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Mealey's Discovery

May 26, 2023
Lawyer: ‘Creative Solutions’ Warrant Sealing Accidently Revealed Asbestos Info

LOS ANGELES — Parties to litigation are freely able to discuss facts outside of court and make the judge aware only after it becomes relevant, and courts are empowered to rely on creative solutions such as sealing evidence where necessary, an asbestos attorney tells a California appeals court in arguing that there was no need for him to make public accidently disclosed evidence in a now-settled employment lawsuit.
May 26, 2023
Magistrate: AI Concerns Among Reasons To Preclude Evidence Release In ERISA Case

SALT LAKE CITY — Citing in part potential concerns that competitors could use artificial intelligence and machine learning to create derivative products if a vendor’s health care guidance information were publicly released, a federal magistrate judge in Utah granted a motion for a protective order and rejected the argument that the Employee Retirement Income Security Act mandated release of the evidence.
May 25, 2023
Delaware Discovery Ruling Addresses Reserve Info, Reinsurance Communications

NEW CASTLE, Del. — A motion to compel insurers to produce documents relating to reinsurance communications and internal loss reserve information was granted in a Delaware court in a suit over more than $434 million in claimed losses after a landslide and explosion in September 2018 closed a natural gas pipeline for more than two years.
May 25, 2023
Parties In Meta Pixel Privacy Suit Told To Confer, Agree On ESI Preservation

SAN FRANCISCO — In a March 10 motion, Meta Platforms Inc. asks a California federal court to relate an 11th case with 10 already related cases in which patients of various hospitals and medical facilities have brought suit against the Facebook operator for purportedly installing its Pixel tool on the health care facilities’ respective online patient portals, thereby allowing it to surreptitiously collect patients’ protected health information (PHI).
May 24, 2023
Magistrate Judge Imposes $1M Sanction For Asbestos Fee Case Conduct

BALTIMORE — Defendants’ knowing failure to produce evidence and comply with court orders and a “lame attempt” to have a state court enjoin a federal court, all of which extended litigation over asbestos referral fees and wasted the court’s time, warrants more than $1 million as a sanction, a federal magistrate judge in Maryland said.
May 24, 2023
More Discovery Time Granted In Suit Over Canceled Lease Between Tribe, Campground

GREAT FALLS, Mont. — Noting that courts have broad discretion over discovery matters, a Montana federal judge granted a motion for additional time to complete supplemental discovery filed by a company that leased land from the Blackfeet Indian Nation for a campground on its reservation and was sued by the tribe when the lease was canceled by the Bureau of Indian Affairs (BIA).
May 23, 2023
Roofing Contractor Deficiently Responded To Interrogatories, Magistrate Judge Finds

FORT MYERS, Fla. — A roofing contractor inadequately responded to interrogatories by filing objections and substantive answers to questions from a manufacturer of roofing products, a Florida federal magistrate judge found in granting the manufacturer’s motion to compel and ordering the contractor to file new responses to the interrogatories and a new computation of the alleged damages it incurred from the manufacturer’s sprayable roofing projects.
May 22, 2023
Magistrate Judge Terminates Subpoena-Related Asbestos Expert, Employer Motions

NEW YORK — A federal magistrate judge in New York on May 19 granted a motion to modify subpoenas to an asbestos expert’s hospital employer and denied a motion seeking to compel subpoena responses, noting that production of the evidence to which the hospital doesn’t object has already occurred.
May 22, 2023
Plaintiff: Talc Expert Discovery Efforts Based On False Pretense, Fraud

NEW YORK — A defendant’s own expert undercuts its case for discovery into Jacqueline Moline’s study on talc-only exposures, and its shifting position in light of the withdrawal of the study exposes that the narrative it relied on was always a “charade” it always knew to be false, a man tells a federal judge in New York in seeking sanctions, while saying “this is fraud.”
May 22, 2023
Connecticut Judge Orders Production Of Discrete Class Of Undisclosed Communications

HARTFORD, Conn. — After conducting an in camera review of disclosed documents, a Connecticut judge concluded that directors and officers insureds waived their attorney-client privilege and ordered production of a discrete class of undisclosed communications that are covered by the waiver.
May 19, 2023
Briefly: Panel Says Expert Reports Not Privileged In Pipeline Explosion Case

HARRISBURG, Pa. — A Pennsylvania appellate court panel ruled that a hydraulic fracturing pipeline company’s expert reports are not privileged and therefore are discoverable in litigation brought by a midstream services company that is suing the pipeline company for breach of contract in relation to an explosion that damaged the pipeline and other property.
May 18, 2023
Magistrate Refuses To Compel Discovery In Roundup Case About Reneged Settlement Offer

ABINGDON, Va. — A federal magistrate judge in Virginia denied a motion to compel discovery sought by a cancer victim who is a non-citizen farm worker who contends that Monsanto and her former lawyers deprived her of her rights when they reneged on a settlement offer for injuries related to exposure to the herbicide Roundup. In the one-paragraph order, the magistrate judge did not elaborate on the reasoning for her decision.
May 18, 2023
Panel Denies Musk’s Claim That SEC Acted In Bad Faith, Nixes Bid To Quash Subpoena

NEW YORK — A panel of the Second Circuit U.S. Court of Appeals has affirmed a lower court ruling and held that there is no evidence to support Elon Musk’s contention that the U.S. Securities and Exchange Commission used a consent decree “to conduct bad-faith, harassing investigations of his protected speech,” with regard to something he tweeted about possibly taking his company Tesla private. As a result, the panel denied Musk’s bid to quash a subpoena and terminate a consent order that had been instituted in response to his tweeting behavior.
May 12, 2023
Woman Says Prevailing Party Costs Aren’t Subject To Offset After Asbestos Verdict

GREENSBORO, N.C. — Federal rules permit prevailing parties’ recovery of certain litigation expenses that are not subject to offsets, a woman awarded $275,000 by a jury for her relative’s death from mesothelioma told a federal judge in North Carolina in response to Ford Motor Co.’s post-trial motion to amend the verdict.
May 12, 2023
Disability Claimant Is Not Entitled To Information Related To Claims Evaluations

NASHVILLE, Tenn. — A disability claimant is not entitled to information related to long-term disability (LTD) claims evaluated by the same reviewers who evaluated her claim because producing the information would be burdensome to the disability insurer, a Tennessee federal magistrate judge said.
May 11, 2023
Insurer Granted Summary Judgment In Autism Evidence-Based Insurance Coverage Case

MADISON, Wis. — A couple has not shown that an insurer’s decision not to cover certain autism spectrum disorder (ASD) treatments deviated from a plan’s evidence-based approach, that its standards were outdated or that it treated mental health treatments differently from similar medical or surgical treatments, a federal judge in Wisconsin said in granting summary judgment to the insurer.
May 11, 2023
Parties Outline Discovery Dispute In Suit Against Reinsurer Over Settlement

WHITE PLAINS, N.Y. — Parties in a breach suit involving an environmental losses settlement have outlined a discovery dispute for a New York federal magistrate judge, with insurers filing a May 10 letter responding to arguments a reinsurer made regarding allocation modeling documents and records of its key case committee.
May 11, 2023
Judge Denies Attempt To Quash U.S. Agency Subpoenas In Asbestos Case

MISSOULA, Mont. — Two government agencies must produce witnesses for trial testimony after a federal judge overseeing a false claims act case alleging submission of fraudulent asbestos claims under a special Patient Protection and Affordable Care Act (ACA) Medicare pilot program denied motions to quash subpoenas.
May 09, 2023
Breach Of Contract Plaintiff May Not Claw Back Email With Waived Privilege

COLUMBUS, Ohio — An Ohio federal magistrate judge denied a plaintiff’s motion to strike an inadvertently submitted document because it failed to timely assert privilege in the document pursuant to a clawback agreement and federal law, thus resulting in waiver of any attorney-client privilege in the document.
May 09, 2023
Federal Magistrate Signs Protective Order In Bobcat Wildfire Coverage Dispute

LOS ANGELES — A federal magistrate judge in California signed a stipulated protective order in a coverage dispute over underlying lawsuits arising from the Bobcat Wildfire after the parties announced that they did not resolve their dispute following court-ordered mediation.
May 08, 2023
Talc Plaintiff Says Withdrawal Of Study Moots Discovery Attempts

NEW YORK — In a series of post-hearing letters, parties to an asbestos-talc case debated the importance and impact of the voluntary withdrawal of a study from the case and whether it mooted ongoing efforts at discovering the study participants’ identities.
May 08, 2023
Magistrate Judge Compels Discovery From Israeli Investor In $2.3M Award Row

NEW YORK — A New York federal magistrate judge on May 5 granted the Republic of Guatemala’s motion to compel discovery from an Israel energy investor against which default judgment was previously entered confirming a Permanent Court of Arbitration (PCA) award for arbitration costs and attorney fees now worth more than $2.3 million, writing that sanctions could be issued if it fails to comply.
May 05, 2023
Company Tells 2nd Circuit Judge Erred By Quashing Discovery For ICSID Tribunal

NEW YORK — An Italian company in an appellant brief tells the Second Circuit U.S. Court of Appeals that a judge misapplied recent U.S. Supreme Court precedent in quashing its subpoena seeking discovery for use before an International Centre for Settlement of Investment Disputes (ICSID) tribunal, arguing that ICSID tribunals are “imbued” with “governmental authority.”
May 04, 2023
Discovery On Fee Request In Dispute Over Copyrighted Beetles Art Partly Stayed

CHICAGO — Discovery in a copyright infringement dispute over two-dimensional nail polish artwork depicting The Beetles was stayed in part by a federal magistrate judge in Illinois on May 3.
May 03, 2023
Magistrate Deems Interviews Privileged In FCA Suit Over 9-Year Medicare Fraud

WHITE PLAINS, N.Y. — A New York federal magistrate judge on May 2 denied skilled nursing facilities’ request for summaries of interviews in the government’s suit against the facilities and related parties for alleged violations of the federal False Claims Act (FCA) in submitting false claims to Medicare “for excessive rehabilitation services,” finding that though the work-product privilege does not prevent “limited disclosure” of the interviewees’ names, the interview summaries are protected by the privilege, to which no exception applies.