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Mealey's Discovery

June 28, 2024
WhatsApp Seeks Letter Rogatory To Depose Spyware Firm’s Israel-Based Employees

OAKLAND, Calif. — In its motion for issuance of a letter rogatory to obtain the testimony of 11 witnesses residing in Israel, WhatsApp Inc. represents that these past and present employees of NSO Group Technologies Limited “have relevant information regarding” the company’s purported computer fraud, complaining that the defendant “has refused to make them available for depositions.”
June 27, 2024
Magistrate Denies Protective Order For Deposition In Fire Coverage Dispute

SCRANTON, Pa. — A Pennsylvania federal magistrate judge on June 26 denied an insurer’s motion for protective order regarding a proposed deposition in an insurance coverage dispute over fire damage, finding that the disputed deposition is relevant because it addresses whether the insurer knew of the alleged improper use of the covered space when previously investigating a water damage claim.
June 27, 2024
Suboxone MDL Judge Rejects Proposal By Defense For Phased Discovery

CLEVELAND — The judge overseeing the Suboxone film multidistrict litigation rejected a proposal by a defendant to phase discovery, finding “that general causation is not so clear or cleanly divisible from other general or case-specific discovery that bifurcation would materially expedite and simplify the proceedings in this MDL.”
June 26, 2024
Judge Allows Discovery Into Successor Status In Asbestos Valves Case

NEW ORLEANS — Because the only evidence of whether a company qualifies as the successor-in-interest of another is in the possession of the defendant, its motion to dismiss implicates evidence outside the pleadings and requires limited discovery into the question, a federal judge in Louisiana said in denying a motion.
June 26, 2024
Special Master Rejects J&J’s Motion To Inspect Asbestos Expert’s Lab

TRENTON, N.J. — The special master in the New Jersey federal court multidistrict litigation involving Johnson & Johnson talc denied a motion to inspect asbestos expert William Longo’s lab, saying the “unprecedented” request seeks irrelevant information and would be unduly annoying.
June 26, 2024
Special Discovery Master Does In Camera Review In Indemnification Case

TRENTON, N.J. — Following in camera review in New Jersey federal court in a dispute between insurers and reinsurers over indemnification for asbestos bodily injury claims, a special discovery master directed insurers to produce all or part of roughly two-thirds of the sample documents he considered.
June 24, 2024
Supreme Court Rejects Petition Over FOIA Request For JFK Assassination Records

WASHINGTON, D.C. — A nonprofit political assassination archive hit a dead end on June 24 in its quest to obtain documents about President John F. Kennedy’s assassination, which were redacted and withheld by the Central Intelligence Agency, when the U.S. Supreme Court denied without comment its petition for certiorari regarding questions of declassification and disclosure under the Freedom of Information Act (FOIA).
June 21, 2024
Asbestos Expert Warns: Employee Deposition Threatens His ‘Golden Years’

ATLANTA — A non-testifying employee of asbestos expert William Longo and his lab warned that a magistrate judge’s ruling denying a motion to quash an untimely and irrelevant subpoena would doom him to spending his “golden years” giving depositions in asbestos litigation across the country.
June 19, 2024
Microsoft Joins OpenAI’s Call For Consolidation Of Media AI Suits

NEW YORK — Microsoft Corp. joined in various OpenAI entities’ motion to consolidate a suit brought by eight news organizations challenging outputs from the ChatGPT artificial intelligence and its associated programs with a similar suit filed by The New York Times Co., saying in its joinder brief filed in a federal court in New York that doing so will combine suits that challenge similar technologies.
June 18, 2024
Stay Issued In Insurer’s Breach Of Contract Suit Against Wealth Management Firm

RALEIGH, N.C. — Finding “good cause,” a North Carolina federal judge on June 17 stayed a breach of contract suit filed by a now-insolvent insurer against a wealth management company alleged to have violated a loan agreement, staying the case until the resolution of cross-motions for summary judgment in a pending related consolidated case.
June 14, 2024
J&J Can Depose Asbestos Expert Longo’s Employee, Special Master Says

TRENTON, N.J. — Johnson & Johnson entities may depose the lab employee who performed the testing on which expert William Longo relies, the special master in New Jersey involved in the federal multidistrict litigation involving asbestos-talc claims said.
June 14, 2024
Norfolk Southern: Third-Party Defendant’s Bid To Seal Is ‘Misleading On The Facts’

YOUNGSTOWN, Ohio — Norfolk Southern Railway Co. and Norfolk Southern Corp. (Norfolk Southern, collectively) filed a brief in Ohio federal court arguing that it should deny a motion to seal expert reports filed by a third-party defendant in the litigation stemming from alleged injuries from the release of toxic chemicals at the 2023 train derailment in East Palestine, Ohio, arguing that the motion to seal is “misleading on the facts.”
June 13, 2024
Third-Party Claimant Is Entitled To Depose Insurer’s Attorney In Bad Faith Suit

TAMPA, Fla. — A Florida federal magistrate judge determined that a third-party claimant who alleges that an auto insurer acted in bad faith by failing to settle a claim against its insured is entitled to depose an attorney from the firm that represents the insurer because the financial relationship between the insurer and the law firm is relevant based on the insurer’s advice-of-counsel defense.
June 12, 2024
Judge: Monsanto Must Produce Privilege Log, Materials From Other PCB Cases

BURLINGTON, Vt. — A federal judge in Vermont on June 11 partially granted a motion to compel the production of some documents in a lawsuit over polychlorinated biphenyls (PCBs) brought by a Vermont school against Monsanto Co., ruling that Monsanto’s objections were “not persuasive” and that some of the company’s arguments were not supported with citation to authority.
June 11, 2024
Colorado High Court: Privilege Between Physician And Patient ‘Survives’ Death

DENVER — A unanimous Colorado Supreme Court on June 10 discharged a rule to show cause and lifted a stay on a lower court’s in camera review of a decedent’s medical records in a dispute between siblings over the validity of their father’s most recent will, finding that though “the physician-patient privilege survives the privilege holder’s death,” disclosure of the decedent’s medical records is permitted under the testamentary exception if needed for estate administration.
June 11, 2024
Texas Court: AI Surgery Tool Maker Need Not Submit To Presuit Deposition

FORT WORTH, Texas — Even assuming counsel’s arguments during a hearing constitute evidence in a dispute involving an artificial intelligence-assisted surgery tool manufacturer, the company need not produce a corporate representative because the statements fall short of the requirements for a presuit deposition under Texas law, an appeals court in the state said, granting mandamus relief and vacating a ruling to the contrary.
June 11, 2024
Insurer Ordered To Produce Documents Related To Occupational Disease Claims

PITTSBURGH — A Pennsylvania federal judge ordered an insurer to produce claims manuals, guidelines and policies related to the insurer’s evaluation of occupational disease and employer liability claims because the documents, requested by the insured, are relevant to the insurer’s handling of the insured’s claim for coverage for an underlying asbestos bodily injury claim.
June 11, 2024
SEC Hit With FOIA Suit Over Brokers’ Off-Channel Messages Investigations

TAMPA, Fla. — A securities trade association alleges in a complaint filed in Florida federal court that the U.S. Securities and Exchange Commission violated the Freedom of Information Act (FOIA) by withholding all responsive documents related to its investigations of broker-dealers that used unauthorized personal devices to communicate with clients during the COVID pandemic, arguing that the commission improperly invoked an FOIA exemption without explanation.
June 11, 2024
X Takes Nondisclosure Order 1st Amendment Fight Over Trump Warrant To High Court

WASHINGTON, D.C. — Citing constitutional issues that it calls “critically important and recurring,” X Corp. (formerly Twitter Inc.) filed a petition for certiorari in which it asks the U.S. Supreme Court to offer guidance on when a nondisclosure order (NDO) served on an electronic communications service provider along with a warrant seeking private communications violates the First Amendment to the U.S. Constitution.
June 07, 2024
Panel: North Carolina State University Must Allow Testing Of Building With PCBs

RALEIGH, N.C. — A divided appeals panel in North Carolina has ruled that North Carolina State University (NCSU) must produce documents and must permit inspection and testing of an academic building that contains polychlorinated biphenyls (PCBs), the exposure to which a former student claims caused him to develop cancer.
June 07, 2024
Magistrate Orders Privilege Log Update In FCA Suit Over Medicare Advantage Fraud

TAMPA, Fla. — A Florida federal judge granted in part Medicare Advantage (MA) insurers’ motion to compel discovery in a relator’s qui tam suit alleging that medical providers and the insurers violated the False Claims Act (FCA) by conspiring together to increase risk adjustment scores of MA patients to obtain more federal funding than was owed, finding that the relator must update her privilege log but denying the insurers’ request for production regarding specified nonprivileged documents.
June 05, 2024
CIA Waives Certiorari Petition Response In JFK Assassination FOIA Request Suit

WASHINGTON, D.C. — The U.S. Supreme Court on June 4 set a conference date of June 20, on which it will consider a petition for certiorari in which a historical archive seeks to convince the high court to compel the Central Intelligence Agency to release certain records related to John F. Kennedy’s assassination, which the petitioner contends should no longer be classified due to their age and to their importance to a historical event that is of great public interest.
June 04, 2024
Judge: Fracking Injury Case Valid; Plaintiff May Be Able To Establish Jurisdiction

HARRISBURG, Pa. — A federal judge in Pennsylvania on June 3 denied a motion to dismiss a wrongful death lawsuit filed by a widow whose husband died while working on a hydraulic fracturing rig, ruling that there is “more than a possibility that plaintiff can establish the requisite contacts” between the drilling company he worked for and the state of Pennsylvania to establish jurisdiction.
May 15, 2024
COMMENTARY: Use Of Artificial Intelligence In E-Discovery

By Phil Beckett
June 03, 2024
New York Times, OpenAI Dispute Scope Of Discovery In AI Training Fight

NEW YORK — The New York Times Co. (NYT) told a federal judge in New York that it investigated whether ChatGPT would output protected material from the newspaper only because OpenAI Inc. and related entities are so secretive about what was used to train the artificial intelligence and that given the defendants’ admission that it tracks users, it doesn’t need any additional discovery.