Lima LS plc v. PHL Variable Insurance Company et al

Filing 135

RULING/ORDER RE: May 7, 2014, CONFERENCE. See Ruling Attached. The next case management conference will be held on June 16, 2014 at 10:30AM. Signed by Judge Holly B. Fitzsimmons on 5/15/14.(Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LIMA LS PLC
v.
PHL VARIABLE INSURANCE
COMPANY, ET AL

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: CIV. NO. 3:12CV1122(WWE)
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RULING/ORDER RE: MAY 7, 2014, CONFERENCE
This ruling and order memorializes the Court’s rulings made
during a case management/discovery conference held on May 7,
2014, and sets a schedule for the exchange of information.
STANDARD
Fed. R. Civ. P. 26(a)(1): Initial Disclosures

Individuals
Rule 26(a)(1) requires that, at the outset of a civil
lawsuit, parties must disclose the name of “each individual . . .
that the disclosing party may use to support its claims or
defenses[.]” Fed. R. Civ. P. 26(a)(1)(A)(i). “The disclosing
party should . . . provide identifying information for all
persons it intends to use in the presentation of its case, at
trial or pretrial, even those whose information is limited

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exclusively to uncontroverted or background facts.” 6 Moore’s
Federal Practice, §26.22[4][a] [3d Ed. 2012].
Documents
The Rule also mandates that a party disclose documents that
may be used “to support its claims or defenses.” Fed. R. Civ. P.
26(a)(1)(A)(ii). “Each party must produce or describe by category
and location only those documents, electronically stored
information, and tangible things in its possession, custody, or
control that the party anticipates it will use to support its
claims or defenses.” 6 Moore’s Federal Practice, at §26.22[4][b].
Damages
In addition, “a party seeking damages must automatically
provide to the other parties . . . a computation of each category
of damages claimed by the disclosing party” and must “make
available for inspection and copying as under Rule 34 the
documents or other evidentiary material . . . on which each
computation is based.”1

Fed. R. Civ. P. 26(a)(1)(A)(iii); see

Design Strategy, Inc. v. Davis 469 F.3d 284, 295 (2d Cir. 2006).
“This particular rule does not merely require a plaintiff to
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Fed. R. Civ. P. 26(a)(1)(A)(iii) states,
a computation of each category of damages claimed
by the disclosing party-who must also make
available for inspection and copying as under Rule
34 the documents or other evidentiary material,
unless privileged or protected from disclosure, on
which each computation is based, including
materials bearing on the nature and extent of the
injuries suffered.
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describe its damages in general terms, such as ‘compensatory,’
but—as best as the party is able at an early stage in the case—to
provide a ‘computation’ of each category of damages, and to
produce the documents on which that computation is based.”
Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v.
Coventry First LLC, 280 F.R.D. 147, 159 (S.D.N.Y. 2012) (citing
Fed. R. Civ. P. 26(a)(1)(A)(iii); Haber v. ASN 50th Street, LLC,
272 F.R.D. 377, 380 (S.D.N.Y. 2011) (holding that Rule
26(a)(1)(A)(iii) entitled defendants to “discovery regarding
Plaintiff's claim for $6 million in damages and his calculation
of this amount” and directing Plaintiff to “itemiz[e] each
category of damages alleged in the amended complaint” and
“produc[e] responsive documents” regarding such damages)).
“Failure to provide damage computation documents may result in
exclusion of damage calculation evidence or expert testimony
regarding damage calculations at trial.” 6 Moore’s Federal
Practice, §26.22[4][c][i]; see

Ritchie Risk-Linked Strategies

Trading (Ireland), Ltd., 280 F.R.D. at 159-61. “[T]o fulfill the
initial disclosure requirement, a party must provide a
computation supported by documents. Mere production of
undifferentiated financial document without explanation is not
sufficient to fulfill the mandatory initial disclosure
requirement.” 6 Moore’s Federal Practice, §26.22[4][c][i] (citing
Gould Paper Corp. v. Madisen Corp., 614 F. Supp. 2d 485, 490
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(S.D.N.Y. 2009) (defendants who produced 629 pages of documents,
without explanation or “computation of each category of damages
claimed,” were precluded from presenting counterclaim for damages
in a breach of contract action)).
The parties will supplement their initial disclosure by May
30, 2014. This Rule 26(a)(1)(A) disclosure requirement is the
functional equivalent of standing court-ordered interrogatories.2
“A party is not excused from making its disclosures because it
has not fully investigated the case or because it challenges the
sufficiency of another party’s disclosures or because another
party has not made its disclosures.” Fed. R. Civ. P. 26(a)(1)(E).
The initial disclosure obligation is also subject to a duty
to supplement, under Rule 26(e)(1).
Fed. R. Civ. P. 26(e)(1): Ongoing Duty to Supplement Discovery
Pursuant to Fed. R. Civ. P. 26(e)(1)(A), parties must
supplement their initial disclosures as well as responses to
interrogatories and requests for production of documents “in a
timely manner if the party learns that in some material respect
the disclosure or response is incorrect and incomplete.”

“The

duty to supplement and correct disclosures and responses is a
continuing duty and no motion to compel further supplementation
The Advisory Committee Notes to the 1993 Amendments to Rule
26(a)(1) state, “[a]s the functional equivalent of court-ordered
interrogatories, this paragraph requires early disclosure,
without need for any request, of four types of information that
have been customarily secured early in litigation through formal
discovery.”
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is required.” 6 Moore’s Federal Practice, §26.131[3] [3d Ed.
2012]. This duty is not only triggered by a court order but
“whenever a party learns that its prior disclosures are in some
material respect incomplete or incorrect.”

6 Moore’s Federal

Practice, at §26.13[3]; Fed. R. Civ. P. 26(e)(1)(A) and (B). The
parties are encouraged to adhere to the duty set forth in Rule
26(e)(1)(A), “with special promptness as the trial date
approaches” without the Court’s further intervention. 6 Moore’s
Federal Practice, at §26.13[3]; see

Ritchie Risk-Linked

Strategies Trading (Ireland), Ltd., 280 F.R.D. at 161 (Making a
supplemental disclosure nearly a year after the close of fact
discovery is not “timely,” by any definition.”).
May 7, 2014, Conference
Search Terms
The parties have exchanged proposed search term lists and
represent that further time to discuss the proposals may result
in an agreement or the narrowing of their dispute. If this issue
is unresolved by the next conference, the parties will attach
their proposed search terms to the meeting agenda.
Custodians
The parties reached an agreement regarding their custodian
lists at the May 7, 2014, conference.

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Date Range
Plaintiff: The ESI search date range is January 1, 2004
through December 31, 2013, with the exclusion of documents
generated to or from counsel after the filing of this lawsuit on
August 2, 2012, and documents regarding the valuation of the
policies in support of the damages claim, for which the plaintiff
has an ongoing obligation to supplement pursuant to Fed. R. Civ.
P. 26(e)(1)(A).
Defendants: Plaintiff agrees to search Fortress documents
beginning in January 2008, using certain search terms identified
at the conference, such as stranger-owned life insurance
(“STOLI”), and certain search terms regarding life settlement
issues.
Defendants will meet and confer with plaintiff to identify
which search terms will be run after January 2008, and which
terms will be run after January 2010.
Redaction Protocol
The Court adopts the defendants’ proposed amendment to the
February 20, 2014, Stipulated Protective Order to encourage a
robust meet and confer over redacted materials. The Court will
revisit this issue if this approach does not have the desired
effect of encouraging a fruitful dialogue and narrowing the
objections to the redacted documents at issue.
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Amendment to the February 20, 2014, Stipulated Protective Order
The

Court

hereby

amends

the

Stipulated

Protective

Order

("Protective Order") entered on February 20, 2014 (Doc. #123) to
include the following provision:
Lima claims an interest in certain life insurance policies
(the “Policies”) issued by PHL Variable Insurance Company or
Phoenix Life Insurance Company.

The owner of the Policies, U.S.

Bank, N.A., as securities intermediary, has authorized disclosure
of personal information of insureds, former owners and former
trustees of these Policies, provided such disclosure is made
under the “Confidential” designation provided in this Order.

As

such, except as set forth herein, the Court authorizes the
parties to produce responsive documents with respect to the
Policies that contain medical, financial or personal identifying
information regarding the insureds, former owners and former
trustees, without redacting same, provided such documents are
designated “Confidential” or “Confidential—Outside Counsel Only”
under this Order.

Nothing herein shall preclude any party from

invoking any applicable privilege or other basis for redaction in
a manner consistent with the terms of this Order or any other
order of the Court.

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Plaintiff’s Discovery
First Request for Production No. 3: Defendants agree to provide
this information, subject to agreement on search terms.
First Requests for Production Nos. 4(b)-(d); 15 (b)-(c): The
parties agree to meet and confer.
First Requests for Production Nos. 21 (a)-(c): Defendants agreed
to provide this information.
First Request for Production No. 33(b): Defendants agreed to
provide this information.
First Request for Production No. 34: Defendants agreed to
provide this information.
First Request for Production No. 46(d): Defendants agreed to
provide this information.
First Request for Production No. 48: This request is withdrawn
as drafted in light of the representation by defendants that it
does not maintain the information in the form requested by
plaintiff. Counsel will confer with plaintiff. Upon renewal,
plaintiff will limit the request to policies of a certain value
range, without prejudice to seeking further information from
defendants after review of the production of policy information
as maintained by defendants.
First Request for Production No. 58:
request at the conference.

The Court denied this

First Request for Production No. 56: Defendants’ counsel will
inquire whether there was a committee formed to address the
secondary markets.
First Requests for Production Nos. 60-61:
meet and confer.

The parties agree to

First Requests for Production No. 63: The ESI search date range
is January 1, 2004 through December 31, 2013, with the exclusion
of documents generated to or from counsel after the filing of
this lawsuit on August 2, 2012; and documents regarding the
valuation of the policies which plaintiff will use in support of
the damages claim. The parties have an ongoing obligation to
supplement their responses and production, pursuant to Fed. R.
Civ. P. 26(e)(1)(A).

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Second Requests for Production Nos. 11, 22-23: With regard to
Request No. 11-defendant will rerun the search with the new date
ranges and custodial list and discuss the results with plaintiff.
With regard to Requests Nos. 22-23-defendants will state in
writing and under oath that they have provided all the documents
responsive to these requests. Fed. R. Civ. P. 33(3).
Defendants’ Discovery
Interrogatories Nos. 7-12; and 19: Plaintiff will identify the
individuals referenced in the Amended Complaint whose statements
are cited and/or quoted.
Interrogatories Nos. 25 and 31: The parties agree to meet and
confer regarding these interrogatories.
Interrogatories Nos. 1-5: Plaintiff agreed to respond to the
interrogatories at the May 7 Conference.
Interrogatories Nos. 6, 13-18, 20, 22-24 and 26-30: The parties
agree to will meet and confer regarding these interrogatories.
Requests for Production Nos. 1, 6-8, 19-24, 27-29, 32-34, 38,39, 51-52, 54-57, 59-60, 63-64, 67-69, 73-74, 78, 80, 82-83, 86,
88, 90, 93-94, 96, 98, 100, 103, 106, 108, 115-22, 126, 132,
135-38, 146, 154, 180, 182-85, 193, 222, 227-28 and 230: The
parties have exchanged proposed search term lists and represent
that further time to discuss the search terms may result in an
agreement or the narrowing of their dispute. If this issue is
unresolved by the next conference, the parties will attach their
proposed search terms to the meeting agenda.
Requests for Production Nos. 23-32 and 217-18: Plaintiff will
provide ESI search results for H.M. Ruby Fund and D.B. Zwirn.
This ruling is without prejudice to defendants’ renewing this
request after review of the ESI production. Defendants maintain
that this is a targeted search and perhaps not amenable to an ESI
search. The parties are encouraged to discuss this request
further.
Request for Production No. 58: The parties will brief this
issue prior to the next case management meeting.

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Requests for Production Nos. 144-45 and 139: The parties agree
to meet and confer and report back at the next conference.
Request for Production No. 133:
requested documents.

Plaintiff will provide the

Requests for Production Nos. 185-93:
Defendants agreed to
review the requests, and perhaps amend the requests.
Scheduling Order
Discovery is set to close on May 15, 2015, and dispositive
motions are due by July 15, 2015. [Doc. #126].
Responses to the discovery ordered during the May 7, 2014,
conference, and in this ruling and order, are due on or before
May 30, 2014. Defendants will provide the de-duplicated search
information by May 30, 2014. The parties will contact the Court
if any issues arise that may delay the progress of this case,
before these deadlines expire.
June 16, 2014, Conference
The next case management/discovery conference will be held
on June 16, 2014 at 10:30 AM. The parties will provide a joint
agenda by the close of business June 11, 2014. The agenda may be
submitted to the law clerk at: [e-mail]
This is not a recommended ruling.

This is a discovery

ruling and order which is reviewable pursuant to the "clearly
erroneous" statutory standard of review.

28 U.S.C. '636

(b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and 72(a); and Rule 2 of
the Local Rules for United States Magistrate Judges.

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As such, it

is an order of the Court unless reversed or modified by the
district judge upon motion timely made.

ENTERED at Bridgeport this 15th day of May 2014.

________/s/___________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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