- Volume 15, Issue #6
- Microsoft, Government Debate Extraterritorial Reach Of SCA In High Court
WASHINGTON, D.C. - The U.S. Supreme Court heard oral arguments Feb. 27 from the U.S. government and Microsoft Corp. as to whether a warrant issued under Section 2703 of the Stored Communications Act (SCA) can compel disclosure of data that is stored in overseas servers (United States v. Microsoft Corp., No. 17-2, U.S. Sup.).
- Texas High Court Deems Patent Agent Communications Subject To Privilege
AUSTIN, Texas - Concluding that a patent agent's services in the context of patent proceedings are comparable to those provided by a patent attorney, the Texas Supreme Court on Feb. 23 held that a client's communications with his registered patent are exempt from discovery under the state's lawyer-client privilege (In re Andrew Silver, No. 16-0682, Texas Sup., 2018 Tex. LEXIS 171).
- AT&T, Time Warner Denied Discovery Of DOJ Privilege Logs In Antitrust Suit
WASHINGTON, D.C. - AT&T Inc. and Time Warner Inc. were denied discovery of certain privilege logs listing governmental communications over their proposed merger from the U.S. Department of Justice (DOJ) on Feb. 20, when a District of Columbia federal judge found that the companies failed to establish evidence of the DOJ's selective enforcement of antitrust claims against them to justify such discovery (United States v. AT&T Inc., et al., No. 1:17-cv-02511, D. D.C., 2018 U.S. Dist. LEXIS 27004).
- Most Emails Sought Are Shielded From Discovery In Pollution Coverage Row
FORT WAYNE, Ind. - Twelve of 19 emails between an insurer, a claims management company and attorneys are protected from discovery by the work product doctrine, an Indiana federal magistrate judge determined Feb. 6 after conducting an in camera review of the emails sought by an insured in an environmental contamination coverage dispute (Valley Forge Insurance Company v. Hartford Iron & Metal, Inc., et al., No. 1:14-cv-00006, N.D. Ind., 2018 U.S. Dist. LEXIS 19695).
- $25,000-A-Day Discovery Sanction Against Apple In FTC Antitrust Suit Set Aside
SAN JOSE, Calif. - A California federal judge on Feb. 7 granted nonparty Apple Inc. relief from a magistrate's order levying a $25,000-a-day discovery sanction against the firm in a Federal Trade Commission antitrust suit, with the judge deeming authority for the sanction order unclear (Federal Trade Commission, et al. v. Qualcomm Inc., et al., No. 17-cv-00220, N.D. Calif.).
- Federal Judge Declines To Strike Trade Secret In Misappropriation Suit
NEWARK, N.J. - A trade secret will not be stricken in a misappropriation of trade secrets lawsuit because a pharmaceutical company's exclusion of evidence for the trade secret was not done with willful deception or in "flagrant disregard of a court order by the proponent of the evidence," a federal judge in New Jersey ruled Feb. 8 in denying a motion by defendants to strike the trade secret (Par Pharmaceutical Inc., et al. v. QuVa Pharma Inc., et al., No. 17-6115, D. N.J., 2015 U.S. Dist. LEXIS 20775).
- Oklahoma High Court: Honda Had No Duty To Preserve 12-Year Old Data
OKLAHOMA CITY - Reversing a trial court's sanctions order, the Oklahoma Supreme Court on Feb. 13 held that American Honda Motor Co. Inc. did not have a duty to preserve certain electronic design data because there was no reason to anticipate a product liability suit that would be filed 12 years after the data's routine destruction (American Honda Motor Company Inc. v. Harold G. Hayward Jr., et al., No. 116,394, Okla. Sup., 2018 OK 14).
- Olympus Sanctioned With New 'Scope Trial, $250,000 For Discovery Violations
SEATTLE - A Washington state court judge on Jan. 16 sanctioned Olympus America Inc. for discovery violations in a duodenoscope wrongful death trial, ordering a new trial for consumer law violations and punitive damages and ordering the defendant to pay $250,000, retrial and translation costs in addition to the $1 million verdict from the first trial (Theresa Bigler, et al. v. Olympus America, Inc., et al., No. 15-2-05472-4, Wash. Super., King Co.).
- Abilify Co-Defendant Says It Can't Be Sanctioned For Deleting Emails Before Suits
PENSACOLA, Fla. - Abilify co-marketer Otsuka American Pharmaceutical Inc. (OAPI) on Feb. 22 told a Florida multidistrict litigation judge that it should not be sanctioned for discovery violations because it had no duty to preserve emails well before any litigation could have been anticipated (In Re: Abilify [Aripiprazole] Products Liability Litigation, MDL Docket No. 2734, No. 16-md-2734, N.D. Fla., Pensacola Div.).
- Fired Employee May Conduct Discovery Into Confidential Data Breach Suit Documents
PHOENIX - Granting a joint discovery resolution motion filed by the parties in a wrongful termination suit, an Arizona federal magistrate judge on Feb. 14 found that an employee who was purportedly terminated for whistleblowing related to data breaches experienced by his former employer was entitled to conduct discovery into why documents related to lawsuits over those breaches were designated as confidential (Miguel Corzo v. Maricopa County Community College District, et al., No. 2:15-cv-02552, D. Ariz.).
- Insurer Ordered To Produce Documents As They Pertain To Missing Liability Policy
BUFFALO, N.Y. - An insurer must produce a number of insurance policy forms related to commercial general liability policies it issued in the 1970s because the documents are clearly relevant to an insured's claim for coverage for underlying asbestos liabilities under a missing policy, a New York federal magistrate judge said Feb. 26 (American Precision Industries Inc. v. Federal Insurance Co., et al., No. 14-1050, W.D. N.Y., 2018 U.S. Dist. LEXIS 30596).
- Federal Judge Dismisses ERISA Claim For Failure To Provide Discovery
CLARKSBURG, W.Va. - A West Virginia federal judge on Feb. 12 found that a benefits plan and insurer were not obligated to provide a plan participant with documents in relation to his discovery request because they are not the plan administrators, granting them summary judgment on his claim for violation of the Employee Retirement Income Security Act of 1974 (Figlioli v. Liberty Life Assurance Company of Boston, et al., No. 1:17CV171, N.D. W.Va., 2018 U.S. Dist. LEXIS 22155).
- Magistrate Judge Orders Medical Providers To Turn Over Documents From Database
LOS ANGELES - Medical service providers accused by UnitedHealth Group Inc. of submitting fraudulent bills were ordered by a federal magistrate judge in California on March 2 to provide responsive documents that are contained in a database, finding that the company that has the software license for the database is an alter ego of the providers (Almont Ambulatory Surgery Center LLC, et al. v. UnitedHealth Group Inc., et al., No. CV 14-03053-MWF, C.D. Calif., 2018 U.S. Dist. LEXIS 35616).
- New Jersey Court Revives Asbestos-Tainted Fertilizer Case After Discovery Error
TRENTON, N.J. - A lawn care company's failure to disclose the existence of 26 vintage bags of product containing vermiculite from the asbestos-contaminated Libby, Mont., mine warrants vacating final judgment and reopening the case, a New Jersey appellate court held Feb. 26 (Adrianne Brandecker, et al. v. E&B Mill Supply Co., et al., No. A-05722-14T4, N.J. Super., App. Div.).
- Kansas Court Found To Have Properly Denied Source Code Review Request
TOPEKA, Kan. - A Kansas court did not err in denying a plaintiff's request to review the source codes for a program he helped develop and requiring review of the code to be done by a third party, while prohibiting him from using the third party as an expert witness because the plaintiff failed to name an expert witness during the allowable timeframe, a Kansas Court of Appeals panel ruled Feb. 16 in affirming the lower court's ruling (John Macklin v. Liquidynamics Inc., No. 116,620, Kan. App., 2018 Kan. App. Unpub. LEXIS 115).
- Justice Permits Jurisdictional Inquiry Into Talc Miner's Status In Asbestos Case
NEW YORK - A French company must respond to an inquiry regarding its potential status as a successor to a company that allegedly mined asbestos-tainted talc and would be subject to jurisdiction in New York, a justice in the state said in partially limiting the disclosures the company must make in an opinion posted Feb. 27 (Joan Arazosa, et al. v. 3M Co., et al., No. 190069/2016, N.Y. Sup., New York Co.).
- Question Of Waiver Snags Tribe's Dismissal Request For Negligent Care Claims
TACOMA, Wash. - A Washington state Indian tribe cannot yet use sovereign immunity to avoid facing negligent medical care and treatment claims because jurisdictional discovery needs to be conducted to determine whether the tribe waived immunity through its business relationships with private party medical care providers, a federal judge ruled Feb. 21 in denying the tribe's dismissal bid (The Estate of Jolene Lovelett v. State of Washington, et al., No. 16-5922, W.D. Wash., 2018 U.S. Dist. LEXIS 27959).
- Class, Defendants Debate Jurisdiction And Discovery In Flint Lead Water Case
DETROIT - Engineering consultants named as defendants in the lead-contaminated water crisis in Flint, Mich., and the class of plaintiffs alleging that they have been injured by that water on Feb. 9 filed briefs debating whether the federal district court has jurisdiction to order certain discovery at the current stage of the litigation (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).
- Rapid-American Denied Protective Order For Insurers' Subpoenas
NEW YORK - Chapter 11 debtor Rapid-American Corp. and asbestos claimants in its bankruptcy case do not have standing to challenge subpoenas served by insurers to asbestos claims-processing facilities seeking evidence of fraud in the asbestos trust system, and besides, the information sought is relevant to the debtor's declaratory judgment action against the insurers, a New York federal bankruptcy judge held Feb. 12 (Rapid-American Corporation, et al. v. Travelers Casualty and Surety Company, et al., No. 15-01095, S.D. N.Y. Bkcy., 2018 Bankr. LEXIS 378).
- Judge Affirms Exclusion Of Unchallenged Deposition Testimony In Asbestos Case
WILMINGTON, Del. - Defendants' postponement of a deposition did not waive their right to cross-examine the witness, who died two weeks after he gave truncated testimony, a Delaware judge held Feb. 7 in finding the testimony inadmissible (William Derek Sykes, et al. v. Air & Liquid Systems Corp., et al., No. N14C-03-028 ASB, Del. Super., New Castle Co.).
- Agencies' Responses To FOIA Requests About Toxins 'Insufficient,' Judge Says
WASHINGTON, D.C. - A federal judge in the District of Columbia District Court on Feb. 13 partially granted and partially denied a motion for summary judgment filed by federal agencies as part of a Freedom of Information Act (FOIA) lawsuit pertaining to chemical contamination at an Army base, ruling that some of the agencies did not provide sufficient information to satisfy the records request (Raymond C. Pulliam v. U.S. Environmental Protection Agency, et al., No. 15-1405. D. D.C.; 2018 U.S. Dist. LEXIS 23505).
- Due Diligence Exercised With FOIA Request For Bears Ears Documents, DOI Says
NEW YORK - The U.S. Department of the Interior (DOI) on Jan. 25 filed an answer in New York federal court contending that it exercised due diligence in processing the request of the New York Times Co. under the Freedom of Information Act (FOIA), 5 U.S.C. 552, pertaining to documents the newspaper sought regarding the federal government's plans to reduce the size of Bears Ears National Monument and open the area to hydraulic fracturing (New York Times Company, et al. v. United States Department of the Interior, No. 17-9883, S.D. N.Y.).
- Defendants Afforded Time To Conduct Discovery In Lead Paint Coverage Dispute
BALTIMORE - A Maryland federal judge on Feb. 22 denied an insurer's motion for summary judgment in a lead paint injury coverage suit after determining that the defendants must first be afforded the opportunity to conduct discovery on the issue of whether the insured made a material misrepresentation in the policy application (CX Reinsurance Co. Ltd., et al. v. Homewood Realty Inc., et al., No. 15-3136, D. Md.; 2018 U.S. Dist. LEXIS 28354).
- Federal Judge Won't Extend Witness, Discovery Deadlines In Asbestos Case
KANSAS CITY, Kan. - A rail car company provided no justification for why it could not have identified an expert asbestos state-of-the-art witness prior to the passage of an already extended deadline, a federal judge in Kansas held Feb. 13 in denying a motion to extend discovery and disclosure periods (Nancy Little, et al. v. The Budd Co., No. 16-4170, D. Kan., 2018 U.S. Dist. LEXIS 23230).
- Plaintiffs' Attempt To Lift Discovery Stay 'Improper,' Company Argues
SAN FRANCISCO - Pacific Gas & Electric Co. (PGE) filed a brief in California federal court on Jan. 25 arguing that the plaintiffs, who allege that the company's manufactured gas plant (MGP) has contaminated local groundwater, made an "improper" motion for an order confirming the lack of any stay of discovery in the action or, alternatively, an order lifting the stay (San Francisco Herring Association, et al. v. Pacific Gas & Electric Company, No. 14-04393, N.D. Calif.).
- Federal Judge Seals Administrative Record In Disability Insurance Dispute
SEATTLE - A Washington federal judge on Feb. 12 granted a motion jointly filed by both parties to seal the entire administrative record of a disability insurance dispute, finding that the plaintiff's right to medical privacy and the inability to redact portions of the record outweigh the public's right to access the information (David Alan Anderson v. Unum Life Insurance Company of America, No. C17-0659-JCC, W.D. Wash., 2018 U.S. Dist. LEXIS 22661).
- Judge Extends Deadlines In Cases Over Reinsurance Participation Agreement
SACRAMENTO, Calif. - In two putative class actions over a reinsurance participation agreement (RPA), a California federal judge on Feb. 6 issued extensions on deadlines for expert disclosures, completion of discovery and discovery motions (Shasta Linen Supply Inc. v. Applied Underwriters Inc., et al., Nos. 16-00158 & 16-01211, E.D. Calif., 2018 U.S. Dist. LEXIS 6079).