Mealey's Discovery : Mealey's : Legal News & Analysis

Mealey's Discovery

January 24, 2023
California Court: Trial Court Gave Talc Corporate Witness Too Much Leeway

LOS ANGELES — A company’s designated corporate witness is still just a lay witness subject to the same rules as any other litigant and may testify only to personal knowledge in an asbestos-talc case even in the face of a latent disease and the associated evidence difficulties, a California appeals court found Jan. 23 in reversing summary judgment after finding that a trial court erred in allowing Avon Products Inc.’s witness to channel knowledge she allegedly learned during an investigation.
January 24, 2023
J&J Debtor Seeks Names Of All 33 Participants In Asbestos-Talc Study

TRENTON, N.J. — LTL Management LLC, the Chapter 11 debtor holding all of Johnson & Johnson’s asbestos liabilities, is asking a New Jersey federal bankruptcy judge to order the occupational disease expert who conducted a study on the connection between asbestos in talcum powder and mesothelioma to produce the names of all 33 study subjects based on the discovery that one of the participants had also submitted a claim for occupational exposure to asbestos in addition to exposure to talc.
January 23, 2023
High Court Dismisses Certiorari Petition In Argued Attorney-Client Privilege Suit

WASHINGTON, D.C. — Two weeks after an oral argument session that was marked by acknowledged confusion among the justices, the U.S. Supreme Court on Jan. 23 dismissed as improvidently granted the writ of certiorari in a dispute over the proper application of the attorney-client privilege to “dual-purpose” documents.
January 23, 2023
Flint Plaintiffs: Defendant’s Digital Campaign Targeted Jurors During Trial

ANN ARBOR, Mich. — Flint water crisis litigation plaintiffs have filed a reply brief in Michigan federal court arguing that it should compel an engineering firm to produce documents related to an ongoing digital advertising campaign they say targeted jurors during the first bellwether lead contamination case. They also say the firm’s responses to the plaintiffs’ motion to compel do not comply with Federal Rule of Civil Procedure 36(a)(4).
January 19, 2023
Government: ‘Burden’ Of Producing Documents In AFFF Case ‘Outweighs’ The Benefit

CHARLESTON, S.C. — The U.S. government has filed a brief in South Carolina federal court in the multidistrict litigation for the firefighting agent known as aqueous film forming foam (AFFF), opposing a motion by the defendants’ co-lead counsel to compel the production of documents that were withheld based on the deliberative process privilege. The government maintains that the burden of producing the documents outweighs the benefit and is not proportional to the needs of the case.
January 17, 2023
Medical Provider Objects To Discovery In Insurance Pay Dispute

CLEVELAND — A special master ordered discovery production “wholly irrelevant” to the question of whether an insurer reasonably compensated a provider for emergency services, a plaintiff argues in a federal court in Ohio.
January 13, 2023
SEC Seeks To Compel Law Firm To Comply With Investigative Subpoena Over Cyberattack

WASHINGTON, D.C. — Citing a refusal by Covington & Burling LLP to disclose the names of 298 of its clients that were affected by a cyberattack, the Securities and Exchange Commission filed an application in District of Columbia federal court, seeking an order to show cause why the law firm should not be compelled to comply with an investigative subpoena by which the SEC says it wants to determine whether any material nonpublic information (MNPI) was compromised.
January 13, 2023
Musk Failed To Show Consent Agreement Modification Was Warranted, Panel Told

NEW YORK — A federal district court did not err in denying Elon Musk’s motion to quash portions of a Securities and Exchange Commission subpoena and terminate a consent agreement with the SEC because it properly ruled that the Tesla CEO failed to sufficiently meet his “burden of demonstrating a significant change in circumstances that justified modifying the consent agreement,” the government argues in an appellee brief filed in the Second Circuit U.S. Court of Appeals.
January 12, 2023
Disability Claimant Permitted To Depose Physician, Employee, Magistrate Judge Says

SALT LAKE CITY — Additional discovery in a disability benefits dispute is warranted based on exceptional circumstances in the handling of a claim for long-term disability benefits (LTD), a Utah federal magistrate judge said in allowing the disability claimant to depose the disability insurer’s physician and one of the insurer’s employees.
January 12, 2023
Disability Claimant Permitted To Depose Physician Employed By Disability Insurer

CHICAGO — An Illinois federal magistrate judge granted a disability claimant’s motion for limited discovery and said the claimant is permitted to depose a physician employed by the disability insurer because the claimant raised the possibility that the physician operated under a conflict of interest.
January 11, 2023
Magistrate Finds Rule 45 Discovery Subpoenas Can Be Served On Expert Witnesses

CHICAGO — After conducting a thorough examination of federal rules and case law from across the country, an Illinois federal magistrate judge concluded that Federal Rule of Civil Procedure 45 permits the issuance of a subpoena seeking documents on a nonparty expert witness who is testifying for an opponent.
January 10, 2023
Patent Owner’s Invoking Of Attorney Communication Waived Privilege, Judge Says

FORT LAUDERDALE, Fla. — A patent holder’s mention of a communication with its counsel as a defense to inequitable conduct claims put that communication at issue, a Florida federal judge found, agreeing with a magistrate’s finding that this waived any privilege in this communication and overruling the plaintiff’s objection to the magistrate’s ruling.
January 10, 2023
Discovery Disputes Put Brakes On Automakers’ Bids For Summary Judgment

NEW YORK — In a pair of opinions, a New York justice found that two automakers’ failure to produce routine discovery in an asbestos case warranted denying motions for summary judgment, even though the plaintiff indicated that discovery was closed.
January 09, 2023
Justices Admit Confusion Over Attorney-Client Privilege Application Tests

WASHINGTON, D.C. — During oral argument on Jan. 9 over whether the primary purpose or significant purpose test is appropriate for determining if a dual-purpose document can be protected by the attorney-client privilege, the justices of the U.S. Supreme Court on multiple occasions voiced confusion over the differences between the tests’ names and how courts can determine what percentage of a communication with a client constitutes privileged legal advice.
January 09, 2023
Gambia, Meta Settle 2 Discovery Requests Over Genocide Posts, Documents

WASHINGTON, D.C. — A District of Columbia federal judge signed and approved a stipulation between the Republic of the Gambia and Meta Platforms Inc. that partly resolves a discovery dispute in which the nation sought subpoenas compelling the Facebook operator to turn over social media posts and internal investigatory documents related to acts of genocide carried out by government officials in Myanmar.
January 09, 2023
Meta, TikTok Investigatory Documents To Be Produced In Social Media Addiction MDL

OAKLAND, Calif. — The California federal judge overseeing the recently created multidistrict litigation over the purported addictive nature of social medium for teenagers issued a discovery order directing the operators of Facebook and TikTok to submit certain documents they previously produced in connection with related state investigations.
January 09, 2023
Plaintiffs Oppose DuPont’s Move For Reconsideration Of AFFF Discovery Order

CHARLESTON, S.C. — The Plaintiffs’ Executive Committee (PEC) in the multidistrict litigation for the firefighting agent known as aqueous film forming foam (AFFF) has filed a brief in South Carolina federal court opposing a motion by E.I. du Pont de Nemours & Co. (Old DuPont) and one of its affiliates seeking reconsideration of the court’s order that partially granted the PEC’s motion to compel the production of documents. The PEC argues that the defendants fail to establish “any of the narrow grounds for reconsideration.”
January 05, 2023
Magistrate Judge Quashes Asbestos-Talc Subpoena, Will Consider Sanctions

NEWPORT NEWS, Va. — An employer of an expert responsible for an asbestos-talc study successfully moved to quash a subpoena, with a federal magistrate judge in Virginia finding the fact that experts in the case relied on the study too tenuous a connection for the discovery in question and saying he would consider sanctions.
January 03, 2023
High Court Told Significant Purpose Test Protects Attorney-Client Privilege

WASHINGTON, D.C. — On the eve of Jan. 9 oral arguments on the application of attorney-client privilege in the context of dual-purpose documents sought in discovery, a petitioner law firm tells the U.S. Supreme Court in its Dec. 30 reply brief that the significant purpose test “faithfully applies” the protections of the privilege to “a client’s confidential communications with a lawyer.”
December 28, 2022
Asbestos Law Firm Says Judge Wrongly Unsealed Privileged Material

LOS ANGELES — A wrongly disclosed order sealed by one judge in an attorney-law firm employment dispute to prevent the disclosure of privileged attorney-client communications should not have been unsealed by a second judge, a plaintiff’s side asbestos firm told a California appeals court.
December 22, 2022
Federal Magistrate Judge Denies Request For Discovery In Chinese Drywall Case

MOBILE, Ala. — Additional discovery is not warranted because a group of four homeowners failed to specify what kind of discovery they were seeking and the manufacturers and distributors of defective Chinese drywall already agreed to file stipulations regarding liability and causation, a federal magistrate judge in Alabama held in denying the homeowners’ request.
December 21, 2022
Judge Orders Response To Claim Asbestos-Talc Defendants Withheld Experts

NEW YORK — A federal judge in New York on Dec. 20 gave defendants until the end of the day on Dec. 21 to respond to a letter motion claiming that the defendants were intentionally withholding asbestos-talc experts at the risk of irreparable prejudice to a living mesothelioma plaintiff.
December 19, 2022
Developer Ordered To Produce 6 Email Exchanges In CGL Coverage Lawsuit

SEATTLE — A federal judge in Washington ordered a developer to turn over six unredacted versions of email exchanges the judge deemed not protected by the work product doctrine in a commercial general liability insurance dispute with insurers stemming from the construction of a Hilton Garden Inn hotel.
December 19, 2022
Federal Magistrate Judge Says Plywood Accreditation Documents Are Not Privileged

FORT LAUDERDALE, Fla. — A Florida federal magistrate judge ordered an accreditor of plywood certifying agencies to immediately produce documents related to the accreditation of an agency that a coalition of nine American plywood manufacturers allege is certifying substandard Brazilian plywood as meeting U.S. standards, finding that the accreditor’s claimed privilege is available only to government agencies.
December 16, 2022
Paraquat MDL Judge Adopts Disputed Special Master’s Report On Discovery Issues

EAST ST. LOUIS, Ill. — A federal judge in Illinois on Dec. 15 adopted a report and recommendation from a special master related to discovery disputes in the multidistrict litigation for injuries allegedly caused by exposure to the pesticide paraquat, overruling the objections of both the plaintiffs and the defendants and finding that the special master did not abuse his discretion.