http://www.lexisnexis.com/mealeys/news.aspx Headline Discovery Legal News from LexisNexis® en-us http://www.lexisnexis.com/mealeys/images/lexismealeyslogo.gif 130 29 http://www.lexisnexis.com/mealeys/news.aspx Copyright 2013 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%201%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' SAN FRANCISCO - Rambus Inc., which was previously awarded $349 million on patent infringement allegations, saw its award slashed to $99 million in May 8 ruling by a California federal judge (SK Hynix Inc., et al. v. Rambus Inc., No. 00-20905, N.D. Calif.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%202%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' GREEN BAY, Wis. - A federal judge in Wisconsin on May 14 denied a motion for sanctions against a former employee accusing a company of forcing him into retirement, after finding that counsel for the defense was told by the plaintiff's attorney that he would not be deposed until he received records about severance packages the company offered to other employees (John Dauska v. Green Bay Packaging Inc., et al., No. 12-C-925, E.D. Wis.; 2013 U.S. Dist. LEXIS 68375). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%203%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' LAS VEGAS - A federal magistrate judge in Nevada on May 10 refused to dismiss a man's claim that he suffered a cervical spine injury as a result of an automobile accident in July 2005 based on his loss of X-rays that allegedly showed that his condition had not improved, finding that the plaintiff can have another X-ray taken (Eric Holiday v. American Casualty Co. of Reading, Pa., d/b/a March USA Inc., No. 11-cv-02089-GMN-NJK, D. Nev.; 2013 U.S. Dist. LEXIS 66940). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%204%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' MEMPHIS, Tenn. - A federal judge in Tennessee on May 14 refused to dismiss a plaintiff's civil rights and Fair Housing Act (FHA) lawsuit after finding that his failure to comply with an April 12 order was an honest mistake that did not prejudice the defendants (Cecil Johnson v. Belvedere Gardens Condominium Association Inc., et al., No. 12-2118-SHM, W.D. Tenn.; 2013 U.S. Dist. LEXIS 68314). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%205%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' SAN JOSE, Calif. - A California judge on May 3 issued a minute order denying sanctions against several plaintiff municipalities regarding spoliation of evidence in the complex lead paint nuisance litigation filed by multiple California municipalities against manufacturers of lead and lead paint (Santa Clara County, et al. v. Atlantic Richfield Co., et al., No. 00-788657, Calif. Super., Santa Clara Co.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%206%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' DENVER - A 10th Circuit U.S. Court of Appeals panel on May 6 held that it lacked jurisdiction to review rulings denying requests by defendants in a trespass, conversion and unjust enrichment suit for a protective order and to quash a subpoena seeking the production of legal advice they received, after finding that the decisions were not final orders and that the defendants had other ways to seek review of the orders (United States of America v. Copar Pumice, et al., No. 12-2104, 10th Cir.; 2013 U.S. App. LEXIS 9148). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%207%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' WASHINGTON, D.C. - A federal magistrate judge in the District of Columbia on May 13 ruled that the federal government should produce a witness for a Federal Rule of Civil Procedure 30(b)(6) deposition in response to Lockheed Martin Corp.'s (LMC) request for information regarding the government's operation of Credit Cost Principle related to the company's lawsuit under the Comprehensive Environmental Response, Compensation, and Liability Act, but found that requests concerning five other topics were overbroad (Lockheed Martin Corporation v. United States of America, No. 08-1160, D. D.C.; 2013 U.S. Dist. LEXIS 674399). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%208%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW YORK - Communications between an insured and its environmental consultant are protected from discovery by the work product doctrine, a New York federal judge said April 22 in denying an insurer's motion to compel (Travelers Indemnity Co., et al. v. Northrup Grumman Corp., et al., No. 12-3040, S.D. N.Y.; 2013 U.S. Dist. LEXIS 58856). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%209%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' INDIANAPOLIS - Even though an insurer and its insured are now adverse parties in an insurance bad faith dispute, an Indiana federal judge on April 22 held that the insurer could not invoke the attorney-client privilege or the work product doctrine to prevent disclosure of documents from its privilege log to its insured, who was the party for whom those documents were originally created (Randall L. Woodruff v. American Family Mutual Insurance Co., No. 1:12-cv-00859, S.D. Ind.; 2013 U.S. Dist. LEXIS 56883). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%2010%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' TRENTON, N.J. - A New Jersey state court judge on May 14 ruled that unfiled transcripts from depositions of environmental experts for ExxonMobil Corp. should not be produced to a law firm, after finding that the state's interest in protecting the information outweighs the public's need for the information (Drinker Biddle & Reath LLP v. New Jersey Department of Law and Public Safety, Division of Law, No. L-63-09, N.J. Super., Mercer Co.; See September 2011, Page 15). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%2011%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' HARRISBURG, Pa. - A Pennsylvania Commonwealth Court panel on May 15 reversed an Environmental Hearing Board's decision requiring a gas gathering and processing company to produce documents to the Clean Air Council (CAC) after finding that the board should have first decided if the documents contained trade secrets and if the CAC showed a compelling need for the information (Mark West Liberty Midstream & Resources LLC v. Clean Air Council, et al., No. 1508 C.D. 2012, Pa. Cmwlth.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%2012%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' INDIANAPOLIS - A federal magistrate judge in Indiana on April 29 denied in part a plaintiff's motion to compel a woman who accused him of stalking her from re-producing her archived emails in native format, finding that the request was unduly burdensome (Mark Keaton v. Dave Hannum, et al., No 12-cv-00641-SEB-MJD, S.D Ind.; 2013 U.S. Dist. LEXIS 60519). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%2013%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW YORK - The judge presiding over the lawsuit filed by Chevron Corp. in the U.S. District Court for the Southern District of New York to prevent enforcement of an $18 billion personal injury and property damage judgment entered in a Lago Agrio, Ecuador, court issued an order May 14 denying a motion by the defendants to intervene to prevent enforcement of a subpoena duces tecum on a nonparty law firm; Chevron needs the documents, and the defendants have not produced them, according to the judge (Chevron Corp. v. Steven R. Donziger, et al., No. 11-691, S.D. N.Y.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%2014%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' FORT LAUDERDALE, Fla. - A group called the Committee Movants in the Chapter 11 bankruptcy of Rothstein Rosenfeldt Adler (RRA), the former law firm of convicted Ponzi scheme operator Scott Rothstein, on May 13 moved in a Florida bankruptcy court to quash subpoenas on grounds that they do not identify who is seeking discovery and that some of the discovery sought is privileged (In Re: Rothstein Rosenfeldt Adler, No. 09-34791, Chapter 11, S.D. Fla. Bkcy.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%2015%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' COLUMBUS, Ohio - A copyright holder has sufficiently established good cause sufficient to serve subpoenas on the Internet service providers (ISPs) of 36 Doe defendants suspected of participating in illegal downloading of a movie via the BitTorrent file transfer protocol, an Ohio federal magistrate judge ruled May 8 (Elf-Man LLC v. Does 1-36, No. 2:13-cv-00308, S.D. Ohio; 2013 U.S. Dist. LEXIS 66319). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%2016%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CHICAGO - Efforts by a class of photographers and artists to compel a company that compiles television programming information to provide its data in a New York copyright action against Google Inc. were denied May 6 by an Illinois federal judge (American Society of Media Photographers, et al. v. Tribune Media Services LLC, No. 13-408, N.D. Ill.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%2017%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' WASHINGTON, D.C. - Competitive Enterprise Institute (CEI) on May 2 filed a Freedom of Information Act (FOIA) suit in the U.S. District Court for the District of Columbia, seeking to compel the U.S. Environmental Protection Agency to produce emails sent from one of its regional administrator's personal email accounts regarding agency business because the information is not protected from disclosure (Competitive Enterprise Institute v. U.S. Environmental Protection Agency, No. 13-627, D. D.C.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%2018%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW YORK - A federal judge in New York on May 8 denied Royal Bank of Canada's (RBC) request to compel the U.S. Commodity Futures Trading Commission (CFTC) to release notes related it its investigation of the bank, finding that the CFTC is not required to provide the documents because they are internal communications (Commodity Futures Trading Commission v. Royal Bank of Canada, No.12-2497, S.D. N.Y.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%2019%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' BOSTON - A previously imposed protective order governing the disclosure of evidence in the computer fraud case against now-deceased Aaron Swartz was modified May 13 when a Massachusetts federal judge granted a motion by the defendant's estate to permit release of documents in light of a congressional investigation and high public interest in the matter (United States of America v. Aaron Swartz, No. 1:11-cr-10260, D. Mass.; 2013 U.S. Dist. LEXIS 67702). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%2020%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' MARTINSBURG, W.Va. - A retail employer must turn over employee records to a class plaintiff alleging that her former employer violated the West Virginia Wage Payment and Collection Act (WPCA) when it failed to pay her wages within 72 hours of her termination, a West Virginia federal judge ruled April 25 (Stephanie N. Paulino, et al. v. Dollar General Corporation, et al., No. 12-75, N.D. W.Va.; 2013 U.S. Dist. LEXIS 59371). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-8%20Mealey%27s%20Litig.%20Rep.%20Disc.%2021%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' ALBANY, N.Y. - The Fourth Department New York Supreme Court Appellate Division on April 26 held that a plaintiff in a lead exposure cause of action must turn over to the defense medical reports of treating or examining medical service providers detailing a diagnosis of all injuries he alleges were the result of his exposure to lead-based paint (Shawn Giles, also known as Shawn Anthony Coffee, v. A. Gi Yi, et al., No. 59 CA 12-01288, N.Y. Sup., App. Div., 4th Dept.; 2013 N.Y. App. Div. LEXIS 2921). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%201%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CINCINNATI - A 2-1 panel of the Sixth Circuit U.S. Court of Appeals on March 26 held that federal judge's ruling awarding summary judgment to an insurance company as a sanction for spoliation of evidence should be reversed, finding that a lesser sanction, such as an adverse inference jury instruction, was available (Sam Byrd v. Alpha Alliance Insurance Corp., No. 12-5400, 6th Cir.; 2013 U.S. App. LEXIS 6398). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%202%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' WASHINGTON, D.C. - A panel of the District of Columbia Circuit U.S. Court of Appeals on March 29 reversed rulings awarding summary judgment to the U.S. Department of Justice (DOJ) on claims under the Privacy Act of 1974 brought by two applicants to the Honors Program, after finding that the judge should have imposed a negative spoliation inference because of the agency's destruction of annotated versions of the plaintiffs' applications as well as printouts documenting their political affiliation (Sean Gerlich, et al. v. United States Department of Justice, et al., No. 09-5354, D.C. Cir.; 2013 U.S. App. LEXIS 6285). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%203%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CINCINNATI - A Sixth Circuit U.S. Court of Appeals panel on April 11 found that a U.S. Tax Court judge did not err in refusing to impose spoliation sanctions against the Internal Revenue Service for the destruction of records after finding that the plaintiffs were unable to demonstrate that the agency discarded the records with a culpable state of mind and did so willfully (Charles L. Garavaglia, et al. v. Commissioner of Internal Revenue, No. 12-1438, 6th Cir.; 2013 U.S. App. LEXIS 7433). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%204%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEWARK, N.J. - A federal magistrate judge in New Jersey on March 25 ruled that an adverse inference jury instruction was a sufficient sanction against a personal injury plaintiff for the deletion of his Facebook account, after finding that the loss of the information from the account was prejudicial to the plaintiffs (Frank Gatto v. United Airlines Inc., et al., No. 10-cv-1090-ES-SCM, D. N.J.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%205%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW YORK - A federal magistrate judge in New York on March 26 ordered an attorney accused of negligence and legal malpractice to appear for a hearing to determine her culpability when destroying computers she used for business purposes after she was aware of the potential of litigation from a former client (Michael DiStefano, et al. v. Law Offices of Barbara H. Katsos PC, et al., No. CV 11-2893, E.D. N.Y.; 2013 U.S. Dist. LEXIS 47036). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%206%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' ST. PAUL, Minn. - A federal Minnesota judge on March 20 granted in part a motion for violation of a protective order brought by plaintiffs in a Medicare and Medicaid false claims suit (United States of America, ex rel Ricia Johnson, et al. v. Golden Gate National Senior Care, et al., No.08-1194, D. Minn.; 2013 U.S. Dist. LEXIS 39011). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%207%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' DENVER - The Colorado Supreme Court on April 15 vacated a ruling requiring a defendant in a misappropriation of trade secrets case to turn over his personal computers, smart phones and three years' worth of phone records, after finding that the trial court failed to properly address privacy concerns before granting the plaintiff company's motion to compel (In re: Plaintiffs Gateway Logistics Inc., et al. v. Christopher Patrick Smay, et al., No. 12SA287, Colo. Sup.; 2013 Colo. LEXIS 288). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%208%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' SOUTH BEND, Ind. - Claiming that defendant Biomet Inc. used a search method that deprives them of as much as 80 percent of relevant documents, plaintiffs in the Biomet M2A Magnum hip multidistrict litigation on April 1 asked an Indiana judge to order defendant Biomet to start over using another search method (In Re: Biomet M2A Magnum Hip Implant Products Liability Litigation, MDL Docket No. 2391, No. 3:12-md-2391, N.D. Ind., South Bend Div.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%209%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW ORLEANS - A federal magistrate judge in Louisiana overseeing discovery in a suit brought under the Racketeer Influenced and Corrupt Organizations Act on April 3 held that the plaintiff company must produce documents related to a report created by an accounting firm, finding that it was not protected by the work product doctrine because it was not generated in anticipation of litigation (Global Oil Tools Inc. v. Wilfred J. Barnhill, et al., No. 12-1507, E.D. La.; 2013 U.S. Dist. LEXIS 48226). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%2010%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' SAN FRANCISCO - A federal magistrate judge in California on April 5 ordered Microsoft Corp. to produce the facts surrounding an investigation into a former employee but not privileged communications between the investigator and in-house counsel on the matter, finding that the company's use of the investigation in defending against the plaintiff's claims did not result in a waiver of privilege (K. Oliver v. Microsoft Corporation, No. C 12-00943 RS, N.D. Calif.; 2013 U.S. Dist. LEXIS 49721). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%2011%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' KANSAS CITY, Kan. - A federal magistrate judge in Kansas overseeing a garnishment case on April 3 ordered Geico Indemnity Insurance Co. to turn over the remaining contents of a claim file it has involving an automobile accident that left the plaintiff severely injured after finding that the company was unable to demonstrate that the information was privileged or irrelevant (Rachel Kannady, et al. v. Geico Indemnity Insurance Company, No. 12-2742-RDR, D. Kan.; 2013 U.S. Dist. LEXIS 48140). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%2012%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' DENVER - Finding that certain of an insurer's claim file documents pertained to claims investigation, rather than legal counsel, a Colorado federal magistrate judge on April 2 held that the documents were not protected from discovery under the attorney-client privilege, granting in part a policyholder's motion to compel in an insurance bad faith dispute (Colorado Mills LLC v. Philadelphia Indemnity Insurance Co., No. 1:12-cv-01830, D. Colo.; 2013 U.S. Dist. LEXIS 47601). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%2013%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' WASHINGTON, D.C. - The Competitive Enterprise Institute (CEI) and American Trade Institute (ATI) on March 28 filed a lawsuit against the U.S. Environmental Protection Agency in the U.S. District Court for the District of Columbia under the Freedom of Information Act (FOIA) that would require the agency to produce instant messages between officials discussing President Obama's alleged war on emissions from coal-fired power plants (Competitive Enterprise Institute, et al. v. United States Environmental Protection Agency, No. 13-406, D. D.C.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%2014%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' HOUSTON - A federal judge in Texas on March 30 denied Transocean Deepwater Drilling Inc.'s motion to dismiss a petition filed by the federal government for the enforcement of subpoenas served on the company by the U.S. Chemical Safety and Hazard Investigation Board (CSB) that sought all records collected by Transocean during its investigation of the release of chemicals resulting from the explosion of the Deepwater Horizon oil rig (United States of America v. Transocean Deepwater Drilling Inc., No. H-11-3638, S.D. Texas; 2013 U.S. Dist. LEXIS 46537). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%2015%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' SAN JOSE, Calif. - The plaintiff broadcasters in a copyright infringement lawsuit have sufficiently shown that discovery information sought via a subpoena on Google Inc. is relevant to their claims that Aereo Inc. has infringed their copyrighted content via its Internet streaming and time-shifting technology and products, a California federal magistrate judge ruled April 10, denying Aereo's motion to quash (American Broadcasting Companies Inc., et al. v. Aereo Inc., No. 5:12-mc-80300, N.D. Calif.; 2013 U.S. Dist. LEXIS 51894). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%2016%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' ST. PAUL, Minn. - A Minnesota federal magistrate judge on March 20 ruled that a school district failed to demonstrate "an undue burden" related to most of the documents sought in a discovery motion by the plaintiffs in a dispute over a student's constitutional rights related to off-campus speech, mostly granting the plaintiffs' motion to compel (R.S., by and through her mother, S.S., v. Minnewaska Area School District No. 2149, et al., No. 0:12-cv-00588, D. Minn.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%2017%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW YORK - A New York justice on April 15 granted an insured's motion that its insurer produce documents related to post-suit conduct in an environmental contamination coverage dispute after determining that the insurer failed to prove that the documents are protected by work product privilege (Estee Lauder Inc. v. OneBeacon Insurance Group LLC, et al., No. 602379/05, N.Y. Sup., New York Co.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-7%20Mealey%27s%20Litig.%20Rep.%20Disc.%2018%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' SEATTLE - A Washington federal judge on April 12 granted in part and denied in part an insured's motion to compel discovery from its insurer in a dispute over coverage for claims that the insured violated the False Claims Act by wrongfully discharging its chief financial officer and retaliating against him for blowing the whistle (Carolina Casualty Insurance Co. v. Omeros Corporation, et al., No. C12-287RAJ, W.D. Wash.; 2013 U.S. Dist. LEXIS 53225). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%201%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' Q WASHINGTON, D.C. - A Utah federal judge abused his discretion in granting an adverse inference sanction against ASUSTeK Computer Inc. and Asus Computer International (ASUS, collectively), based on their failure to produce the source code for an executable software program used to detect floppy disk controller (FDC) defects, the Federal Circuit U.S. Court of Appeals ruled March 18 (Phillip M. Adams & Associates LLC v. ASUSTek Computer Inc. et al., No. 12-1238, Fed. Cir.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%202%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CHICAGO - A Seventh Circuit U.S. Court of Appeals panel on March 15 affirmed a federal judge in Wisconsin's decision to deny an inmate's request for spoliation sanctions over three corrections officers' failure to preserve surveillance footage that captured their alleged use of excessive force, holding that the plaintiff was unable to show that the loss of the information was the result of bad faith (Larry Bracey v. James Grondin, et al., No. 12-1644, 7th Cir.; 2013 U.S. App. LEXIS 5273). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%203%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CINCINNATI - A federal judge in Tennessee did not err in vacating an order imposing sanctions against the state's Medicaid program after he was assigned to the case, a Sixth Circuit U.S. Court of Appeals panel ruled March 13, finding that he applied the proper legal standard and fully explained his decision to reverse the ruling (John B., et al. v. Mark Emkes, Commissioner, Tennessee Department of Finance and Administration, et al., No. 12-5414, 6th Cir.; 2013 U.S. App. LEXIS 5258). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%204%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW YORK - A Second Circuit U.S. Court of Appeals panel on March 15 upheld a federal judge in New York's decision to impose dismissal sanctions against a pro se plaintiff in a suit brought under Title VII of the Civil Rights Act of 1964 after agreeing that lesser sanctions would not have been effective in remedying the plaintiff's willful noncompliance with the court's discovery orders (Ariel Antonmarchi v. Consolidated Edison Company of New York Inc., No. 12-1849, 2nd Cir.; 2013 U.S. App. LEXIS 5164). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%205%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' COLUMBUS, Ohio - A federal judge in Ohio on Feb. 28 denied JP Morgan Chase Bank, N.A.'s merit-based motion for summary judgment and imposed an adverse inference jury instruction as a sanction for the bank's destruction of data from 2007 that was pertinent to claims from the Equal Employment Opportunity Commission that the defendant treated female mortgage consultants differently from their male counterparts (Equal Employment Opportunity Commission v. JP Morgan Chase Bank N.A., No. 09-cv-864, S.D. Ohio). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%206%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' WASHINGTON, D.C. - A federal judge in the District of Columbia on March 1 modified the terms of an adverse inference jury instruction imposed against a defendant company that allowed the destruction of relevant emails and slightly reduced the amount the company must reimburse plaintiffs for costs incurred in bringing their motions to compel and for sanctions (Jarrod Beck, et al. v. Test Masters Educational Services Inc., No. 04-1391, D. D.C.; 2013 U.S. Dist. LEXIS 28716). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%207%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' EAST ST. LOUIS, Ill. - The issue of whether employees at the Illinois Department of Corrections (IDOC) willfully destroyed mail receipts requested by a plaintiff inmate is a matter for trial, a federal magistrate judge in Illinois ruled March 20 in denying the plaintiff's motion for sanctions (David Gevas v. Joyce Hoskinson, et al., No. 11-cv-325-MJR, S.D. Ill.; 2013 U.S. Dist. LEXIS 38368). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%208%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' CHICAGO - Emails and memos exchanged between two sections of the U.S. Department of Justice (DOJ) in charge of enforcing environmental laws and defending the government in suits brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) over the terms of a consent decree with companies over the cleanup of a Superfund site in Wisconsin are protected by the work product doctrine, a panel of the Seventh Circuit U.S. Court of Appeals ruled Feb. 20, holding that the sections are not adversaries because they are still acting on behalf of the federal government (Menasha Corporation, et al. v. United States Department of Justice, No. 12-1720, 7th Cir.; 2013 U.S. App. LEXIS 3521). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%209%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' OLYMPIA, Wash. - A homeowners insurer was entitled to have a trial court conduct an in camera review of its claims file in connection with a bad faith claim against it, the Washington Supreme Court rule on Feb. 21 in an en banc opinion, while stressing that courts must follow specific guidelines in conducting and permitting such review (Bruce Cedell v. Farmers Insurance Company of Washington, No. 85366-5, Wash. Sup.; 2013 Wash. LEXIS 149; See August 2010, Page 10). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%2010%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' TRENTON, N.J. - A federal judge in New Jersey on March 19 granted the majority of a motion for a protective order filed by the federal government in a $24 million Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) lawsuit, after finding that it properly asserted the deliberative process privilege over the documents (United States of America av. Pechiney Plastics Packaging Inc., No. 09-5692, D. N.J.; 2013 U.S. Dist. LEXIS 37640). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%2011%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' KANSAS CITY, Kan. - A federal magistrate judge in Kansas overseeing discovery in an employment discrimination suit on March 20 held that investigative reports prepared by the Shawnee County Board of Commissioners were not privileged because they were generated during the ordinary course of business, but he rejected as overbroad the plaintiff's request for the information (Erin Olson v. Shawnee County Board of Commissioners, No. 12-2084-JTM-KGG, D. Kan.; 2013 U.S. Dist. LEXIS 38442). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%2012%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' WASHINGTON, D.C. - A Virginia judge properly quashed two subpoenas issued pursuant to 35 U.S. Code Section 24 in an inter partes re-examination proceeding, the Federal Circuit U.S. Court of Appeals ruled March 20 in a case of first impression (Abbott Laboratories v. Cordis Corporation, No. 12-1244, Fed. Cir.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%2013%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' ST. LOUIS - A Missouri federal judge on March 4 partially granted and partially denied a motion to compel a company accused of sending out unsolicited fax advertisements to provide responses to interrogatories served by the plaintiff in its Telephone Consumer Protection Act (TCPA) class suit (Critchfield Physical Therapy, P.C., et al. v. Techhealth, Inc., No. 12-268, E.D. Mo.; 2013 U.S. Dist. LEXIS 29672). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%2014%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' PITTSBURGH - Efforts by a defendant recently ordered by jurors to pay $1.1 billion in patent infringement damages to force a plaintiff to produce privileged documents were rejected Feb. 28 by a Pennsylvania federal judge (Carnegie Mellon University v. Marvell Technology Group Ltd., No. 09-290, W.D. Pa.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%2015%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW YORK - A federal magistrate judge in New York on Feb. 1 refused to require nonparty American Express Co. to comply with a discovery request originally filed by class plaintiffs before the parties agreed to a $7.25 billion settlement that has since received preliminary approval, concluding that the motion to compel discovery was untimely filed (In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, No. 1:05-md-01720, E.D. N.Y.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%2016%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' ST. LOUIS - A federal judge in Missouri on Feb. 20 ruled that a consumer must provide more complete answers to two interrogatories served by a defendant debt collector in a Fair Debt Collection Practices Act (FDCPA) lawsuit because the consumer's answers were incomplete (Sherry A. Young v. Kruse, Reinker & Hamilton LLC, et al., No. 12-778, E.D. Mo.; 2013 U.S. Dist. LEXIS 22835). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%2017%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' COLUMBUS, Ohio - The magistrate judge presiding over the declaratory judgment and indemnification litigation filed by a southern Ohio water utility against DuPont for perfluorooctanoic acid contamination from the Washington Works refinery near Parkersburg, W.Va., issued orders on Feb. 19 granting in part motions to compel filed by the utility and DuPont (The Little Hocking Water Association v. E.I. du Pont de Nemours & Co., No. 09-1081, S.D. Ohio; 2013 U.S. Dist. LEXIS 22213). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%2018%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' NEWARK, N.J. - Zimmer GmbH, the Swiss subsidiary of Zimmer Holdings Inc., will not seek to remove cases in which it is named as a defendant to Switzerland and will voluntarily produce documents located in that country, according to a March 1 agreed order in the Zimmer Durom Hip Cup multidistrict litigation (In Re: Zimmer Durom Hip Cup Products Liability Litigation, MDL Docket 2158, No. 2:09-dv-4414, D. N.J.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=10-6%20Mealey%27s%20Litig.%20Rep.%20Disc.%2019%20(2013)&view=full&ORIGINATION_CODE=00144 target='_blank' By Amy Jane Longo and Usama Kahf Having gained judicial approval - or acknowledgement - in fewer than a handful of cases, the method for collecting and reviewing electronic documents for discovery known as "predictive coding" appears to be "trending" - to borrow a term from social media culture. One way to understand the emergence of predictive coding - which is referred to alternately as computer-assisted review, technology-assisted review or intelligent review - is as an answer to the many critiques levied over the years by courts, litigants, and legal scholars about the adequacy of the "search terms" method of culling through repositories of electronically stored information (ESI) for relevant discoverable evidence.1 With the exponential increase in ESI discovery over the last decade, courts regularly address challenges to the sufficiency of producing parties' efforts to search for and collect relevant ESI.2 Discovery disputes abound over the search terms utilized, number of custodians, types of repositories searched, and method of collection.3 To satisfy a party's obligations in responding to discovery requests, the method the party uses to search, collect, and review ESI must be defensible as reasonable, if challenged.4 Importantly, while cost of discovery is certainly an important consideration for all parties, the legal adequacy of any search and review method must turn on its precision and accuracy in culling relevant documents and appropriately determining their responsiveness to discovery requests, not whether the method of choice provides costs savings relative to other methods.