Motion to Compel

News & Analysis as of

The Failure to Issue a Legal Hold Can Cause a Case to Crash and Burn

Bruner v. Am. Honda Motor Co., No. 1:15-00499-N, 2016 U.S. Dist. LEXIS 62810 (S.D. Ala. May 12, 2016). Where a defendant had never initiated a legal hold and had been continuously deleting e-mails since litigation began,...more

Spoliation Claims Are Not a Recreational Vehicle to Be Raised at Any Time in a Case

LaFerrera v. Camping World RV Sales of Birmingham, No. 15-00473 (N.D. Ala. Mar. 21, 2016). Relying on state law, the court rejected a request for spoliation sanctions included as part of a motion for summary judgment...more

Ninth Circuit Remands Dispute Over Arbitration, Finding That Third Party May Be Able To Assert Arbitration Protections

Late last month, the Ninth Circuit reversed a decision out of the Western District of Washington finding that a third party was not able to assert an arbitration provision. The underlying claim revolved around premium text...more

Defendant's "Piecemeal" Approach to Discovery and Review of Only Select Files of Corporate Employees Results in Sanctions

In this patent infringement action, the defendants conducted a "piecemeal approach to discovery, reviewing only the files of select corporate employees." The district court found that this approach was contrary to the Federal...more

Court Rides on Relevancy, Allowing Party to be Railed by Requests (North Carolina)

Amtrak v. Guy M. Turner, Inc., NO. 4:15-CV-68-BO, 2016 U.S. Dist. LEXIS 61073 (E.D.N.C. May 9, 2016) - In this personal injury case, the plaintiffs brought a suit against the owner of a tractor-trailer after a...more

District Court Denies Request for Order Compelling Production of Damage Expert Report from a Different Pending Case

In this patent infringement action between Chrimar Systems, Inc. ("Chrimar") and Alcatel-Lucent USA, Inc. ("Lucent"). Lucent sought production of the damages expert report of Plaintiffs' damages expert, Robert Mills, that was...more

Discovery Request Found Not Proportional; Department Store Relieved from Production (Florida)

Douglas v. Kohl's Dep't Stores, Inc., 2016 U.S. Dist. LEXIS 54782 (M.D. Fla. Apr. 25, 2016) - In this consumer protection case, the plaintiff alleged that the defendant, a popular department store, violated the Telephone...more

District Court May Preclude Evidence from Parent Company Where Parent Company Was Dismissed from Case and Then Refused to Provide...

When this patent infringement action began, the plaintiff explained that it was concerned that it would not be able to obtain important discovery if Ricoh Company Ltd. ("RCL"), which is the parent company of the defendants,...more

Party’s Failure to Specify Objection in Refusing Discovery Request Results in Compelled Discovery (Pennsylvania)

Heller's Gas, Inc. v. Int'l Ins. Co. of Hannover Ltd., 2016 U.S. Dist. LEXIS 71069 (M.D. Pa. June 1, 2016) - In this insurance law case, the defendants moved the court to compel the plaintiff to produce “more complete...more

Amgen v. Hospira: Amgen Appeals Discovery Ruling

In the Amgen v. Hospira litigation, Amgen has filed a Notice of Appeal relating to Judge Andrew’s oral ruling denying Amgen’s request to compel Hospira to produce certain manufacturing information related to its Epogen®...more

Litigation Funder Communications Protected by the Attorney-Client Privilege and Work Product Doctrine

Addressing a novel issue in In re: International Oil Trading Company, LLC, 548 B.R. 825 (Bankr. S.D. Fla. 2016), the United States Bankruptcy Court for the Southern District of Florida recently denied in part an involuntary...more

Ninth Circuit Affirms District Court’s Decision That Bankruptcy Court Did Not Abuse Its Discretion In Denying Motion To Compel...

This appeal is from an order by a district court in California, affirming a bankruptcy court’s denial of a motion to compel arbitration in a Chapter 7 bankruptcy trustee’s adversary proceeding, in which the trustee sought...more

Score One for the NLRB: Seventh Circuit Becomes First Federal Appeals Court to Hold that Class/Collective Action Waivers in...

The Seventh Circuit recently became the first federal appellate court to say that employers can’t prevent class/collective actions through waivers in mandatory arbitration agreements, holding that such waivers interfere with...more

Borrowers Cannot Rely on Technical Admissions to Defeat a Mortgage Foreclosure Action

Recounting the relevant facts, Wells Fargo initiated a foreclosure action against Ms. Voorhees in Sarasota County in June 2009. Wells Fargo filed a motion for summary judgment in June 2013. After Voorhees failed to file...more

Eighth Circuit: Delay In Asserting Right To Arbitrate And Using Litigation Machinery Results In Waiver

The plaintiff, a terminated employee, had signed a two year employment agreement and a separate arbitration agreement with a home décor company. The plaintiff was terminated after six months and sued the defendant in...more

Fishermen Avoid Being Caught In Arbitration’s Net

What are the defining characteristics of an arbitration agreement? The dissent in a new 9th Circuit case took on that vexing issue, while the majority sidestepped it altogether while refusing to compel arbitration....more

New York Appellate Division Reverses Order Compelling Arbitration And Reinstates Complaint Based Upon Terminated Agreement’s Forum...

New York’s First Department finds there was no clear manifestation parties had abandoned a forum selection clause by a later agreement which mandated arbitration in London. In 2000, the parties entered into two agreements:...more

Eight [Months] Is Enough — To Waive Your Arbitration Rights

Today’s post is brought to you by the number 8. The 8th Circuit Court of Appeals issued a new opinion yesterday finding that a defendant who litigated in court for 8 months waived its right to arbitrate (aka, ARBITR8)...more

Federal Courts Compels Arbitration Of Captive Insurance Dispute

Plaintiffs Capstone Associated Services, Ltd. And Capstone Associated Services (Wyoming), Limited Partnership (collectively, “Capstone”) brought suit against various defendants concerning the use of and rights to certain...more

District Court Refuses to Recognize "Apex" Doctrine for Documents Created by Inventor and Global Leader of Company

The defendant filed a motion to compel, seeking a wide array of discovery against Plaintiffs Dyson, Inc. and Dyson Limited (collectively, "Plaintiffs") to produce emails belonging to James Dyson ("Dyson"). Plaintiffs asserted...more

Court Grants Motion Of Non-Signatory To Compel Arbitration Of Privacy Violation Claims Of Putative Class Of Verizon Customers

The class action was brought by Verizon subscribers against a “targeted advertising” company business partner of Verizon (Turn, Inc.) for deceptive trade practices under New York law. Plaintiffs alleged that Turn violated...more

First Department Finds Forum Selection Clause in Earlier Agreement Valid Despite Later Agreement Providing for Arbitration

In a 3-2 split decision, a New York appellate court determined that a forum selection clause providing for litigation in New York courts had not been explicitly terminated and thus trumped agreements to submit to arbitration...more

LBL’S Persistence Pays Off With Sanctions Against Plaintiff's Counsel

LBL is currently defending a big box store in an alleged bedbug infestation case. During the course of litigation, Plaintiff’s counsel cancelled three properly-noticed depositions of his client. Upon cancelling the third...more

Fifth Circuit: Diversity Jurisdiction Determined By Amount Sought In Arbitration, Not Amount Of Award

In a recent interlocutory appeal of a matter involving an arbitration of a claim for $80 million, but in which only $10,000 was awarded, the Fifth Circuit held that the amount in controversy for purposes of establishing...more

California Appeals Court Provides Guidance on the Use of Electronic Signatures by Employees

In many companies, new employees sign key documents and policies—including arbitration agreements—with the use of electronic signatures. There has been a growing trend in litigation brought by former employees to challenge...more

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