William Jeffrey Burnett et al v. Conseco Life Insurance Company et al

Filing 37

ORDER Regarding Production of Documents and Non-Waiver of Privileges signed by Magistrate Judge Elizabeth D. Laporte. (shyS, COURT STAFF) (Filed on 3/9/2015)

Stephen A. Weisbrod (pro hac vice)
[e-mail]
August J. Matteis, Jr. (pro hac vice)
[e-mail]
WEISBROD MATTEIS & COPLEY PLLC
1200 New Hampshire Ave. NW, Suite 600
Washington, DC 20036.
Telephone: [phone]

Carl C. Scherz (pro hac vice)
[e-mail]
James H. Bilton (pro hac vice)
[e-mail]
LOCKE LORD LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75200
Telephone: [phone]

Attorneys for Plaintiffs

Regina J. McClendon (SBN 184669)
[e-mail]
Stephanie A. Chambers-Wraight (SBN 261025)
[e-mail]
LOCKE LORD LLP
44 Montgomery Street, Suite 4100
San Francisco, CA 94104
Telephone: [phone]
Fax: [phone]
Attorneys for Non-Party
Wilton Reassurance Company
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

IN RE CONSECO LIFE INSURANCE COMPANY )
)
LIFETREND INSURANCE SALES AND
)
MARKETING LITIGATION,
)
)
)
)
WILLIAM JEFFREY BURNETT and JOE H.
)
)
CAMP,
)
)
Plaintiffs,
)
)
v.
)
)
CONSECO LIFE INSURANCE COMPANY, INC., )
)
an Indiana corporation,
)
)
Defendant.
)

CASE NO. 3:10-MD-2124 SI (EDL)

Case No. 3:12-cv-05906 SI (EDL)
________
(Proposed) ORDER REGARDING
PRODUCTION OF DOCUMENTS
AND NON-WAIVER OF
PRIVILEGES

WHEREAS, Plaintiffs served a non-party Subpoena to Produce Documents on Non-Party
Wilton Reassurance Company (“Wilton Re”) seeking production of documents at Wilton Re’s
offices in Wilton, Connecticut (the “Subpoena,” Docket No. 611-2).
WHEREAS, Wilton Re timely served objections and responses to each of Plaintiffs’ requests
(the “Objections to Subpoena,” Docket No. 611-3).
WHEREAS, Plaintiffs filed their Motion to Compel Production of Documents Pursuant to
Subpoena Served on Wilton Reassurance Company (the “Motion to Compel”) (Docket No. 611)
and, thereafter, Wilton Re filed its Opposition to Plaintiff’s Motion to Compel (Docket No. 617) and
Plaintiffs filed a Reply in Support of Their Motion to Compel (Docket No. 624).
WHEREAS, a hearing was held and the Court entered an Order addressing Plaintiffs’ Motion
to Compel (“Order on Motion to Compel,” Docket No. 633), which among other things ordered
Plaintiffs and Wilton Re to confer regarding electronic searches.
WHEREAS, during the discovery process subsequent to the Order on Motion to Compel,
Wilton Re has conducted searches of e-mails and provided Plaintiffs with a privilege log(s) and the
parties have conferred regarding a possible resolution.
WHEREAS, Plaintiffs contend that each of the documents listed in Wilton Re’s log(s) is not
privileged at all or are not privileged in part.
WHEREAS, to address mutual concerns by the parties, to assist in the resolution of discovery
disputes, and to avoid additional expenditure of the judicial resources of this Court, Plaintiffs and
Wilton Re have moved for the entry of this Order Regarding Production of Documents and NonWaiver of Privileges, which provides for and permits the production of documents or redacted
portions of documents by Wilton Re, Conseco Life Insurance Company (“CLIC”), CNO Financial
Group, Inc., and CNO Services, LLC, expressly subject to the protections afforded herein and by
Federal Rule of Evidence 502.
It is, therefore, ORDERED that Wilton Re, CLIC, CNO Financial Group, Inc., and CNO
Services, LLC may produce to Plaintiffs complete copies of documents, or redacted copies of
documents, referenced in their privilege logs in order to resolve discovery disputes and advance
discovery. It is further ORDERED that any production to Plaintiffs on or after March 3, 2015,
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whether partial or complete, by CNO Financial Group, Inc., CNO Services, LLC, CLIC and/or
Wilton Re of (a) the documents referenced in Wilton Re’s privilege log(s), including but not limited
to

WRPRIV000001-WRPRIV000010,

WRPRIV000011-WRPRIV000052,

WRPRIV000055-

WRPRIV000135, WRPRIV000141-WRPRIV260 and WRPRIV000262-WRPRIV000336, and (b)
any other documents or communications exchanged between Wilton Re, on the one hand, and CNO
Financial Group, Inc., CNO Services, LLC (together, the “CNO Entities”) and/or CLIC, or the
counsel or representatives for any of those entities, pursuant to, in anticipation of, or otherwise in
any way related to the Stock Purchase Agreement of 2014 (the “Stock Purchase Agreement”), its
schedules and attachments, and/or drafts of the aforementioned items (together, the “Documents”),
shall not be construed as a waiver of, or used as the basis for any claim or allegation or argument by
Plaintiffs or anyone else that Wilton Re, CLIC, CNO Financial Group, Inc., and/or the CNO Entities
waived the attorney-client privilege, the work product privilege, the joint defense privilege, the
common interest doctrine or the community of interest rule, or other privilege. For the avoidance of
any doubt, this includes and prohibits any claim by Plaintiffs or others that the production of
documents by Wilton Re or CLIC completely or partially waive any privilege or protection, with
respect to or arising from any information referenced or otherwise contained within the documents
produced.

For the further avoidance of doubt, this protection against waiver applies to this

proceeding as well as any other Federal or State proceedings.
It is further ORDERED that Wilton Re, CLIC and the CNO Entities may reserve all rights,
arguments and defenses as to the privileged nature of any documents produced in accordance with
this Order and that, except as set forth above, Plaintiffs may reserve all rights, arguments and
defenses as to the privileged nature of any documents produced in accordance with this Order, and,
specifically, that Plaintiffs reserve, and do not waive, all rights to assert that any applicable privilege
or protection has been waived for reasons other than the production of documents in accordance with
this Order. Except as set forth in the preceding paragraphs of this Order, the Court expresses no
view at this time on the rights, arguments and defenses reserved in this paragraph by the Parties.

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Dated: ______________, 2015
March 9
_____________________________________
HON. ELIZABETH D. LAPORTE
UNITED STATES MAGISTRATE JUDGE

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