Lima LS plc v. PHL Variable Insurance Company et al

Filing 203

RULING denying 181 Motion to Compel Responses to Interrogatory Nos. 3 and 4 and Related Document Production. Signed by Judge Holly B. Fitzsimmons on 3/16/2015. (Katz, Samantha)

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 ON PLAINTIFF’S MOTION TO COMPEL [Doc. #181]
Plaintiff seeks to compel responses to First Set of
Interrogatories 3 and 4 and Third Request for the Production of
Documents.

Phoenix stands by its responses to these

interrogatories.
1. First Set of Interrogatories Nos. 3 & 4
Lima‟s First Set of Interrogatories Nos. 3

and 4, seek the

following.
Interrogatory No. 3:
Identify every PAUL [Phoenix Accumulator Universal
Life] policy that Phoenix has identified as an actual
or potential STOLI policy and, with respect to each
such policy, provide: (a) the policy number, face
amount, issue date, and age of insured at issuance;
(b) the underwriter(s) who reviewed and/or approved
the policy for issuance; (c) the date on which Phoenix
determined the policy was an actual or potential STOLI
policy; and (d) all actions taken with respect to the
policy once such determination was made.
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Defendants’ Objection: Defendants incorporate the
General Objections as [] set forth in full herein.
Defendants object to this Interrogatory as seeking
information protected by the attorney-client
privilege, work product doctrine or both. Defendants
further object to this Interrogatory as overly broad
and unduly burdensome, including because it is
unlimited in scope and/or time frame. Defendants
further object that this Interrogatory seeks
information that is neither relevant nor reasonably
calculated to lead to the discovery of admissible
evidence. Defendants further object that the phrase
“actual or potential STOLI policy” is vague and
ambiguous.
Defendant contends that plaintiff‟s premise that the LPT
[Life Policy Transfer] spreadsheet is a secret list of STOLI
policies is a false premise. “Phoenix simply did not maintain a
list of policies for potential rescission.” [Doc. #191 at 1].
Phoenix states that it “did review policies from time to
time and brought lawsuits when evidence showed that policies
violated the law; information regarding those policies is public
record.” Id. However, “to the extent that Lima seeks information
about policies counsel reviewed and yet opted to not file suit,
such information is clearly protected by the attorney-client
privilege and work product doctrine.” Id. The Court agrees.
Lima responds that it “seeks only objective factual
information, such as policy numbers, dates and names,” . . .
“the underlying facts as to these policies” which are not
“‟immunized from discovery merely because they were gathered for
use in a pending or anticipated lawsuit.‟”
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[Doc. #200 (emphasis

in original) (quoting Primetime 24 Joint Venture v. Echostar
Communications Corp., No. 98CIv. 6738, 2000 WL 97680, at *2
(S.D.N.Y. Jan. 28, 2000))]. Phoenix argues that “Interrogatory
No. 3 does not seek only „objective factual information;”
rather, disclosure of “the characteristics of policies that
counsel reviewed, and whether Phoenix filed suit, would reveal
how Phoenix‟s attorneys analyze insurable interest laws in
various jurisdictions.” [Doc. #191 at 11-12 (citing U.S. v.
Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) (applying work
product doctrine to an attorney‟s mental impressions with
respect to transactions that were actually ultimately litigated,
and to documents that “can fairly be said to have been prepared
or obtained because of the prospect of litigation.”))]. Phoenix
contends that Interrogatory 3 impermissibly seeks privileged
information to the extent it seeks a list of policies “that
Phoenix‟s Legal Department or outside counsel reviewed, even
where it did not ultimately file a lawsuit that „alleged‟ or
„claimed‟ STOLI.” [Doc. #191 at 9 (emphasis in original)].
Lima‟s definition of the term “STOLI,” defendant argues,
implicates a legal review and on that basis the request to
compel a response must be denied.1

Defendant‟s internal

Lima defined the term “STOLI” in its First Set of
Interrogatories as follows,
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“STOLI” or “IOLI” policies shall mean and refer
to any alleged or actual “stranger-originated” or
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assessments of whether a policy violates “the law of any state”
is privileged. Counsel are encouraged to discuss this further.
It is unclear whether a document exists that was prepared in the
ordinary course of business that may contain the information
sought in Interrogatory No. 3, without triggering a privilege
claim.

Lima has not asked this question although it states,

“Interrogatory No. 3 specifically asks for policies of those
types that „Phoenix has identified,‟ meaning that someone at
Phoenix has identified them in some manner as actual or
potential „STOLI‟ policies, such as by placing them on a list of
potential „STOLI‟ policies or sending them for what Phoenix
calls a „Quality Review.‟” [Doc. #200 at 8 (emphasis in
original)]. There may be an interrogatory that will provide Lima
with the information it seeks without violating the attorneyclient privilege or work product doctrine, however, in its
current form, the Court will not compel a response to
Interrogatory No. 3.
Phoenix further objects that the phrase “actual or
potential STOLI policy” is vague and ambiguous.

Defendant

“investor-originated” life insurance policies;
life insurance policies that were actually or
allegedly originated without an insurable
interest at the time of the issuance; or policies
that are otherwise claimed to be, or actually
defined as, “STOLI” or “IOLI” under the law of
any state.
[Doc. #191 at 8-9].
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states it has already identified the policies Phoenix has
challenged in Court in its response to Interrogatory No. 1 and
Phoenix has offered to provide a list of its rescission actions.
[Doc. #191 at 9].
To the extent that Lima seeks information regarding nonLima policies, the request is denied. This ruling is without
prejudice to plaintiff refiling an amended interrogatory after
defendants have produced the discovery related to Lima policies
and on a showing that some further but limited targeted
discovery is warranted.
Plaintiff‟s motion to compel a response to Interrogatory
No. 3 is DENIED on this record.
Interrogatory No. 4:
With respect to the LPT Spreadsheet, identify: (a) the
meaning of “LPT”; (b) who was involved in the creation
of the LPT Spreadsheet, when it was created, and the
reasons why it was created; (c) the criteria for
placing, updating or removing a policy on the LPT
Spreadsheet; and (d) all persons involved in
maintaining, reviewing or using the LPT Spreadsheet.”
Defendants’ Objection: Defendants incorporate the
General Objections as [] set forth in full herein.
Defendants object that discovery regarding the LPT
Spreadsheet is neither relevant nor reasonably
calculated to lead to discovery of admissible
evidence. Defendants also object that the phrase “the
meaning of LPT” is vague and ambiguous. Defendants
further object that the request for the identity of
“all persons involved in maintaining, reviewing or
using the LPT Spreadsheet” is overly broad to the
extent it seeks identification of administrative

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employees who had no substantive involvement with the
document.
Defendants’ Second Supplemental Objections and
Response: Subject to and without waiving these
objections, Defendants respond as follows: “LPT”
refers to the file-name initially given to the
spreadsheet. To the best knowledge available, “LPT”
stands for “life policy transfer.” The spreadsheet
was created during the first quarter of 2008. Neal
Regels and Diane Nemphos were involved in its
creation. The spreadsheet was created to log policy
ownership changes. Non-familial ownership transactions
involving policies with $1 million or more face amount
and insured age 70 or up were logged into the
spreadsheet by Owen McCabe, Heather Sammon, Colleen
Kirsch, and Karen White. At times, other
administrative employees and other personnel populated
data in the spreadsheet, including Susan McDonald,
Laura Carbonne, Jessica Henesy and Christine Bush,
Diane Nemphos, Gina O‟Connell, Neal Regels, Tom
McCabe, and Richard Elomaa used the spreadsheet.
Phoenix stated it has “responded in full to Interrogatory
4, providing all information requested about the “LPT
Spreadsheet,” including the reason it was created-to track
ownership transfers.”

Defendant maintains that this

interrogatory was properly verified and the response is complete
and accurate. [Doc. #187 at 1, 7].
Lima insists that the response is not complete because
“Phoenix needs to explain the reasons why it was interested in
tracking changes in policy ownership as to the policies included
on the LPT Spreadsheet.” [Doc. #181 at 19-21 (emphasis added)].
Phoenix states it has explained “why” in its response: “The
spreadsheet was created to log policy ownership changes. Nonfamilial ownership transactions involving policies with a $1
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million or more face amount and insured age 70 or up were logged
into the spreadsheet . . . .” [Doc. 191 at 14 (quoting
Defendants‟ Second Supplemental Objections and Response].
Although Lima insists that defendant‟s sworn response to
Interrogatory No. 4 is not responsive, Phoenix states that the
response is “complete, identifies the information called for and
was verified by a duly authorized Phoenix representative and
“[d]espite the wild conjecture on Lima‟s part, the LPT
Spreadsheet is unequivocally not a litigation planning tool.”
[Doc. #191 at 14 (emphasis in original)].

Finally, Phoenix

correctly points out that it has “no obligation to disprove
Lima‟s conjectures by supplementing an already complete
response.” [Doc. #191 at 15].
Accordingly, plaintiff‟s Motion to Compel a supplemental
response to Interrogatory No. 4 is DENIED.
2. Third Requests for Production
Plaintiff also served an accompanying Third Request for
Production of Documents, seeking all documents “referenced in,
used in preparing or otherwise relating to the subject matter
of” Phoenix‟s responses to the interrogatories.
Defendant states that this issue is moot. Phoenix indicated
at the December 2, 2014 status conference that it would amend
its responses to Lima‟s Third Request for Production. [Doc. #191
at 15].
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Accordingly, plaintiff‟s Motion to Compel a response to the
Third Requests for Production is DENIED without prejudice.
Scheduling Order
Discovery is set to close on May 15, 2015, and dispositive
motions are due by July 15, 2015. [Doc. #126].
The parties will contact the Court if any issues arise that
may delay the progress of this case, before these deadlines
expire.
March 16, 2015, Conference
The next case management/discovery conference will be held
on March 16, 2015 at 11:00 AM. The parties will provide a joint
agenda five days before the conference. The agenda may be
submitted to the law clerk at: [e-mail]
CONCLUSION
For the reasons stated, plaintiff‟s Motion to Compel [Doc.
#181]

is DENIED and/or DENIED as moot.

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.

As such,

it is an order of the Court unless reversed or modified by the

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district judge upon motion timely made.
ENTERED at Bridgeport this 16th day of March 2015.

____/s/______________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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