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Mealey's Discovery

September 25, 2024
Musk, SEC Debate Sanctions, Other Fallout From Missed Deposition

SAN FRANCISCO — In a joint statement in the wake of Elon Musk’s failure to appear for investigative testimony the Securities and Exchange Commission asked for court intervention that would ensure “gamesmanship and delay tactics” would end and said it intends to ask for sanctions for missing the deposition. But Musk said that the order requiring him to appear specifically envisioned rescheduling the event and that the limited window available for the launch of a SpaceX shuttle required his presence.
September 24, 2024
Discovery Ruling Issued In Asbestos Coverage Row Involving Insolvent Insurer

OMAHA, Neb. — A Nebraska federal magistrate judge granted in part National Indemnity Co. (NICO)’s motion to compel discovery of an insurer in its suit seeking to enforce obligations by multiple insurers, one of whom is now insolvent, for the liability NICO incurred related to claims for asbestos exposure, finding that the attorneys’ eyes only designation (AEO) must be removed from discovery material due, in part, to the insurer’s failure to “articulate why an AEO designation is the right tool to prevent this harm.”
September 24, 2024
California Judge Signs Genetic Testing Order Ensuring Protections

OAKLAND, Calif. — An asbestos plaintiffs will sit for saliva or blood testing with appropriate protections in place to prevent testing that goes beyond the germline BAP1 mutation testing required in the case, a California judge said in signing a joint protective order.
September 20, 2024
Florida Panel Quashes Protective Order, Says Company Attorney Must Give Deposition

MIAMI — Concluding that the petition of a personal injury plaintiff whose postjudgment discovery inquiries into the status of a cab company that failed to pay a judgment against it were thwarted presents “one of the exceptional circumstances in which certiorari lies to review an order denying discovery,” a Florida appellate panel reversed a trial court’s order quashing a subpoena the man issued to the company’s attorney, seeking to depose him.
September 18, 2024
Judge Approves Protocol For Electronic Information In PCB Case Against Monsanto

BURLINGTON, Vt. — In a text-only order entered as a note on the docket, a Vermont federal judge on Sept. 18 granted Monsanto Co.’s motion for a protocol governing electronically stored information (ESI), but denied the company’s requests for a protective order and nixed Monsanto’s bid for an agreement that would have established a procedure for logging protected information produced inadvertently during the litigation brought by 95 school districts against Monsanto Co. related to contamination from polychlorinated biphenyls (PCBs).
September 18, 2024
Hair Relaxer Plaintiffs: L’Oréal ‘Conflates’ Issues Related To Document Discovery

CHICAGO — The plaintiffs suing L’Oreal USA Inc. and its affiliates in Illinois federal court over injuries allegedly cause by toxic chemicals in hair relaxer products filed a reply brief in support of their motion to enforce discovery orders arguing that documents held by its parent company, L’Oréal SA, are within the control of L’Oréal USA for discovery purposes and that L’Oréal USA’s opposition to the motion “conflates” the unrelated issues of how discovery searches will be conducted versus what evidence is generally relevant and discoverable.
September 18, 2024
AII Calls Dismissal Motion A ‘Bad Faith’ Effort To Avoid Talc Discovery

NEW YORK — An asbestos plaintiff’s motion to dismiss his case is not an attempt to avoid the rigors of litigation but is a “bad faith” effort at avoiding discovery into expert studies behind talc litigation, American International Industries (AII) argues in urging a federal judge in New York to deny his motion and permit limited discovery into the experts that would otherwise be unavailable.
September 18, 2024
Magistrate Partly Grants Motion To Quash Discovery On Reinsurance, Reserves

LAKE CHARLES, La. — Partly granting an insurer’s motion to quash in a breach of contract and bad faith suit over home damage purportedly caused by hurricanes, a Louisiana federal magistrate judge cited two other decisions in ruling that that certain reinsurance and reserve information and the requested prior deposition testimony are within the scope of permissible discovery.
September 17, 2024
Talc Defendant Claims ‘Egregious Misconduct’ In New Jersey Asbestos Case

LOS ANGELES — Asbestos firm Simmons Hanley Conroy committed “egregious misconduct” by communicating with and obtaining a statement from a corporate representative without the knowledge of the defendant or counsel, talc defendant American International Industries (AII) alleges in asking a California judge for a protective order and to quash the New Jersey state court deposition.
September 17, 2024
SEC Files Rule Compliance Notice In Fraud Suit Against Owner Of Defunct Insurers

WINSTON-SALEM, N.C. — The U.S. Securities and Exchange Commission on Sept. 16 filed a notice of compliance with local rules in a North Carolina federal court regarding its brief responding to a motion to compel discovery filed by insurance magnate Greg Lindberg, a former owner of insurers now in receivership, in a suit alleging that he, his advisory services company and its former executive defrauded clients of more than $75 million.
September 17, 2024
Magistrate Rules On Discovery In Suit Alleging Surety Breached Performance Bond

FORT LAUDERDALE, Fla. — A federal magistrate judge in Florida granted in part and denied in part a plaintiff’s motions to compel discovery in its lawsuit alleging that a surety breached a performance bond by denying liability for damage to its construction project allegedly caused by a subcontractor’s “defective and deficient work.”
September 17, 2024
Roofing Defendant Can’t Depose Plaintiff’s General Counsel, Federal Magistrate Rules

SPRINGFIELD, Mass. — A Massachusetts federal magistrate judge granted a protective order blocking a defendant in a defective roofing case from deposing a defendant’s general counsel, finding that he is covered by attorney-client privilege and the attorney work product doctrine and that the defendants have other means to get information about a defendant’s possible sale.
September 16, 2024
Panel Majority Reverses Ruling On Vexatious Litigation Claims Against Auto Insurer

HARTFORD, Conn. — The majority of the Connecticut Appellate Court partially reversed a trial court’s ruling in favor of an auto insurer after determining that the insured properly asserted claims for common-law and statutory vexatious litigation against the insurer based on the insured’s allegations that the insurer allegedly provided false answers to the insured’s complaint in a prior action.
September 13, 2024
Avondale Ordered To Produce Family Employment Records, Opposes Expedited Trial

NEW ORLEANS — Days after a judge ordered a shipyard to produce employment records of the cousins of a woman allegedly exposed to asbestos on their work clothing, the shipyard opposed expedited trial, noting that the exposed individual is dead and that the case was still in its infancy.
September 13, 2024
Magistrate Denies Camp Lejeune Plaintiffs’ Discovery Request As ‘Overbroad’

RALEIGH, N.C. — A federal magistrate judge in North Carolina denied a motion to compel production of documents sought by the Plaintiffs’ Leadership Group (PLG) in the litigation over water contamination at Marine Corps Base Camp Lejeune, ruling that the request for production was “overbroad and otherwise outside the scope” of Federal Rule of Civil Procedure 26(b)(l).
September 12, 2024
Magistrate Addresses Row Over Documents DOL Gave Plaintiffs Challenging ESOP Deal

DENVER — Ruling that a common interest agreement (CIA) does not protect the U.S. Department of Labor (DOL) from waiving its privileges and protections by sharing investigative materials with plaintiffs challenging an employee stock ownership plan (ESOP) deal, a Colorado federal magistrate judge on Sept. 11 said the plaintiffs gained “access to information they can leverage, use to take shortcuts, and rely upon to circumvent ordinary discovery protocols.”
September 12, 2024
Auto Insurer Must Produce Documents Created Prior To Counteroffer, Judge Says

BURLINGTON, Vt. — An auto insurer is required to produce documents that were requested by insureds in a breach of contract and bad faith suit because the documents were produced prior to the date on which the insurer believed litigation was likely, a Vermont federal judge said in partly granting and partly denying a motion to compel, noting that the insurer may have believed that litigation was likely when it made a counteroffer to the insureds on their claim for underinsured motorist benefits.
September 11, 2024
Manufacturer Of Embryo Culture Media Wins Dismissal In Suit Over Loss Of Embryos

OAKLAND, Calif. — A California federal judge granted motions to dismiss filed by the manufacturer of embryo culture media and its subsidiary in a case in which a couple alleges that a defective solution that was used in the fertility procedure caused none of their fertilized eggs to survive to the blastocyst stage.
September 11, 2024
Magistrate Partially Grants Insured’s Motion To Compel Discovery In Yacht Damage Row

KANSAS CITY, Kan. — A Kansas federal magistrate judge on Sept. 10 granted, in part, a motion to compel discovery filed by an insured in a coverage dispute in which an insurer seeks a determination that a yacht that was damaged is excluded from coverage, finding in part, that because some of the discovery requests are overbroad, the court must limit them.
September 11, 2024
Massachusetts High Court Affirms Snapchat Surveillance Case Dismissal

BOSTON — The Massachusetts Supreme Judicial Court affirmed dismissal of a case that the commonwealth brought against a man accused of unlawful firearm possession and related crimes after the man tried for three years to get the commonwealth to produce discovery related to the Boston Police Department’s undercover monitoring of Snapchat social media accounts, finding that “discovery was relevant and material” and that the judge’s dismissal was not an abuse of discretion because the department and commonwealth did not “make any attempt to comply” with the judge’s discovery order.
September 10, 2024
Judge Says DuPont Must Produce Material Held In 36 Boxes Related To PFAS Case

FAYETTEVILLE, N.C. — A discovery referee in North Carolina has ruled that affiliates of E.I. du Pont de Nemours & Co. (referred to as Old DuPont) must provide the state of North Carolina with discoverable information contained in 36 boxes in Old DuPont’s possession, and he ruled that Old DuPont must provide the state with copies of its document retention policies that apply to materials stored at a facility called Iron Mountain.
September 10, 2024
Petition On Third-Party Subpoena Prehearing Issue Is Voluntarily Dismissed

DETROIT — Two weeks after filing a petition to compel compliance with third-party subpoenas for prehearing discovery depositions, an insurer filed a notice of voluntary dismissal without prejudice and a Michigan federal court accordingly dismissed the suit that concerned a $950,742.64 dispute over a medical excess reinsurance agreement that has gone to arbitration.
September 09, 2024
New York Court Consolidates Moline, Northwell Asbestos Studies Appeals

NEW YORK — A New York appellate court consolidated two appeals involving a ruling quashing subpoenas to asbestos expert Jacqueline Moline and Northwell Health Inc. and said the cases will be heard in the September term as requested.
September 06, 2024
Judge ‘Cautions’ WhatsApp, Denies Reconsideration To Spyware Firm In Fraud Dispute

OAKLAND, Calif. — A California federal judge on Sept. 5 denied a spyware firm’s motion for reconsideration of the judge’s order denying as moot the firm’s request to compel WhatsApp Inc.’s production of a privilege log in WhatsApp’s suit against the firm related to its alleged computer fraud because WhatsApp has now produced the log but “caution[ed]” WhatsApp that what it calls ‘“oversights’ may be grounds for a different type of sanction.”
September 06, 2024
California Judge Will Grant Genetic Testing Motion But Wants Protocols In Place

OAKLAND, Calif. — A California judge said he remained inclined to grant a motion for genetic testing seeking to determine whether a man suffers from a germline mutation that might explain his mesothelioma, but stayed the ruling and said the parties should meet and confer to ensure a protocol exists to protect the genetic information and ensure destruction of any results that exceed the court’s order.