- Volume 15, Issue #9
- California High Court: Public Social Media Posts Discoverable Under SCA
SAN FRANCISCO - The Stored Communications Act (SCA) prohibits a service provider from disclosing only communications that are private or for restricted audiences, the California Supreme Court held May 24, affirming in part an appeals court's reversal of an order requiring three social media provider to submit users' posts sought by two murder suspects, but remanding for a trial court to make additional findings and complete the record (Facebook Inc., et al. v. The Superior Court of San Francisco City and County, et al., No. S230051, Calif. Sup., 2018 Cal. LEXIS 3635).
- Health Insurer, Pharmacy Benefit Manager Must Comply With EpiPen MDL Subpoenas
KANSAS CITY, Kan. - A Kansas magistrate judge overseeing the EpiPen multidistrict litigation on May 31 ordered nonparty United Healthcare Services Inc. and its pharmacy benefit manager Optum Rx. Inc. to produce rebate and incentive information that plaintiffs say may show anti-competitive practices with EpiPen manufacturer Mylan N.V. (In Re: EpiPen [Epinephrine Injection, USP] Sales Practices and Antitrust Litigation, MDL Docket No. 2785, No. 17-md-2785, United Healthcare Services, Inc. v. Consumer Class Plaintiffs, No. 18-md-205, D. Kan.).
- Judge Quashes Subpoenas Seeking Records Of All Of Doctor's Toenail Avulsions
NASHVILLE, Tenn. - A federal judge in Tennessee on May 18 quashed two subpoenas served on rehabilitation centers where a doctor who was found guilty of four counts of health care fraud preformed toenail avulsions, finding that the requests were unduly burdensome and that they were not necessarily relevant for the calculation of the amount of loss incurred by Medicare and other insurers (United States v. John J. Cauthon, No. 15-cr-00172, M.D. Tenn., 2018 U.S. Dist. LEXIS 84104).
- 6th Circuit Upholds Dismissal Of HVAC Trade Secrets Suit As Discovery Sanction
CINCINNATI - Finding that a trade secrets plaintiff repeatedly failed to "play by the rules" of discovery, despite multiple judicial orders and warnings, a Sixth Circuit U.S. Court of Appeals panel on June 1 affirmed a trial court's discovery sanctions in the form of attorney fees awards and dismissal of the lawsuit (ECIMOS LLC, et al. v. Nortek Global HVAC LLC, et al., No. 17-6067, 17-6123, 17-6124 and 17-6125, 6th Cir., 2018 U.S. App. LEXIS 14940).
- Washington High Court Majority Finds Emails Between County, Department Privileged
OLYMPIA, Wash. - A 7-2 Washington Supreme Court on May 17 found that emails between a county and the Washington Department of Ecology were protected from disclosure under the Public Records Act (PRA) because they were work product and because the sharing of the information between the parties did not constitute a waiver of that privilege (Kittitas County v. Sky Allphin, et al., No. 93562-9, Wash. Sup., 2018 Wash. Sup., 2018 Wash. LEXIS 336).
- Magistrate Orders Telecom To Supplement Discovery In Contract Dispute
ORLANDO, Fla. - A telecommunications firm failed to establish its assertions of attorney-client and work product privilege in certain documents sought via discovery in a breach of contract suit brought by a former client, a Florida federal magistrate judge ruled June 12, mostly granting the plaintiff's motion to compel production of documents related to the telecom's defenses and counterclaims (Local Access LLC v. Peerless Network Inc., No. 6:17-cv-00236, M.D. Fla., 2018 U.S. Dist. LEXIS 97955).
- Trump Campaign: Discovery Sought In DNC Hack Suit Is Groundless, Overbroad
WASHINGTON, D.C. - Donald Trump's presidential campaign and Republican strategist Roger Stone each filed briefs May 31, opposing a jurisdictional discovery request in a lawsuit over the 2016 hack of the Democratic National Committee's (DNC's) database, asserting that the discovery sought by the plaintiffs, whose personally identifiable information (PII) was stolen and posted online, is overbroad and untimely (Roy Cockrum, et al. v. Donald J. Trump For President Inc., et al., No. 1:17-cv-01370, D. D.C.).
- Justice: Auto Makers Must Answer Asbestos Plaintiff's Jurisdictional Discovery
NEW YORK - Two automakers did not file timely objections to an order requiring them to respond to jurisdictional discovery requests, but regardless, the motions are at least likely to produce admissible evidence, a New York justice held in an opinion posted June 12 and affirming a special master's ruling (In re: NYCAL, Yang-Ning Pi Chen, et al. v. Aerco International Inc., et al., No. 190133/2017, N.Y. Sup., New York Co., 2018 N.Y. Misc. LEXIS 2200).
- Motorola Denied Access To Rival's Computers In 2-Way Radio Trade Secret Suit
CHICAGO - Chiding both parties in a trade secret misappropriation suit for "a long, drawn out, pitched battle" over discovery, an Illinois federal magistrate judge on May 17 denied Motorola Solutions Inc.'s motion to compel forensic examination of the defendants' computers, finding no evidence that such an examination would be relevant to the limited statute of limitations issue presently before the court (Motorola Solutions Inc. v. Hytera Communications Corp., et al., No. 1:17-cv-01973, N.D. Ill., 2018 U.S. Dist. LEXIS 83136).
- Attorney's Deposition Partly Compelled In Suit Over Water Ride Patent
SAN DIEGO - A California federal magistrate judge on June 8 found that a patent owner's counsel did not waive attorney-client privilege regarding certain proceedings before the U.S. Patent and Trademark Office (PTO) over a water park ride patent, partly denying a motion to compel his deposition but granting the defendant's motion related to nonprivileged communications and requests for production (RFPs) (Whitewater West Industries Ltd. v. Pacific Surf Designs Inc., et al., No. 3:17-cv-01118, S.D. Calif., 2018 U.S. Dist. LEXIS 96970).
- Majority Remands For In Camera Review Of Documents In Suit Against Nursing Home
CLEVELAND - A Ohio appellate court majority on May 24 reversed a lower court's ruling that denied a nursing home's motion for a protective order and compelled it to provide discovery of records pertaining to a nonparty nursing home resident who allegedly fatally assaulted another resident, remanding for an in camera review of the documents to determine whether they are undiscoverable (David Howell, Jr. v. Park East Care & Rehabilitation, et al., No. 106041, Ohio App., 8th Dist., 2018 Ohio App. LEXIS 2225).
- Wikimedia Says In Camera Review Can Resolve Standing In Upstream Surveillance Suit
BALTIMORE - In a May 18 reply brief in Maryland federal court, Wikimedia Foundation defends its motion to compel documents to establish that its communications were intercepted by the National Security Agency's (NSA) upstream surveillance program, arguing that a statutory in camera review procedure defeats the government's assertion of the state secrets privilege (Wikimedia Foundation v. National Security Agency, et al., No. 1:15-cv-00662, D. Md.).
- Discovery Sought By Note Holder From Reinsurer, Insurance Broker
LINCOLN, Neb. - A promissory note holder asks a Nebraska federal court on May 21 to compel discovery by a reinsurer and its insurance broker on their experience with workers' compensation insurance in a dispute over the breach of the promissory note executed pursuant to a reinsurance participation agreement (RPA) (Applied Underwriters Inc. v. Top's Personnel Inc., No. 15-90, D. Neb.).
- Reinsurer Seeks To Compel Production Of Documents Against Insurance Agency
SACRAMENTO, Calif. - In two putative class actions filed in a California federal court over a reinsurance participation agreement (RPA), a reinsurer and its affiliates on May 9 moved to compel production of documents in response to subpoenas served on an insurance agency (Shasta Linen Supply Inc. v. Applied Underwriters Inc., et al., Nos. 16-00158 & 16-01211, E.D. Calif.).
- Insurer Opposes Bank's Motion To Compel Documents In Reinsurance Handling Suit
COLUMBIA, S.C. - In a South Carolina federal court dispute involving a bank sued for its role as trustee of a reinsurance trust for an insolvent insurer, an insurer in a June 7 filing opposes the bank's motion to compel the identity and production of documents related to damages (Accident Insurance Company Inc. v. U.S. Bank National Association, et al., No. 16-2621, D. S.C.).
- State High Court: Records With Trade Secrets Not Excluded From Disclosure
OLYMPIA, Wash. - Records containing trade secrets are not categorically excluded from public disclosure under Washington's Public Records Act (PRA), and a state superior court erred in applying the state's general injunction standard and not the PRA's "more stringent standard," a divided Washington Supreme Court ruled May 31 in reversing and remanding (Lyft Inc. et al. v. Seattle, et al., No. 94026-6, Wash. Sup., 2018 Wash. LEXIS 350).
- Judge Orders EPA To Produce Records About Climate Change
WASHINGTON, D.C. - A federal judge in the District of Columbia on June 1 ordered the U.S. Environmental Protection Agency to respond to a Freedom of Information Act (FOIA) request from a group seeking records that administrator Scott Pruitt relied upon when publicly stating that human activity was not the largest factor driving climate change, holding that the request was unduly burdensome (Public Employees for Environmental Responsibility v. U.S. Environmental Protection Agency, No 17-652, D. D.C., 2018 U.S. Dist. LEXIS 91367).
- Disability Claimant Permitted To Conduct Limited Discovery, Federal Judge Says
DETROIT - A Michigan federal judge on June 1 upheld a magistrate judge's order permitting a disability claimant to conduct limited discovery on the number of times a disability insurer employed a specific doctor to complete medical reviews of long-term disability claims because the claimant made "a sufficient predicate showing" to warrant the limited discovery (Precious Robert Johnson v. Harleysville Life Insurance Co., No. 17-10321, E.D. Mich., 2018 U.S. Dist. LEXIS 92833).
- Ford, Honeywell Appeal, Seeking Unlimited Access To Asbestos Trusts' Claim Data
PHILADELPHIA - Ford Motor Co. and Honeywell International Inc. continued their fight to have unfettered access to asbestos claimants' data from nine asbestos trusts, saying in a May 11 case summary in the Third Circuit U.S. Court of Appeals that lower courts violated their rights by limiting their access to the information (In re: AC&S, Inc., et al., No. 18-1951, 3rd Cir.).
- Judge Denies Protective Order On Reinsurance Info In Insurance Insolvency Case
ST. LOUIS - In a dispute over the mishandling of funds belonging to insolvent funeral insurers, a Missouri federal judge on June 8 denied a special deputy receiver's motion for protective order as to documents and communications relating to any assumption reinsurance agreements (Jo Ann Howard & Associates P.C., et al. v. J. Douglas Cassity, et al., No. 09-01252, E.D. Mo., 2018 U.S. Dist. LEXIS 96627).
- Judge Allows Discovery At DuPont Chemical Plant In Tainted Groundwater Case
WILMINGTON, N.C. - A federal judge in North Carolina on May 25 granted a motion by a group of plaintiffs seeking to conduct discovery on a premises of a chemical plant operated by a subsidiary of E.I. DuPont de Nemours & Co. as part of a lawsuit against the company and is affiliates alleging they are liable for groundwater contamination (Brunswick County, North Carolina v. DowDuPont Inc., et al., No. 17-209, E.D. N.C.).
- Federal Judge Finds Pre-Close Of Discovery Summary Judgment Motion Premature
SEATTLE - With another eight months before discovery closes, a plaintiff should be provided the opportunity to continue developing her asbestos case against a named defendant, a federal judge in Washington held May 25 in denying summary judgment without prejudice (Donald Varney, et al. v. Air & Liquid Systems Corp., et al., No. 18-5105, W.D. Wash., 2018 U.S. Dist. LEXIS 88225).