwater contamination case may reopen discovery for the limited purpose of inspecting specific items on the plaintiffs’ property before trial because the plaintiffs will “face no undue or unfair prejudice” as a result.
July 02, 2024
Citing Prudential, Appellees Urge 3rd Circuit To Affirm Securities Row Dismissal

PHILADELPHIA — Arguing primarily that City of Warren Police and Fire Ret. Sys. v. Prudential Fin. is dispositive, a reinsurer and three former executives urge the Third Circuit U.S. Court of Appeals to uphold discovery and summary judgment rulings in a suit over allegations that they violated federal securities laws by omitting historical loss ratios from loss reserves disclosures.
July 01, 2024
3rd Parties In Train Derailment Case Want Norfolk Southern’s Evidence Stricken

YOUNGSTOWN, Ohio — Third-party defendants in the litigation against Norfolk Southern Railway Co. and Norfolk Southern Corp. (Norfolk Southern, collectively) related to toxic chemicals spilled during the train derailment in East Palestine, Ohio, have filed a reply brief in Ohio federal court arguing that “Norfolk Southern’s failure to comply with this Court’s order, especially given its concession that it only seeks derivative damages, warrants exclusion of evidence concerning its alleged remediation and response costs at trial.”
July 01, 2024
Magistrate Denies Motion To Quash Subpoena In Medicare Advantage Fraud Dispute

TAMPA, Fla. — One day after a Florida federal magistrate judge granted in part Medicare Advantage (MA) insurers’ motion to compel production of a litigation sharing agreement involving the relator in the instant case who alleged that medical providers and the insurers violated the False Claims Act (FCA), the magistrate judge on June 28 denied the insurers’ motion to quash a subpoena as untimely, finding that the delay in scheduling a deposition “will not prejudice” the insurers.
June 28, 2024
WhatsApp Seeks Letter Rogatory To Depose Spyware Firm’s Israel-Based Employees

OAKLAND, Calif. — In its motion for issuance of a letter rogatory to obtain the testimony of 11 witnesses residing in Israel, WhatsApp Inc. represents that these past and present employees of NSO Group Technologies Limited “have relevant information regarding” the company’s purported computer fraud, complaining that the defendant “has refused to make them available for depositions.”
June 27, 2024
Magistrate Denies Protective Order For Deposition In Fire Coverage Dispute

SCRANTON, Pa. — A Pennsylvania federal magistrate judge on June 26 denied an insurer’s motion for protective order regarding a proposed deposition in an insurance coverage dispute over fire damage, finding that the disputed deposition is relevant because it addresses whether the insurer knew of the alleged improper use of the covered space when previously investigating a water damage claim.
June 27, 2024
Suboxone MDL Judge Rejects Proposal By Defense For Phased Discovery

CLEVELAND — The judge overseeing the Suboxone film multidistrict litigation rejected a proposal by a defendant to phase discovery, finding “that general causation is not so clear or cleanly divisible from other general or case-specific discovery that bifurcation would materially expedite and simplify the proceedings in this MDL.”
June 26, 2024
Judge Allows Discovery Into Successor Status In Asbestos Valves Case

NEW ORLEANS — Because the only evidence of whether a company qualifies as the successor-in-interest of another is in the possession of the defendant, its motion to dismiss implicates evidence outside the pleadings and requires limited discovery into the question, a federal judge in Louisiana said in denying a motion.
June 26, 2024
Special Master Rejects J&J’s Motion To Inspect Asbestos Expert’s Lab

TRENTON, N.J. — The special master in the New Jersey federal court multidistrict litigation involving Johnson & Johnson talc denied a motion to inspect asbestos expert William Longo’s lab, saying the “unprecedented” request seeks irrelevant information and would be unduly annoying.
June 26, 2024
Special Discovery Master Does In Camera Review In Indemnification Case

TRENTON, N.J. — Following in camera review in New Jersey federal court in a dispute between insurers and reinsurers over indemnification for asbestos bodily injury claims, a special discovery master directed insurers to produce all or part of roughly two-thirds of the sample documents he considered.
June 24, 2024
Supreme Court Rejects Petition Over FOIA Request For JFK Assassination Records

WASHINGTON, D.C. — A nonprofit political assassination archive hit a dead end on June 24 in its quest to obtain documents about President John F. Kennedy’s assassination, which were redacted and withheld by the Central Intelligence Agency, when the U.S. Supreme Court denied without comment its petition for certiorari regarding questions of declassification and disclosure under the Freedom of Information Act (FOIA).
June 21, 2024
Asbestos Expert Warns: Employee Deposition Threatens His ‘Golden Years’

ATLANTA — A non-testifying employee of asbestos expert William Longo and his lab warned that a magistrate judge’s ruling denying a motion to quash an untimely and irrelevant subpoena would doom him to spending his “golden years” giving depositions in asbestos litigation across the country.
June 19, 2024
Microsoft Joins OpenAI’s Call For Consolidation Of Media AI Suits

NEW YORK — Microsoft Corp. joined in various OpenAI entities’ motion to consolidate a suit brought by eight news organizations challenging outputs from the ChatGPT artificial intelligence and its associated programs with a similar suit filed by The New York Times Co., saying in its joinder brief filed in a federal court in New York that doing so will combine suits that challenge similar technologies.
June 18, 2024
Stay Issued In Insurer’s Breach Of Contract Suit Against Wealth Management Firm

RALEIGH, N.C. — Finding “good cause,” a North Carolina federal judge on June 17 stayed a breach of contract suit filed by a now-insolvent insurer against a wealth management company alleged to have violated a loan agreement, staying the case until the resolution of cross-motions for summary judgment in a pending related consolidated case.