Kardonick v. JP Morgan Chase & Co. et al

Filing 464

REPLY to Response to Motion re 456 Defendant's MOTION for Order to Show Cause and Supporting Memorandum of Law filed by Chase Bank USA, N.A.. (Attachments: # 1 Exhibit Declaration of R. Wick, # 2 Exhibit Responses & Objections to Request for Production, # 3 Exhibit Responses & Objections to Interrogatories, # 4 Exhibit Correspondence to counsel, # 5 Exhibit Correspondence to counsel, # 6 Exhibit E-mail between counsel, # 7 Exhibit Transcript of hearing)(Campbell, Dennis)

IN THE CIRCUIT COURT OF MASON COU
NTY, WEST VIRGINIA
STATE OF WEST VIRGiNIA cx rd.
DARRELL V. MCGRAW, JR., ATTORNEY
GENERAL,
Case No. 1 1-C-094-N

Plaintiff,

Hon. David Nibert

V.

JPMORGAN CHASE & CO. and CHASE
BANK USA, N.A.,
Defendants.

RESPONSES ANt) OBJECTIONS TO
PLAINTIFF’S FIRST SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS
TO JPMORGAN CHASE & CO. AND CHASE
BANK USA. N.A.
Pursuant to Rule 34 of the West Virginia Rules
of Civil Procedure, Defendants
JPMorgan Chase & Co. (“JPMorgan”) and Chase
Bank USA, N.A. (“Chase”) submit the
following responses and objections to Plaintiff’s First
Set of Requests For Production of
Documents to JPMorgan and Chase (the “Requests”).
The responses and objections contained herein are
made without in any way
waiving or intending to waive, but on the contrary reser
ving and intending to reserve, the right at
any time to revise, supplement, correct, or add to these
objections and responses, and to revise,
supplement, correct, or add to any production of inform
ation.
SPECIFIC RESPONSES AND

OBJEcTIoNs

All responses provided below, and all documents produced
in response to these
document requests. are stated and produced subject to and
without waiving the General
Objections set forth herein, which are specifically incorpora
ted in each response below.
JPMorgan and Chase further respond and object to the Requ
ests as follows.

EXHIBIT
C0NflDE”’1AL

REQUEST FOR PRODUCTION NO. 1:
All Documents identified in, referenced in, listed in,
or relied upon in preparing Your responses
to Plaintiff’s First Set of Interrogatories to JPMorgan
Chase & Co. and Chase Bank USA, N.A.
that are not encompassed by a more specific request below.
RESPONSE:
Defendants ftirther object to this Request on the ground
that it is premature.
Defendants have filed a motion to dismiss the Attorney Genera
l’s claims, which if granted would
eliminate the need for or substantially narrow the scope
of discovery. Chase will supplement this
response if appropriate after the Court rules on Defendants’
pending motion.
Defendants further object to this Request on the ground that
it seeks materials
protected by privileges, including without limitation attorne
y-client privilege and work product
immunity.

REQUEST FOR PRODUCTION NO.. 2:

All Documents that You intend to rely upon to prove Your
defense(s) in this matter, or that You
might use for impeachment purposes, that are not encom
passed by a more specific request
below.
RESPONSE:
Defendants further object to this Request on the ground that
it is premature.
Defendants have filed a motion to dismiss the Attorney Genera
l’s claims, which if granted would
eliminate the need for or substantially narrow the scope of discov
ery. Chase will supplement this
response if appropriate after the Court rules on Defendants’ pendin
g motion.
Defendants further object to this Request on the ground that
it seeks materials
protected by privileges, including without limitation attorney-clien
t privilege and work product
immunity.

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Subject to and without waiving their objections,
Defendants will produce
documents they intend to rely upon to prove their
defenses in this matter at an appropriate time.
Defendants further refer to the Stipulation and Agreem
ent of Class Action Settlement and the
Final Judgment and Order of Dismissal entered in
Kardonick, et aL v. JPMorgan Chase & Co.,
eta!., No. lO-cv-23235 (S.D. Fla.) (the “Kardani
ck litigation”).

REQUEST FOR PRODUCTION NO.3:

All statements made by any Person related to the
subject matter of this litigation. For the
purposes of this request, a statement is (a) a written
statement signed or otherwise adopted or
approved by the Person making it; and/or (b) a stenog
raphic, mechanical, electrical or other
recording, or transcription thereof; which is a substantially
verbatim recital of an oral statement
by the Person making it and contemporaneously recorded.
RESPONSE:
Defendants further object to this Request on the
ground that it is premature.
Defendants have filed a motion to dismiss the Attorney
General’s claims, which if granted would
eliminate the need for or substantially narrow the scope
of discovery. Chase will supplement this
response if appropriate after the Court rules on Defend
ants’ pending motion.
Defendants further object to this Request on the ground
that it seeks materials

protected by privileges, including without limitation attom
eyclient privilege and work product
immunity.
Subject to and without waiving their objections, Defendants
will produce copies
of declarations executed by Marc Fink in the Kardoniclr litigation
and in this litigation.

REQUEST FOR PRODUCTION NO.4:
All Documents provided to experts or investigators retained
by You in connection with this
litigation.
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RESPONSE:
Defendants further object to this Request on the ground that
it is premature.
Defendants have not yet retained experts or investigators
in connection with this litigation. In
addition, Defendants have filed a motion to dismiss the Attorn
ey General’s claims, which if
granted would eliminate the need for or substantially narrow the
scope of discovery. Chase will
supplement this response if and when appropriate after the Court
rules on Defendants’ pending
motion.
Defendants further object to this Request on the ground that it seeks
materials
protected by privileges, including without limitation attorney-clien
t privilege and work product
imm unity.

REOUEST FOR PRODUCTION NO.5:
All Documents, compilations, electronically stored information,
or other information which
provide the following information (unless otherwise specified, please
provide documents that set
forth this information on an annual basis for each year that such
data is available from 2000
through 2012) for all of Your Ancillary Services, including but not limited
to Your Payment
Protection Plans:
a.
the amount of revenue You received each year from West Virgin
ia
consumers for the sale of each of Your Ancillary Services to West Virgin consum
ia
ers;
b.
the amount of profit You received each year as a result of sales of each of
Your Ancillary Services to West Virginia consumers;
c.
the number of West Virginia consumers who paid for each of Your
Ancillary Services during each year;
d.
the number of West Virginia consumers who are currently enrolled in each
of Your Ancillary Services;
(1)

the source of the consumer’s income, if the
consumer’s income was from a source other than
gainful employment;

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(2)

whether the consumer made a claim under the plan;

(3)

if a consumer’s claim was rejected, the reason it
was rejected; and

(4)

the total amount each consumer has paid for the
plan.

e.
the number of West Virginia consumers who were over the age of 65
at
the time they began paying for Payment Protection;
f.
the number of West Virginia consumers over the age of 5 currently
paying for Payment Protection;
the number of West Virginia consumers who accepted Payment Protection
g.
but were rejected by JPMorgan Chase & Co. due to age;
h.
the number of West Virginia consumers who were unemployed at the time
they began paying for Payment Protection;
i.
the number of West Virginia consumers who are unemployed and are
currently paying for Payment Protection;
the number of West Virginia consumers who were disabled at the time
j.
they began paying for Payment Protection;
k.
the number of West Virginia consumers who are disabled and are
currently paying for Payment Protection;
1.
the number of West Virginia consumers who were self-employed at the
time they began paying for Payment Protection; and
in.
the number of West Virginia consumers who are self-employed and are
currently paying for Payment Protection.

RESPONSE:
Defendants further object to this Request on the ground that some of the
information requested can be more suitably obtained through interrogatories, and Defendants
refer the Attorney General to Defendants’ Responses and Objections to Plaintifis First Set of
Interrogatories to JPMorgan Chase & Co. and Chase Bank USA, N.A.

CONFOENTAL

Defendants further object that the Request seeks to
litigate claims that were
released in the Kardonick settlement and are subjec
t to the Kardonick injunction.
Defendants further object to this Request on the ground
that the specified time
period is overbroad. Any information produced by
Defendants in response to this Request will
be limited to the period from August 1, 2007 to the
present in light of limitations issues.
Defendants further object to this Request on the ground
that some of the requested
information does not exist within Defendants’ posses
sion, custody, or control. For example,
Chase does not maintain data that would enable
it to determine whether West Virginia
consumers were unemployed, disabled, or self-employed
either now or when they began paying
for payment protection.
Defendants further object to this Request on the ground
that it is premature.
Defendants have filed a motion to dismiss the Attorney Genera
l’s claims, which if granted would
eliminate the need for or substantially narrow the scope
of discovery. Chase will supplement this
response if appropriate after the Court rules on Defend
ants’ pending motion. Defendants further
object to this Request on the ground that it seeks materi
als protected by privileges, including
without limitation attorney-client privilege and work produc
t immunity.
Because the Complaint contains only minimal and conclusory
allegations about
products other than payment protection plans, Defendants
further object to producing any
information concerning such products.
Defendants further object to this Request on the ground that
the requests are
vague, ambiguous, overbroad, seek information not reason
ably calculated to lead to the
discovery of admissible evidence, are unreasonably burdensome,
and in some cases would
require an exhaustive manual, case-by-case review of each custom
er’s account.

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Defendants further object to this Request to the extent it seeks
information that
does not already exist in Defendants’ possession, custody, or
control in a readily retrievable
format. Defendants are not obligated to create documents that
do not already exist to produce
information in response to this Request.

REQUEST FOR PRODUCTION NO.6:

Provide documents sufficient to identifi:
a.

the price of each of the ancillary services;

b.

the provider of each of the ancillary services; and

c,

the period of time this product or service was available.

RESPONSE:
Subject to and without waiving Defendants’ objections, Chase
will produce
exemplars of the Terms and Conditions documents governing Chase’
s payment protection plans,
which contain information responsive to this Request. To the
extent that the Request seeks
additional documents, Defendants object on the ground that some
of the information requested
can be more suitably obtained through interrogatories, and Defend
ants refer the Attorney
General to Defendants’ Responses and Objections to Plaintiff’s
First Set of Interrogatories to
JPMorgan Chase & Co. and Chase Bank USA, N.A.
Because the Complaint ôontains only conc.lusory assertions of wrong
doing about
products other than payment protection plans, Defendants object to produc
ing any information
concerning such products.
Defendants further object to this Request on the ground that it is premat
ure.
Defendants have filed a motion to dismiss the Attorney General’s claims, which
if granted would

CON9DENT!AL

eliminate the need for or substantially narrow the scope
of discovery. Chase will supplement this
response if appropriate after the Court rules on Defendants’
pending motion.
Defendants further object that the Request is vague, ambig
uous, overbroad,
unduly burdensome, and seeks information not reasonably
calculated to lead to the discovery of
relevant, admissible evidence.

REQUEST FOR PRODUCTION NO.7:

Each written contract, agreement, Welcome Kit, or disclos
ure of terms and conditions regarding
the Payment Protection Plan or any other Ancillary Servic
es employed by JPMorgan Chase &
Co. when transacting business with any and all West Virgin
ia consumers.
RESPONSE:
Subject to and without waiving Defendants’ objections,
Chase will produce
exemplars of the Terms and Conditions and welcome kits
sent to new payment protection
enrollees. Defendants object to producing “each” requested
document on the ground that doing
so would be unreasonably burdensome. Construed literally,
the request purports to seek every
contract, agreement, welcome kit, or termsand-conditions docum
ent sent to every West Virginia
consumer.
Because the Complaint contains only minimal and conclusory
allegations
regarding products other than payment protection plans, Defend
ants object to producing any
information concerning such products.
Defendants further object to this Request on the ground that it is premat
ure.
Defendants have filed a motion to dismiss the Attorney General’s claims
, which if granted would
eliminate the need for or substantially narrow the scope of discovery. Chase will
supplement this
response if appropriate after the Court rules on Defendants’ pending motion
.

CONFtOENTIAL

Defendants further object that the Request is vague, ambig
uous, overly broad,
unduly burdensome, and seeks information that is not reason
ably calculated to lead to the
discovery of admissible, relevant evidence.

REQUEST FOR PRODUCTION NO.8:
All internal rules or guidelines governing, delimiting or definin
g the criteria for West Virginia
consumers who were or are eligible to enroll in Your Payment Protec
tion Plan(s).
RESPONSE:
Subject to and without waiving Defendants’ objections, Chase
states that in
general, cardholders whose accounts were in good standing
were eligible to enroll in payment
protection plans. To the extent that the Request seeks additional
information, Chase objects that
it is premature, vague, ambiguous, overly broad, unduly burden
some, and seeks information that
is not reasonably calculated to lead to the discovery of admissible, relevan
t evidence.

REQUEST FOR PRODUCTION NO.9:
All underwriting guidelines and/or risk assessment analyses used by
JPMorgan Chase & Co. in
relation to the Payment Protection Plan(s) sold to West Virginia consum
ers.
RESPONSE:
There are no responsive documents because JPMorgan had no involv
ement in
payment protection plans. By way of further response, Chase states that,
in general, cardholders
whose accounts were in good standing were eligible to enroll in payme
nt protection plans. To
the extent that the Request seeks additional information, Chase objects that
it is premature,
vague, ambiguous, overly broad, unduly burdensome, and seeks inform
ation that is not
reasonably calculated to lead to the discovery of admissible, relevant eviden
ce.

CONFDENflAL

REQUEST FOR PRODUCTION NO. 10:
A customer list of all West Virginia consumers who
did not sign and return a written contract or
agreement for Payment Protection but were charged
for Payment Protection at any time.
RESPONSE;
Chase refers to its response to Interrogatory No. 7. To
the extent the Request
seeks additional information, Defendants object that its
customer lists constitute confidential and
proprietary business information.
Defendants further object that the Request is premature
in light of the pending
motion to dismiss, vague, ambiguous, overbroad, unreas
onably burdensome, and not reasonably
calculated to lead to the discovery of relevant, admiss
ible evidence. Federal law does not require

Chase to obtain a written signature as a pre-requisite to
enrolling a customer in a payment
protection plan. In fact, Plaintiff acknowledged in its opposi
tion to Defendants’ pending motion
to dismiss that Defendants are entitled to enroll custom
ers in payment protection plans over the
telephone. In addition, determining which individuals
sent written correspondence to Chase
would require a manual, case-by-case review of individual
account records.
Defendants further object that the Request reflects an attemp
t to litigate claims
that were released in the Kardonick settlement and are subjec
t to the Kardonick injunction.

REQUEST FOR PRODUCTION NO. 11:
All documents, including customer lists, which indicate the
method by which West Virginia
consumers enrolled in Payment Protection (over the phone, via the interne
t, etc.).
RESPONSE:
Defendants further object to this Request on the ground that their
customer lists
constitute private, confidential, and proprietary information.

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10CONFIDENTIAL

Defendants further object to this Request on
the ground that it is overbroad,
unreasonably burdensome, and not reasonabl
y calculated to lead to the discovery of relevant,
admissible evidence. Determining how each
West Virginia consumer enrolled in a paym
ent
protection plan would require a manual review of
a large number of individual account records.
Defendants further object to this Request on
the ground that it is premature.
Defendants have filed a motion to dismiss the Atto
rney General’s claims, which if granted would
eliminate the need for or substantially narrow the
scope of discovery. Chase will supplement this
response if appropriate after the Court rules on Defe
ndants’ pending motion.

REQUEST FOR PRODUCTION NO. 12:
A copy of each Document which indicates or dem
onstrates a West Virginia consumer’s written
consent to be enrolled in and/or charged for Paym
ent Protection.
RESPONSE:
Chase refers to its response to interrogatory No.
7. To the extent the Request
seeks additional information, Defendants object
that it seeks confidential and private information
regarding Chase customers.
Defendants further object that the Request is prem
ature, vague, ambiguous,
duplicative of Request No. 10, overbroad, unre
asonably burdensome, and not reasonably
calculated to lead to the discovery of relevant, adm
issible evidence. Federal law does not require
Chase to obtain a written signature as a pre-requisite
to enrolling a customer in a payment
protection plan. in fact, Plaintiff acknowledged in its
opposition to Defendants’ pending motion
to dismiss that Defendants are entitled to enroll custo
mers in payment protection plans over the
telephone. In addition, determining which individua
ls sent written correspondence to Chase
would require a manual, account-by-account review of indiv
idual account records.
—11—
CONFIDENTiAL

REQUEST FOR PRODUCTION NO. 13:
All marketing or written advertising materials sent
to any West Virginia JPMorgan Chase & Co.
credit card holders via mail, e-mail or otherwise
regarding Your Ancillary Services, including
but not limited to Your Payment Protection Plan(s).
RESPONSE:
Defendants state that because there are no JPMorgan
credit card holders, there are
no documents responsive to this Request. To the extent
this Request seeks “marketing or written
advertising materials” sent to any Chase credit card
holder, subject to and without waiving
Defendants’ objections, Chase will produce exemplars
of its terms and conditions and welcome
kits. To the extent that the Request seeks additional docum
ents, Chase objects that the request is
premature given the pendency of a motion to dismis
s that may eliminate or narrow the need for
discovery.
Because the Complaint contains only minimal
and conclusory allegations
regarding products other than payment protection
plans, Defendants further object to producing
information concerning such products.
Defendants further object to this Request on the ground
that it is vague,
ambiguous, overbroad, unreasonably burdensome, and
not reasonably calculated to lead to the
discovery or relevant, admissible evidence.

REQUEST FOR PRODUCTION NO. 14:
A copy of all on-line advertising or marketing of Your Ancilla
ry Services, including but not
limited to Your Payment Protection Plan(s), that was used to solicit
West Virginia customers.

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12CONFIDENTiAl

RESPONSE:
Subject to and without waiving Defendants’ objections,
Chase will produce
exemplars of terms and conditions, welcome kits, and
online materials available to consumers
relating to its payment protection plans.
Because the Complaint contains only minimal and
conclusory allegations
regarding products other than payment protection plans,
Defendants object to producing any
information concerning such products.
Defendants further object to this Request on the ground
that it is premature,
vague, ambiguous, overbroad, unreasonably burdensome,
and not reasonably calculated to lead
to the discovery of admissible, relevant evidence. Requiring
Chase to search for, assemble, and
produce every document available online relating to its
payment protection plans would be
unreasonably burdensome.

REQUEST FOR PRODUCTION NO. 15:
All telephone answering or telemarketing scripts used with
the marketing of the offer of Your
Ancillary Services, including but not limited to Your Payme
nt Protection Plan(s), to West
Virginia consumers.
RESPONSE:
Subject to and without waiving Defendants’ objections, Defendants
will produce
exemplar telephone answering or telemarketing scripts relating to
Chase’s payment protection
plans pursuant to an appropriate protective order.
Because the Complaint contains only minimal and conclusory allegat
ions about
products other than payment protection plans, Defendants object to
producing information
concerning such products.

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CONFIDENTTAI

Defendants further object to this Request on the
ground that it is vague,
ambiguous, overbroad, unreasonably burdensome, and
not reasonably calculated to lead to the
discovery of relevant. admissible evidence.
Defendants further object to this Request on the ground
that it is premature.
Defendants have filed a motion to dismiss the Attorney
General’s claims, which if granted would
eliminate the need for or substantially narrow the scope
of discovery. Chase will supplement this
response if appropriate after the Court rules on Defend
ants’ pending motion.

REOUEST FOR PRODUCTION NO. 16:

All written policies related to recording calls to and
from customers in relation to marketing
Payment Protection, and in relation to managing custom
er Payment Protection accounts.
RESPONSE:
Defendants further object to this Request on the ground
that the information
requested can be more suitably obtained through
interrogatories, and Defendants refer the
Attorney General to Defendants’ Responses and
Objections to Plaintiff’s First Set of
Interrogatories to JPMorgan Chase & Co. and Chase Bank
USA, N.A.
Defendants further object to this Request on the ground
that it is premature,
vague, ambiguous, unreasonably burdensome, seeks materi
als not reasonably calculated to lead
to the discovery of relevant, admissible evidence, and seeks
materials protected by privileges,
including without limitation attorney-client privilege and work
product immunity.

REQUEST FOR PRODUCTION NO. 17:
A copy of all recordings of calls to and from West Virginia custo
mers in relation to marketing
Payment Protection, and in relation to managing West Virginia custo
mer Payment Protection

accounts.

14

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CONflDENTAL

RESPONSE:
Defendants thrther object to this Request on the ground
that it is premature,
vague, ambiguous, overbroad, unreasonably burden
some, seeks private and confidential
information regarding Chase’s customers, and seeks
information not reasonably calculated to
lead to the discovery of relevant, admissible evidence.
This Request purports to ask Chase to
locate and produce recordings of a large volume of
calls with its customers, a task that would
impose unreasonable burden and expense on Chase and
infringe on the privacy of its customers.

REQUEST FOR PRODUCTION NO. 18:
All test or trial marketing materials, analyses of results
, and compilations of data related to the
development of the Payment Protection Plan(s) that was
marketed in West Virginia.
RESPONSE:
Defendants fhrther object to this Request on the ground
that it is premature,
vague, ambiguous, overbroad, unreasonably burdensome,
seeks confidential, private, and
proprietary information regarding Chase’s analysis and
strategies, and seeks information not
reasonably calculated to lead to the discovery of relevant,
admissible evidence. In particular, the
phrases “analyses of results” and “compilations of data” are
vague and ambiguous.

REQUEST FOR PRODUCTION NO. 19:
All market research or cognitive study research (here defined as
information related to the ability
of consumers to understand the terms or language used by JPMorgan
Chase & Co. in contracts
and offers) in the possession of JPMorgan Chase & Co. related
to the business development or
marketing of Payment Protection that was marketed in West Virgin
ia.
RESPONSE:
There are no responsive documents because JPMorgan had no
involvement in
payment protection plans. Defendants further object to this Reque
st on the ground that it is
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15

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CONFIDENTIAL

premature. vague, ambiguous, overbroa
d, unreasonably burdensome, and not reaso
nably
calculated to lead to the discovery of relev
ant, admissible evidence.

REQUEST FOR PRODUCTION NO. 20:
All marketing studies, research, data, and busi
ness and accounting analyses created or used
in the
business development and marketing of
Your Ancillary Services, including but not limit
ed to
Your Payment Protection Plan(s), that were
sold to West Virginia consumers.
RESPONSE:
Defendants ftrther object to this Request
on the ground that it is premature,
vague, ambiguous, overbroad, unreason
ably burdensome, and not reasonably calculated
to lead
to the discovery of relevant, admissible evid
ence. Because the Complaint contains only mini
mal
and conclusory allegations about products
other than payment protection plans, Defendan
ts
further object to producing information conc
erning such products.

REQUEST FOR PRODUCTION NO. 21:
All documents, compilations, electronic
ally stored documents or information, or
other
information which provides the following
data (unless otherwise specified, please prov
ide
documents that set forth this information
on an annual basis for each year that such data
is
available from 2000 through 2012):
a.
the number of West Virginia JPMorgan Chas
e & Co. credit card holders
for whom JPMorgan Chase & Co. has mad
e benefit payments through Payment Protection or
any other Ancillary Services due to involunta
ry termination;
b.
the number of West Virginia JPMorgan Chas
e & Co. credit card holders
for whom JPMorgan Chase & Co. has made bene
fit payments through Payment Protection or
any other Ancillary Services due to temporary disab
ility;
c.
the number of West Virginia JPMorgan Chase
& Co. credit card holders
who purchased Payment Protection who made
a claim to have their benefit payments paid
through Payment Protection;

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CONF!DENUAL

d.
the number of West Virginia JPMorgan Chase & Co. credit
card holders
for whom JPMorgan Chase & Co. has paid the credit balanc
e through Payment Protection;
e.
the number of West Virginia JPMorgan Chase & Co. credit card
holders
who purchased Payment Protection who made a claim
to have their credit balance paid through
Payment Protection;
f
the number of West Virginia consumers who received any
form of
payment, credit or cancellation from You pursuant to Your Payme
nt Protection Plan(s);
g.
the total amount of money You paid to West Virginia consum
ers in the
form of a payment, credit or cancellation pursuant to Your Payme
nt Protection Plan(s); and
h.
the number of Your West Virginia credit card holders who
purchased
Payment Protection from You, who made a claim for benefit
s of any kind under the Payment
Protection Plan, and whose claim was rejected.
RESPONSE:
Subject to and without waiving Defendants’ objections, Chase
will provide
information relating to the number of its customers who
have made a claim for payment
protection benefits and the percentage of those claims that
have been approved pursuant to an
appropriate protective order. To the extent this request purpor
ts to seek information about
JPMorgan credit card holders, Defendants state that there are no
responsive documents because
JPMorgan does not issue credit cards.
To the extent that the Request seeks additional information, Defend
ants object
that it is premature, vague and ambiguous, duplicative of other reques
ts, overbroad, unreasonably
burdensome, and not reasonably calculated to lead to the discov
ery of relevant, admissible
evidence. The phrases “made benefit payments,” “have their benefits paid,”
“has paid the credit
balance,” “have their credit balance paid,” and “payment, credit, or cancel
lation” are particularly

vague and ambiguous.

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17CONRDENflAL

Because the Complaint contains only conclusory
assertions of wrongdoing about
products other than payment protection plans, Defend
ants further object to producing
information concerning such products.

REQUEST FOR PRODUCTION NO. 22:
All documents that describe or provide guidelines for analyz
ing a consumer’s eligibility for
benefit payments or credit balance payments under the Payme
nt Protection Plan(s).
RESPONSE:
Defendants further object to this Request on the ground
that it is premature, vague
and ambiguous, unreasonably burdensome, and seeks inform
ation that is not reasonably
calculated to lead to the discovery of admissible, relevan eviden
t
ce.

REQUEST FOR PRODUCTION NO. 23:
All Documents that describe the process by which You determ
ine whether a consumer is eligible
for and should receive a benefit payment or credit balanc
e payment under the Payment
Protection Plan(s), including but not limited to Documents
that state who has the authority to
make this decision.
RESPONSE:
Defendants further object to this Request on the ground that
it is premature, vague
and ambiguous, unreasonably burdensome, and seeks inform
ation that is not reasonably
calculated to lead to the discovery ofadmissible, relevant evidence.

REQUEST FOR PRODUCTION NO. 24:
All documents that reflect all Payment Protection or any other Ancillary Servic
es fees charged to
each individual account of a West Virginia consumer.

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18CONFrOENTIAL

RESPONSE:
Defendants further object to this Request on the ground
that it is premature, vague
and ambiguous, unreasonably burdensome, seeks
confidential and private information regarding
Chase’s individual customer accounts, and seeks
information that is not reasonably calculated to
lead to the discovery of admissible, relevant eviden
ce. Producing individual account records
would be enormously burdensome and an invasio
n of the privacy of Chase’s cardholders.
Because the Complaint contains only minimal
and conclusory allegations regarding products
other than payment protection plans, Defendants
further object to producing information
concerning such products. Defendants further object
to this request on the grounds that it seeks
to litigate claims released by the Kardonick settlem
ent and that are subject to the Kardoniek
injunction.

REQUEST FOR PRODUCTION NO. 25:
All documents, including but not limited to letters,
e-mails and other forms of correspondence,
received by You from any West Virginia consum
er complaining about Your Payment Protection
Plan, asking that a Payment Protection Plan be cancel
led, and/or seeking a refund with respect to
Your Payment Protection Plan.
RESPONSE:
Defendants further object to this Request on the ground
that it is premature, vague
and ambiguous, overbroad, seeks confidential and
private information relating to Chase’s
communications from its customers, unreasonably burden
some, and not reasonably calculated to
lead to the discovery of relevant, admissible evidence.

Determining which individuals sent

written correspondence to Chase would require a manual review
of the records of a large volume
of accounts.

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CONFDEN1]AL

REQUEST FOR PRODUCTION NO. 26:
All documents, including but not limited to letters, e-mail
s and other forms of correspondence,
received by You from any West Virginia consumer complaining
about Your Ancillary Services
other than Your Payment Protection Plan, asking that the Ancill
ary Service be cancelled, and/or
seeking a refund with respect to the Ancillary Service.
RESPONSE:
Defendants further object to this Request on the ground that it is
premature, vague

and ambiguous, overhroad, seeks confidential and private inform
ation relating to Chase’s
communications from its customers, unreasonably burdensome,
and not reasonably calculated to
lead to the discovery of relevant, admissible evidence.

Determining which individuals sent

written correspondence to Chase would require a manual review
of the records of a large volume
of accounts.

In addition, because the Complaint contains only minimal and
conclusory

allegations about products other than payment protection plans, Defend
ants object to producing
information concerning such plans.

REQUEST FOR PRODUCTION NO. 27:
Your response to letters, e-mails and other forms of correspondence receive
d by You from any
West Virginia consumer complaining about Your Payment Protec
tion Plan, asking that a
Payment Protection Plan be cancelled, and/or seeking a refund with respec
t to Your Payment
Protection Plan.
RESPONSE:
Defendants further object to this Request on the ground that it is premature,
vague

and ambiguous, overbroad, seeks confidential and private information relating to Chase’
s
communications with its customers, unreasonably burdensome, and not reasonably calcula
ted to
lead to the discovery of relevant, admissible evidence,

Determining which individuals had

written correspondence with Chase would require a manual review of the record
s of a large
volume of accounts.
-

20

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CONFDENTAL

REQUEST FOR PRODUCTION NO. 28:

Your response to letters, c-mails and other forms
of correspondence received by You from any
West Virginia consumer complaining about You
r Ancillary Services other than Your Payment
Protection Plan, asking that the Ancillary Serv
ice be cancelled, and/or seeking a reftmd with
respect to the Ancillary Service.
RESPONSE:
Defendants further object to this Request on the grou
nd that it is premature, vague
and ambiguous, overbroad, seeks confidential
and private information relating to Chase’s
communications with its customers, unreasonably
burdensome, and not reasonably calculated to
lead to the discovery of relevant, admissible evid
ence. Determining which individuals had
written correspondence with Chase would requ
ire a manual review of the records of a large
volume of accounts. In addition, because the Com
plaint contains only minimal and conclusory
allegations about products other than payment prote
ction plans, Defendants object to producing
information concerning such plans.

REQUEST FOR PRODUCTION NO. 29:

A list of all of Your West Virginia customers who paid
for Payment Protection on more than one
account.
RESPONSE:

Defendants further object to this Request on the grou
nd that it is premature,
overbroad, seeks confidential, private and proprieta
ry information, and is not reasonably
calculated to lead to the discovery of relevauit, admissib evid
le
ence. Defendants further object to
this request on the grounds that it seeks to litigate claims relea
sed by the Kardonick settlement
and that are subject to the Kardonick injunction.

-21CONflDENTAi.

REQUEST FOR PRODUCTION NO. 30:
A list of all of Your West Virginia customers
who paid for any of Your Ancillary Services on
more than one account.
RESPONSE:
Because the Complaint contains only minimal
and conclusory allegations about
products other than payment protection plan
s, Defendants object to producing information
concerning such plans. Defendants further obje
ct to this Request on the ground that it is
premature, vague and ambiguous, overbroa
d, unreasonably burdensome, seeks confidential,
private and proprietary information, and is not
reasonably calculated to lead to the discovery of
relevant, admissible evidence.

REQUEST FOR PRODUCTION NO. 31:
All documents that indicate how (i.e., on what
basis hourly, commission, etc.) telemarketers
who marketed Payment Protection to West Virginia
customers are paid.
-

RESPONSE:
Defendants further object to this Request on the
ground that it is premature, vague
and ambiguous, overbroad, unreasonably burd
ensome, seeks confidential and proprietary
information, and is not reasonably calculated to
lead to the discovery of relevant, admissible
evidence.

REQUEST FOR PRODUCTION NO. 32j
All documents concerning JPMorgan Chase & Co.’s docu
ment destruction or retention policy,
including, but not limited to, e-mail, voice mail and reco
rdings of calls with potential or actual
customers,

-

22

-

CONFIDENTIAL

providing all of the requested discovery
would impose significant, unreasonable expe
nses and
burdens on the Defendants.
4.

Defendants object to the Requests on the grou
nd that they are premature in
light of Defendants’ pending motion to disq
ualify the Attorney General’s outside counsel.
The
Requests were promulgated, signed, and
issued by counsel that Defendants contend shou
ld be
disqualified from representing the Attorney
General. In addition, Defendants should not
be
required to meet-and-confer about disco
very disputes with counsel that are subject
to
disqualification.
5.

Defendants object to the Requests as premature
prior to the entry of an
appropriate protective order.
6.

If the Court denies Defendants’ two pending
motions, Defendants will
supplement these responses and objections
within a reasonable period of time after the
Court
rules. Defendants will also supplement these
responses and objections as may be required by
the
West Virginia Rules of Civil Procedure.
7.

Defendants object to the Requests to the exten
t they call for information
from anyone other than Chase and its employe
es. JPMorgan had no involvement in the payment
protection plans at issue in the Complaint and
has no responsive information. Furthermore,
Chase is not required to produce information that
is not in its possession, custody, or control,
such as information maintained by third parties.
8.

Defendants object to the scope of the Requests
to the extent they call for

information from before August 2007, in light of limit
ations issues. Defendants’ responses to
these requests generally will cover the period from
August 2007 to the present.

-

24

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C0NPDENTiAL

9.

Because the Complaint contains only minimal and conclu
sory allegations

of wrongdoing about products other than payment
protection plans, Defendants object to
producing information concerning such products. The
Attorney General has not articulated with
any specificity any claims targeting products beyond Defend
ants’ payment protection plans.
Indeed, the only direct reference to products beyond
Defendants’ payment protection plans
appears in Paragraph 20 of the Complaint. All claims involv
ing products beyond Defendants’
payment protection plans are pleaded in conclusory fashion
, and the Complaint fails to provide
sufficient notice about the Attorney General’s claims.
10.

Defendants object to the definitions associated with
the terms “Payment

Protection” and “Payment Protection Plans.”

For purposes of responding to the Requests,

Defendants have construed those terms to refer to Chase’s
debt cancellation contracts and debt
suspension agreements which are offered to WestVirginia
consumers.
II.

Defendants object to the Requests to the extent that
the definitions,

instructions, and specific questions incorporated therein
are vague, ambiguous, overbroad, or
unreasonably burdensome, do not describe the information
sought with reasonable particularity,
or otherwise exceed or fail to comply with the requirements
imposed by the West Virginia Rules
of Civil Procedure.
12.

Defendants object to the Requests to the extent they seek
disclosure of

information protected by attorney-client privilege, the work-product
immunity doctrine, or any
other applicable privilege or protection. Defendants do not waive
or intend to waive any such
privileges or protections, and any production of privileged
or protected information is
inadvertent.

-25CONFIDENTIAL

13.

Defendants object to the Requests to the extent they ask Defend
ants to

produce confidential, proprietary, or other sensitive inform
ation, Defendants also object to the
Requests to the extent they seek private information relatin
g to Chase cardholders, personally
identifying information, or information about individual dispute
s that is subject to confidentiality
obligations, Defendants also object to producing any inform
ation relating to or about its nonWest Virginia consumers. If such information is provided, Defend
ants will only provide it in
connection with an appropriate protective order.
14.

Defendants object to Instructions No. 2 and 6 in their entirety
because

providing all the requested information would be unreasonably
burdensome and would go
beyond what is required by the West Virginia Rules of Civil
Procedure. Defendants will provide
appropriate information regarding potentially relevant materi
als that are not in Chase’s
possession, custody, or control through the meet-and-confer proces
s.
15.

Defendants object to Instruction No. 4 to the extent it purports to
require

Defendants to provide (1) a privilege log for communicatio
ns between Chase’s employees and
its counsel, (2) a privilege log for communications that occurr
ed after this lawsuit was filed, and
(3) the information requested in Instruction 4(g). Defendants will
produce a privilege log at an
appropriate time.
16.

Defendants object to the Requests to the extent they purport to impose

requirements that exceed the requirements of the West Virginia Rules of Civil
Procedure.
17.

Subject to and without waiving its objections, Chase will produce

responsive documents on a rolling basis as explained above. In addition, Chase
remains willing
to confer with the Attorney General’s counsel regarding the requests.

-

26

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CONF!DENT’At

DATED: May 18, 2012

Thomas H. Ewing (WVSB # 9655)
KAY CASTO & CI-IANEY PLLC
1500 Chase Tower
707 Virginia Street, East
Charleston, WV 25301
Tel:
[phone]
Fax: [phone]
Email: [e-mail]
tewingkaycasto.com
Robert D. Wick
Andrew Ruffino
Andrew Soukup
COVINGTON & BURLING LLP
1201 Pennsylvania Avenue, NW
Washington, DC 20004-2401
Tel:
[phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Attorneysfor Defendants JPMorgan Chase
& Co. & Chase Bank USA, NA.

CONFDENTAL

CERTIFICATE OF SERViCE
I hereby certify that on the23v day of May,
__
2012, 1 served a copy of Responses
and Objections to Plaintiff’s First Set of
Requests for Production of Documents to JPMorga
n
Chase & Co. and Chase Bank USA, NA.
via firstcJass mail, postage prepaid and/or elect
ronic
mail to the following individuals at the addr
esses listed below:

Frances A. Hughes
Chief Deputy of the Attorney General
Office of the Attorney General
State Capitol Complex
Building I, Room E-26
Charleston, WV 25305
William Druckman
Special Assistant Attorney General
THE LAW OFFICES OF DRUCKMAN &
ESTEP
606 Virginia Street East, Suite 100
Charleston, WV 25301

Guy Bucci
Timothy Bailey
Lee Javins
Special Assistant Attorneys General
BUCCI BAILEY & JAVINS LC
213 Hale Street
Charleston, WV 25301
Laura Baughman
Sherri Ann Saucer
Special Assistant Attorney General
BARON & BUDD, P.C.
3102 Oak Lawn Ave., Suite 1100
Dallas, TX 75219

William W. Booker

CONFiDENTIAL