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Mealey's Discovery

February 13, 2025
Judge Upholds Limits On Depositions, Discovery In ChatGPT Copyright Case

SAN FRANCISCO — A federal judge in California denied a motion for relief from a pretrial order, turning away arguments that limits on depositions were improper in such a complex copyright infringement case and that OpenAI entities’ income was relevant evidence in the case.
February 12, 2025
Plaintiffs Seek To Compel Discovery From Maker Of Firefighter Gear In AFFF MDL

CHARLESTON, S.C. — The Plaintiffs’ Executive Committee (PEC) in the multidistrict litigation for the firefighting agent called aqueous film forming foam (AFFF) has filed a reply brief in South Carolina federal court seeking to compel a defendant to respond to the PEC’s requests for production of documents and interrogatories, arguing that it is “undisputed” that the defendant sold what is referred to as turnout gear (TOG) that contained per- and polyfluoroalkyl substances (PFAS) to firefighters across the country.
February 12, 2025
Texas State Agencies Say They Are Immune From Paraquat Discovery, Seek Court Order

BENTON, Ill. — Texas state agencies have moved an Illinois federal court to take judicial notice of a ruling in a Texas federal court that quashed certain subpoenas that were issued in the multidistrict litigation for liability from injuries connected to the pesticide paraquat, arguing that the MDL court should rule that the agencies are immune from third-party discovery.
February 12, 2025
California Judge Limits Testing In Mesothelioma Case To BAP1 Gene

OAKLAND, Calif. — An asbestos defendant may perform genetic testing in an asbestos case, but because expert testimony suggests that science has shown that only a BAP1 mutation can independently cause mesothelioma, the testing will be limited to that single issue, a judge in California said in partially granting a motion to compel production of a sample for testing.
February 12, 2025
6th Circuit Affirms Former Exec’s Losses In ‘Top Hat’ Severance Benefits Row

CINCINNATI — Affirming that the executive severance plan at issue in the Employee Retirement Income Security Act suit “qualifies as a top-hat plan,” a Sixth Circuit U.S. Court of Appeals panel upheld discovery and judgment on the administrative record rulings against the appellant and found no error in the striking of his jury demand.
February 11, 2025
Depositions Stayed, Intervention Ruling Deferred In GEICO $1M No-Fault Fraud Suit

BROOKLYN, N.Y. — A New York federal magistrate judge on Feb. 10 deferred ruling on the U.S. government’s motion to intervene but granted its motion to stay depositions for 90 days in a no-fault insurance fraud suit alleging that the defendants, some of whom have been indicted in a related criminal case, participated in a “scheme” to submit to GEICO for payment fraudulent no-fault insurance charges of more than $1 million, finding that the government showed that a stay is warranted but failed to indicate whether the parties consented to intervention.
February 11, 2025
Federal Circuit: New Judge Needed In Patent Row After Expert Testimony Issues

WASHINGTON, D.C. — A Federal Circuit U.S. Court of Appeals panel ordered a new trial on patent infringement to be held in front of a different judge in a North Carolina federal court, holding that the judge who previously oversaw a patent dispute between two biomedical companies repeatedly made statements that could call into question his appearance of fairness in the case.
February 11, 2025
2nd Circuit: Former CEO’s Misdeeds Defeated Privilege Via Crime-Fraud Exception

NEW YORK — Any attorney-client privilege claimed in certain communications between a company’s former chief executive officer and his counsel was negated by the crime-fraud exception in light of securities filing failures and allegations of sexual misconduct, a Second Circuit U.S. Court of Appeals panel found.
February 10, 2025
Supreme Court Asked To Review Expert Disclosure Production Authority

WASHINGTON, D.C. — Appealing a New York federal judge’s order requiring him to produce expert disclosures, as well as a denial of mandamus on the matter by the Second Circuit U.S. Court of Appeals, a software developer accused of money laundering via a cryptocurrency app filed a petition for certiorari asking the U.S. Supreme Court to clarify when such disclosures may be ordered.
February 06, 2025
Claimant Met Burden Of Showing She Is Disabled From Own Occupation

SEATTLE — A Washington federal judge granted a disability claimant’s motion for judgment on the administrative record after determining that the claimant met her burden of proving by a preponderance of the evidence that she was disabled from performing the duties of her own occupation because her disability prevented her from sitting for more than four hours at a time.
February 05, 2025
Judge Partially Grants Motion To Reopen Discovery In Asbestos Case

OAKLAND, Calif. — Providing time limits for expert depositions and saying that there does not appear to be any resulting prejudice, a judge granted a motion to reopen discovery in a California asbestos case.
February 05, 2025
Asbestos-Containing Pipe Maker Seeks To Escape Spoliation Jury Instruction

WILMINGTON, Del. — A plaintiff and an asbestos-containing pipe defendant briefed a motion for reconsideration of a summary judgment ruling in Delaware court, with the plaintiff saying the company born “under the spectre of asbestos” cannot rely on “institutional ignorance” to explain away document destruction while the company told the court that the evidence destruction was inadvertent but that an adverse jury instruction issued in response would destroy any chance at a fair trial.
February 03, 2025
Judge: Microsoft Must Comply With Constitutional Notice Rule In AI Copyright Suit

NEW YORK — A federal court rule governing notice for constitutional questions applies to Microsoft Corp.’s “as applied” challenge to New York’s trademark dilution statute in an artificial intelligence case, a federal judge in the state said in ordering Microsoft to comply with the rule.
February 03, 2025
Insureds: Insurers ‘Flouted’ Order Compelling Discovery In Defects Coverage Suit

NEWARK, N.J. — Insureds asked a New Jersey court to dismiss their insurers’ lawsuit disputing coverage for an underlying construction defects lawsuit, arguing that the insurers “have refused to meaningfully participate in the discovery process, repeatedly ignored deadlines and discovery rules, flouted this Court’s Order compelling discovery, and otherwise delayed the progression of this litigation.”
February 03, 2025
Hoverboard Fire Defendants: Motion In Limine’s Fake Cites Look Like ChatGPT’s Work

CHEYENNE, Wyo. — ChatGPT appears to have authored eight incorrect legal citations in plaintiffs’ motion in limine seeking to exclude evidence and expert testimony, the defendants told a federal judge in Wyoming in opposition to the motion in a suit in which the plaintiffs say a hoverboard exploded and set fire to their home.
February 03, 2025
Delaware High Court Upholds Judgment, Discovery Ruling In Oracle Derivative Suit

DOVER, Del. — A Delaware trial court did not err in denying Oracle Corp. shareholders’ efforts to obtain certain documents from an investigation by a special litigation committee (SLC) in a derivative suit centering on Oracle’s acquisition of another tech company, the Delaware Supreme Court held, finding that the documents were largely protected by privilege.
February 03, 2025
4th Circuit Upholds $31M In Sanctions, Default Judgment For Discovery Misconduct

RICHMOND, Va. — Citing “egregious” discovery conduct and a “blatant disregard for the judicial process” exhibited by the defendants in a bankruptcy proceeding, a Fourth Circuit U.S. Court of Appeals panel found that a bankruptcy court “exhibited extraordinary patience” and was justified in assessing discovery sanctions of more than $31 million against the defendants and in disposing of the matter via entry of default judgment.
January 31, 2025
Hair Relaxer Defendants: Medical Record Redaction Not Needed, Privilege Lacking

CHICAGO — Companies sued over allegations that their hair relaxer products contain toxic chemicals have filed a brief in the multidistrict litigation for product injury claims in Illinois federal court arguing that the plaintiffs “cannot carry their burden to justify” their request to redact their mental health history from medical records in the case because the psychotherapy-patient privilege does not apply.
January 31, 2025
Burned Building Owner May Not Conduct Presuit Depositions,10th Circuit Says

DENVER — The owner of a building that was destroyed in a fire was properly denied a petition to depose employees of the U.S. Postal Service (USPS), which rented the building from him, before filing a complaint, a 10th Circuit U.S. Court of Appeals panel ruled, finding that the petitioner did not satisfy the narrow criteria for presuit discovery under Federal Rule of Civil Procedure 27.
January 30, 2025
6th Circuit Refuses To Grant Emergency Stay Of Discovery Orders In Opioid MDL

CINCINNATI — The Sixth Circuit U.S. Court of Appeals denied a motion for an emergency stay filed by pharmacy benefit managers (PBMs) pending a decision on their mandamus petition to order a district court to reverse two discovery orders in the nationwide opioid multidistrict litigation after finding that the PBMS have not demonstrated a likelihood of success on their petition.
January 28, 2025
Indiana High Court: Discovery Of Smartphone Data Requires ‘Some’ Evidence Of Use

INDIANAPOLIS — Weighing the need for requested discovery from a smartphone in an auto accident lawsuit with the phone owner’s privacy rights, an Indiana Supreme Court majority established an analytical framework in which it held that the party requesting such discovery “must provide ‘some evidence’” of the smartphone’s use before a court can grant a corresponding discovery motion.
January 27, 2025
Magistrate Denies Insurer’s Bids To Compel Discovery In Asbestos Coverage Dispute

BUFFALO, N.Y. — A federal magistrate judge in a single order denied an insurer’s motions to compel discovery in four similar suits against insurers filed by the estates of people who died purportedly from asbestos exposure, seeking payment of judgments entered against an asbestos mine, finding that though discovery of negotiations resulting in a funding agreement is related to the agreement’s impact, the disclosure of the agreement “is sufficient.”
January 27, 2025
Oklahoma Supreme Court: Litigant Can’t Subpoena An Expert’s Financial Records

OKLAHOMA CITY — Although a litigant may discover an expert witness’ compensation on a current lawsuit, the Oklahoma Supreme Court ruled that a party may not subpoena an expert to learn compensation on past cases for the purpose of uncovering potential bias, stating that there are other methods of discovering bias that do not invade a witness’s privacy.
January 24, 2025
4th Circuit Affirms Mexican Bank’s Use Of Section 1782 Subpoena On U.S. Firm

RICHMOND, Va. — A trial court did not abuse its discretion in denying a bankrupt Virginia company’s motion to quash discovery subpoenas served on it by a Mexican company seeking to recover funds from defaulted loans, a unanimous Fourth Circuit U.S. Court of Appeals panel ruled, finding that the subpoena applications complied with the requirements of U.S. Code Title 28 Section 1782.
January 23, 2025
7th Circuit Upholds Summary Judgment, Discovery Ruling In ‘Tragic’ ERISA Case

CHICAGO — Affirming a summary judgment and discovery ruling for a multiemployer health plan in “a tragic case” over refusal to reimburse close to $200,000 in out-of-network medical care, a Seventh Circuit U.S. Court of Appeals panel said the discretion the plan gave its administrator and the “deferential standard of review” compelled the result.