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Mealey's Discovery

June 14, 2024
J&J Can Depose Asbestos Expert Longo’s Employee, Special Master Says

TRENTON, N.J. — Johnson & Johnson entities may depose the lab employee who performed the testing on which expert William Longo relies, the special master in New Jersey involved in the federal multidistrict litigation involving asbestos-talc claims said.
June 14, 2024
Norfolk Southern: Third-Party Defendant’s Bid To Seal Is ‘Misleading On The Facts’

YOUNGSTOWN, Ohio — Norfolk Southern Railway Co. and Norfolk Southern Corp. (Norfolk Southern, collectively) filed a brief in Ohio federal court arguing that it should deny a motion to seal expert reports filed by a third-party defendant in the litigation stemming from alleged injuries from the release of toxic chemicals at the 2023 train derailment in East Palestine, Ohio, arguing that the motion to seal is “misleading on the facts.”
June 13, 2024
Third-Party Claimant Is Entitled To Depose Insurer’s Attorney In Bad Faith Suit

TAMPA, Fla. — A Florida federal magistrate judge determined that a third-party claimant who alleges that an auto insurer acted in bad faith by failing to settle a claim against its insured is entitled to depose an attorney from the firm that represents the insurer because the financial relationship between the insurer and the law firm is relevant based on the insurer’s advice-of-counsel defense.
June 12, 2024
Judge: Monsanto Must Produce Privilege Log, Materials From Other PCB Cases

BURLINGTON, Vt. — A federal judge in Vermont on June 11 partially granted a motion to compel the production of some documents in a lawsuit over polychlorinated biphenyls (PCBs) brought by a Vermont school against Monsanto Co., ruling that Monsanto’s objections were “not persuasive” and that some of the company’s arguments were not supported with citation to authority.
June 11, 2024
Colorado High Court: Privilege Between Physician And Patient ‘Survives’ Death

DENVER — A unanimous Colorado Supreme Court on June 10 discharged a rule to show cause and lifted a stay on a lower court’s in camera review of a decedent’s medical records in a dispute between siblings over the validity of their father’s most recent will, finding that though “the physician-patient privilege survives the privilege holder’s death,” disclosure of the decedent’s medical records is permitted under the testamentary exception if needed for estate administration.
June 11, 2024
Texas Court: AI Surgery Tool Maker Need Not Submit To Presuit Deposition

FORT WORTH, Texas — Even assuming counsel’s arguments during a hearing constitute evidence in a dispute involving an artificial intelligence-assisted surgery tool manufacturer, the company need not produce a corporate representative because the statements fall short of the requirements for a presuit deposition under Texas law, an appeals court in the state said, granting mandamus relief and vacating a ruling to the contrary.
June 11, 2024
Insurer Ordered To Produce Documents Related To Occupational Disease Claims

PITTSBURGH — A Pennsylvania federal judge ordered an insurer to produce claims manuals, guidelines and policies related to the insurer’s evaluation of occupational disease and employer liability claims because the documents, requested by the insured, are relevant to the insurer’s handling of the insured’s claim for coverage for an underlying asbestos bodily injury claim.
June 11, 2024
SEC Hit With FOIA Suit Over Brokers’ Off-Channel Messages Investigations

TAMPA, Fla. — A securities trade association alleges in a complaint filed in Florida federal court that the U.S. Securities and Exchange Commission violated the Freedom of Information Act (FOIA) by withholding all responsive documents related to its investigations of broker-dealers that used unauthorized personal devices to communicate with clients during the COVID pandemic, arguing that the commission improperly invoked an FOIA exemption without explanation.
June 11, 2024
X Takes Nondisclosure Order 1st Amendment Fight Over Trump Warrant To High Court

WASHINGTON, D.C. — Citing constitutional issues that it calls “critically important and recurring,” X Corp. (formerly Twitter Inc.) filed a petition for certiorari in which it asks the U.S. Supreme Court to offer guidance on when a nondisclosure order (NDO) served on an electronic communications service provider along with a warrant seeking private communications violates the First Amendment to the U.S. Constitution.
June 07, 2024
Panel: North Carolina State University Must Allow Testing Of Building With PCBs

RALEIGH, N.C. — A divided appeals panel in North Carolina has ruled that North Carolina State University (NCSU) must produce documents and must permit inspection and testing of an academic building that contains polychlorinated biphenyls (PCBs), the exposure to which a former student claims caused him to develop cancer.
June 07, 2024
Magistrate Orders Privilege Log Update In FCA Suit Over Medicare Advantage Fraud

TAMPA, Fla. — A Florida federal judge granted in part Medicare Advantage (MA) insurers’ motion to compel discovery in a relator’s qui tam suit alleging that medical providers and the insurers violated the False Claims Act (FCA) by conspiring together to increase risk adjustment scores of MA patients to obtain more federal funding than was owed, finding that the relator must update her privilege log but denying the insurers’ request for production regarding specified nonprivileged documents.
June 05, 2024
CIA Waives Certiorari Petition Response In JFK Assassination FOIA Request Suit

WASHINGTON, D.C. — The U.S. Supreme Court on June 4 set a conference date of June 20, on which it will consider a petition for certiorari in which a historical archive seeks to convince the high court to compel the Central Intelligence Agency to release certain records related to John F. Kennedy’s assassination, which the petitioner contends should no longer be classified due to their age and to their importance to a historical event that is of great public interest.
June 04, 2024
Judge: Fracking Injury Case Valid; Plaintiff May Be Able To Establish Jurisdiction

HARRISBURG, Pa. — A federal judge in Pennsylvania on June 3 denied a motion to dismiss a wrongful death lawsuit filed by a widow whose husband died while working on a hydraulic fracturing rig, ruling that there is “more than a possibility that plaintiff can establish the requisite contacts” between the drilling company he worked for and the state of Pennsylvania to establish jurisdiction.
May 15, 2024
COMMENTARY: Use Of Artificial Intelligence In E-Discovery

By Phil Beckett
June 03, 2024
New York Times, OpenAI Dispute Scope Of Discovery In AI Training Fight

NEW YORK — The New York Times Co. (NYT) told a federal judge in New York that it investigated whether ChatGPT would output protected material from the newspaper only because OpenAI Inc. and related entities are so secretive about what was used to train the artificial intelligence and that given the defendants’ admission that it tracks users, it doesn’t need any additional discovery.
June 03, 2024
Relator In FCA Suit Alleging Medicare Advantage Fraud Seeks To Compel Discovery

TAMPA, Fla. — Medicare Advantage (MA) insurers and a relator in a qui tam suit brought on behalf of the federal government filed separate motions to compel discovery in a Florida federal court in a relator’s suit alleging that medical providers and the insurers violated the federal False Claims Act (FCA) by conspiring together to increase risk adjustment scores of MA patients to obtain more federal funding than was owed.
June 03, 2024
Asbestos Law Firms Seek Discovery In Subchapter V Bankruptcy Of Cosmetics Company

LOS ANGELES — Five asbestos personal injury law firms and their clients want representatives for new Chapter 11 debtor Ben Nye Co. Inc. and the company’s financial advisers to submit to an examination under oath and present documents about the debtor’s financial affairs, the use of talc in its products and other topics, according to a motion the firms filed in California federal bankruptcy court.
May 23, 2024
COMMENTARY: Reinsurance Contract Access To Records And Cooperation Clauses And Privilege

By Robert M. Hall
May 31, 2024
North Dakota Legislators Oppose Certiorari In Tribes’ Discovery Privilege Dispute

WASHINGTON, D.C. — The North Dakota Legislative Assembly and a group of lawmakers, who were granted relief by the Eighth Circuit U.S. Court of Appeals from discovery subpoenas served by Native American tribes opposing voter redistricting, ask the U.S. Supreme Court to reject the tribes’ petition for a writ of certiorari on whether the legislative privilege is qualified, rather than absolute.
May 30, 2024
Magistrate Extends Discovery Deadline In State Farm’s No-Fault Fraud Suit

BROOKLYN, N.Y. — A New York federal magistrate judge on May 29 issued a docket-only order granting a motion filed by certain medical provider defendants to extend the discovery deadline in State Farm’s suit alleging that the medical providers submitted for reimbursement to State Farm fraudulent bills for ineligible or medically unnecessary services provided to auto accident victims eligible for State Farm no-fault benefits.
May 30, 2024
Defendants Seek Full Genetic Testing In Louisiana Asbestos Lung Cancer Suit

NEW ORLEANS — Companies embroiled in a Louisiana take-home asbestos lung cancer suit moved to compel production of a blood sample for whole genome sequencing, pointing out that limited testing on a sample of the plaintiff’s tumor and her family history all suggest she suffers from a germline mutation that the requested testing could confirm.
May 30, 2024
Defendants Are Granted Taxable Costs In ERISA Record-Keeping Fees Row

DES MOINES, Iowa — Following summary judgment in their favor in an Employee Retirement Income Security Act class action over 401(k) record-keeping fees in Iowa federal court, grocery chain Hy-Vee Inc. and related defendants were granted taxable costs totaling $53,319.87, including $40,232.83 for discovery of electronically stored information (ESI), on May 29.
May 28, 2024
ISP Tells 4th Circuit Labels’ Misconduct Merits Relief, Discovery In Copyright Row

RICHMOND, Va. — An internet service provider (ISP), which was found liable for its subscribers’ infringing behavior in downloading copyrighted songs, entreaties the Fourth Circuit U.S. Court of Appeals to find that it was wrongly deprived of the opportunity to conduct additional discovery and seek relief from the infringement judgment after it was discovered that the plaintiff record labels engaged in discovery misconduct by withholding and misrepresenting evidence from their investigation firm that was used against the ISP at trial.
May 24, 2024
Magistrate Judge Denies J&J’s Effort At Expedited Response To Subpoena To Law Firm

TRENTON, N.J. — In a docket text order, a federal magistrate judge in New Jersey denied a request by Johnson & Johnson and its bankrupt affiliate to expedite a response to a subpoena they issued to the Beasley Allen Law Firm in the asbestos talc multidistrict litigation seeking evidence of “egregious behavior” suggesting that the firm no longer advocates in the best interests of asbestos plaintiffs.
May 24, 2024
Magistrate Will Not Reconsider Redacted Document Ruling, Says Privilege Inapplicable

ANN ARBOR, Mich. — A federal magistrate judge on May 23 refused to reconsider a ruling in which she determined that an engineering firm that is a defendant in litigation stemming from the lead-contaminated water crisis in Flint, Mich., must provide 40 documents in response to a motion to compel compliance with a discovery order, saying that the firm did not show that the documents were protected by the attorney-client privilege.