Cangelosi v. New York Life Insurance Company et al

Filing 55

ORDER granting in part and denying in part 23 Motion to Compel New York Life Investment Management LLC. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 9/15/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
PAUL M. CANGELOSI

CIVIL ACTION

VERSUS

NO. 15-325-SDD-RLB

NEW YORK LIFE INSURANCE
COMPANY, ET AL.
ORDER
Before the Court is Plaintiff’s Motion to Compel Answers to Interrogatories and Requests
for Production of Documents Against New York Life Investment Management, LLC
(“NYLIM”) (R. Doc. 23). The Motion is opposed. (R. Doc. 48). Plaintiff has filed a Reply. (R.
Doc. 52).
I.

Background
On May 21, 2015, Paul M. Cangelosi (“Plaintiff”) initiated this diversity action naming

as defendants New York Life Insurance Company (“New York Life”); NYLIM; NYLIFE
Securities, LLC (“NYLIFE”); Peter M. Kirkfield; John Hancock Financial; and John Hancock
Retirement Plan Services, LLC (collectively, “Defendants”). (R. Doc. 1).
Plaintiff asserts that he was hired as an agent for defendant New York Life in 2003, and
formerly worked for Head and Enquist, now H&E Equipment Services, Inc. (“H&E”). (R. Doc.
21, “Am. Compl.” ¶¶ 14, 17). Plaintiff alleges that after he was hired by New York Life, he
obtained a securities license so that he could solicit clients and broker products for his employer
and was encouraged by the company to do so. (Am. Compl. ¶¶ 14-15). Plaintiff alleges that he
worked as a “team member” with his employer’s subsidiary, defendant NYLIM, in
recommending a retirement plan to his former employer H&E. (Am. Compl. ¶¶ 19-20). H&E
accepted the plan on or around December 15, 2004. (Am. Compl. ¶ 21).

Plaintiff claims that he received compensation for his involvement in the plan until May
21, 2014, when defendant Peter Kirkfield, Director-Relationship Manager for NYLIMRetirement Plan Services, lowered the administrative costs for the plan by effectively eliminating
Plaintiff’s annual compensation of approximately $80,000. (Am. Compl. ¶¶ 24-31). Plaintiff
further alleges that he is a “registered representative” with NYLIFE, he is entitled to
compensation as a result of sales of registered products, and that NYLIM has continued to use
his securities license without compensating him. (Am. Compl. ¶¶ 32-33).
Plaintiff alleges that on April of 2015, defendant John Hancock Financial acquired
divisions of NYLIM, combined those divisions with another entity to form defendant John
Hancock Retirement Plan Services, LLC, making either or both of the John Hancock entities
successor to the liabilities of NYLIM. (Am. Compl. ¶ 34).
Plaintiff brings causes of action for breach of contract (Am. Compl. ¶¶ 36-44); tortious
interference with contract and business relations (Am. Compl. ¶¶ 45-48); and breach of fiduciary
duty (Am. Compl. ¶¶ 49-51). He seeks recovery of lost compensation and other damages. (Am.
Compl. ¶¶ 52-53).
On October 14, 2015, Plaintiff served Interrogatories and Requests for Production of
Documents on NYLIM. (R. Doc. 23-2).
On January 8, 2016, after receiving certain extensions from Plaintiff, NYLIM provided
its responses to the discovery requests. (R. Docs. 23-3).
On February 23, 2016, Plaintiff a letter to NYLIM indicating the perceived deficiencies
with the responses. (R. Docs. 23-4). Having never received any supplemental discovery
responses despite correspondence between the parties from March 16, 2016 and March 31, 2016,

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Plaintiff’s counsel deemed any further communication regard the discovery disputes to be futile.
(R. Docs. 23-30).
On April 6, 2016, Plaintiff filed the instant motion to compel requesting the Court to
order supplemental responses to Interrogatory Nos. 1-15 and Requests for Production Nos. 2, 49.
II.

Law and Analysis
A.

Legal Standards

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties
may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P.
26(b)(1). The court must limit the frequency or extent of discovery if it determines that: “(i) the
discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less expensive; (ii) the party seeking
discovery has had ample opportunity to obtain the information by discovery in the action; or (iii)
the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P.
26(b)(2)(C).
“The court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
Rule 26(c)’s “good cause” requirement indicates that the party seeking a protective order has the

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burden “to show the necessity of its issuance, which contemplates a particular and specific
demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra
Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323,
1326 n.3 (5th Cir. 1978)).
Rules 33 and 34 provide a party with 30 days after service of the discovery to respond or
object. See Fed. R. Civ. P. 33(b)(2) and 34(b)(2)(A). If a party fails to respond fully to discovery
requests made pursuant as to Rules 33 and 34 in the time allowed by the Federal Rules of Civil
Procedure, the party seeking discovery may move to compel disclosure and for appropriate
sanctions under Rule 37. An “evasive or incomplete disclosure, answer, or response must be
treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4).
B.

The Rule 37(a)(1) Conference

As a preliminary issue, the Court will address NYLIM’s argument that Plaintiff failed to
engage in good faith efforts to resolve the instant discovery disputes prior to filing his motion.
(R. Doc. 48 at 3).
Rule 37(a)(1) of the Federal Rules of Civil Procedure provides that any motion to compel
“must include a certification that the movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or discovery in an effort to obtain it without
court action.” Failure to comply with the meet and confer requirement may constitute sufficient
reason to deny a motion to compel. Shaw Grp. Inc. v. Zurich Am. Ins. Co., No. 12-257, 2014 WL
4373197, at *3 (M.D. La. Sept. 3, 2014); see also Forever Green Athletic Fields, Inc. v. Babcock
Law Firm, LLC, No. 11-633 (M.D. La. July 2, 2014) (denying motion to compel where defense
counsel made a single attempt by email to meet and confer and did not do so in a good faith
effort to resolve the dispute without court intervention). The Rule 37 conference is an effort to

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avoid judicial intervention, and the parties must treat the informal negotiation process as a
substitute for, and not simply a formalistic prerequisite to, judicial resolution of discovery
disputes.
Plaintiff’s counsel submitted a certification that she made a “good faith attempt to confer
with counsel” for NYLIM to resolve the instant discovery disputes prior to filing the instant
motion to compel. (R. Doc. 23-30). In support of this certification, Plaintiff submits a demand
letter dated February 23, 2016, seeking withdrawal of general objections and supplemental
responses to the discovery requests at issue in this motion. (R. Doc. 23-31). In addition,
Plaintiff provides 14 exhibits consisting of communications between March 16, 2016 and March
31, 2016, which primarily discuss extensions of discovery deadlines and discovery of
electronically stored information. (R. Doc. 23-32 to R. Doc. 23-45).
While Plaintiff’s counsel could have made better efforts at discussing resolution of the
instant discovery issues with defense counsel, the Court will move on to the merits of the instant
motion and will consider each discovery request at issue in turn. Counsel is advised that at the
end of this Order is a list of specific information that must be included in any Rule 37 certificate
filed in the remainder of this action.
C.

Individual Discovery Requests
1.

Interrogatory No. 1

INTERROGATORY NO. 1:
Please provide the full name and address of each and every person who provided
information for answering these interrogatories, and identify by number the
interrogatory(ies) for which each such person provided information.
RESPONSE TO INTERROGATORY NO. 1:
Greg Lembrich
51 Madison Avenue
New York, New York 10010
212.576.7309 Voice
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Gray Sexton/Alesia M. Ardoin/Jennifer L. Jackson
Sexton-Hebert
10715 N. Oak Hills Parkway
Baton Rouge, LA 70810
225-767-2020
Plaintiff argues that the response is incomplete “because it does not identify the person
who provided information to answer the interrogatory by number as requested.” (R. Doc. 23-1 at
7). In response, NYLIM represents that “Greg Lembrich provided the information used to
answer all of the interrogatories. . . .” (R. Doc. 48 at 5).
Based on the foregoing, the Motion is denied as moot regarding Interrogatory No. 1.
2.

Interrogatory No. 2

INTERROGATORY NO. 2:
Please disclose the amount of money, revenue, compensation and/or fees that
New York Life Investment Management, LLC received or derived from the H&E
Equipment Services, Inc. 401(k) Profit Sharing Plan on an annual basis from 2004
to the present.
RESPONSE TO INTERROGATORY NO. 2:
Please see the spreadsheet titled “Response to Interrogatory Nos. 2 & 3” produced
in response to the discovery requests propounded on NYLIFE Securities, LLC.
Plaintiff argues that the response is incomplete “because the information requested is not
contained on the spreadsheet” produced. (R. Doc. 23-1 at 7). NYLIM responds that the
spreadsheet does, in fact, contain the information requested. (R. Doc. 48 at 6).
As no specific objection was raised regarding this interrogatory, and there is a dispute
between the parties regarding whether the information sought is ascertainable from the
spreadsheet produced, the Court will require NYLIM to answer the interrogatory by providing
the total “amount of money, revenue, compensation and/or fees” as requested for each year from
2004 to the present.

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Based on the foregoing, the Motion is granted with regard to Interrogatory No. 2. A
supplemental response must be provided within 14 days of the date of this Order.
3.

Interrogatory No. 3

INTERROGATORY NO. 3:
Provide the amount of money, revenue, compensation, and/or fees paid by New
York Life Investment Management, LLC to Paul Cangelosi in connection with the
H&E Equipment Services, Inc. 401(k) Profit Sharing Plan on an annual basis
from 2004 to the present.
RESPONSE TO INTERROGATORY NO. 3:
Please see the spreadsheet titled “Response to Interrogatory Nos. 2 & 3” produced
in response to the discovery requests propounded on NYLIFE Securities, LLC.
Plaintiff argues that the response is incomplete “because the information requested is not
on the spreadsheet” produced because the spreadsheet “does not identify the payor.” (R. Doc. 231 at 8). NYLIM responds that the spreadsheet does, in fact, contain the information requested.
(R. Doc. 48 at 6).
As no specific objection was raised regarding this interrogatory, and there is a dispute
between the parties regarding whether the information sought is ascertainable from the
spreadsheet produced, the Court will require NYLIM to simply answer the interrogatory by
providing the total “amount of money, revenue, compensation and/or fees” as requested for each
year from 2004 to the present.
Based on the foregoing, the Motion is granted with regard to Interrogatory No. 3. A
supplemental response must be provided within 14 days of the date of this Order.
4.

Interrogatory No. 4

INTERROGATORY NO. 4:
Who determined the amount of money, fees, revenue or compensation to be paid
to Paul Cangelosi in connection with the H&E Equipment Services, Inc. 401(k)
Profit Sharing Plan?

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RESPONSE TO INTERROGATORY NO. 4:
Mr. Cangelosi’s compensation was not tied to securities that were purchased. He
was paid a finder’s fee when he brought the H&E Equipment Services, Inc.
401(k) Profit Sharing Plan to the Defendant. Thereafter, Mr. Cangelosi was paid
trail compensation based on total plan assets, not securities.
Plaintiff argues that the response is incomplete “because it does not provide ‘who
determined’ Mr. Cangelosi’s compensation nor the amount of compensation that was paid to
him.” (R. Doc. 23-1 at 8). In response, NYLIM argues that the interrogatory is overly broad and
seeks irrelevant information. (R. Doc. 48 at 6-7).
NYLIM’s instant objections to the specific interrogatory at issue were not raised at the
time of responding to the interrogatory, and are therefore waived. See In re United States, 864
F.2d 1153, 1156 (5th Cir. 1989) (“[A]s a general rule, when a party fails to object timely to
interrogatories, production requests, or other discovery efforts, objections thereto are waived.”);
B&S Equip. Co. v. Truckla Servs., Inc., No. 09-3862, 2011 WL 2637289, at *6 (E.D. La. July 6,
2011) (finding waiver of all objections to “discovery requests based on relevance, unduly
burdensome, over broad, or any other objection not grounded on the attorney client or the work
product privilege.”).
Furthermore, the Court concludes that the interrogatory is not overly broad and seeks
information relevant to Plaintiff’s claim that he had a compensation agreement with one of the
New York Life entities. NYLIM must supplement its response to identify the person or persons
who determined Plaintiff’s compensation in connection with the H&E retirement plan at issue.
Based on the foregoing, the Motion is granted with regard to Interrogatory No. 4. A
supplemental response must be provided within 14 days of the date of this Order.

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5.

Interrogatory No. 5

INTERROGATORY NO. 5:
How was the amount of money, revenue, fee and/or compensation paid to Paul
Cangelosi in connection with the H&E Equipment Services, Inc. 401(k) Profit
Sharing Plan determined?
RESPONSE TO INTERROGATORY NO. 5:
Defendant objects to this discovery as improper on the grounds and to the extent it
seeks documents or information that is neither relevant to the claims or defenses
of any party, nor reasonably calculated to lead to the discovery of admissible
evidence. Defendant also objects to this discovery as improper on the grounds and
to the extent that it seeks documents that contain confidential and proprietary
information, the disclosure of which may subject Defendant, to competitive
disadvantage.
Plaintiff argues that a response should be provided notwithstanding the objections, as
well as a privilege log if applicable. (R. Doc. 23-1 at 9). In response, NYLIM argues that the
interrogatory is overly broad and seeks irrelevant information, adding that the “corporate
relationship between New York Life Investment Management Company, LLC and other entities
is not relevant to this proceeding.” (R. Doc. 48 at 7).1
The Court concludes that the interrogatory is not overly broad and seeks information
relevant to Plaintiff’s claim that he had a compensation agreement with one of the New York
Life entities. NYLIM must supplement its response by providing an explanation of how
Plaintiff’s compensation was determined in connection with the H&E retirement plan at issue.
To the extent NYLIM has concerns regarding confidential and proprietary information, it may
seek entry of a protective order governing confidential documents. A privilege log is not
required as no privileges and/or immunities have been asserted.
Based on the foregoing, the Motion is granted with regard to Interrogatory No. 5. A
supplemental response must be provided within 14 days of the date of this Order.

1

NYLIM does not explain how this interrogatory seeks information regarding its corporate relationship
with other entities.

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6.

Interrogatory No. 6

INTERROGATORY NO. 6:
Who paid money, fees, compensation and/or revenues to New York Life
Investment Management Company, LLC in connection with the H&E Equipment
Services, Inc. 401(k) Profit Sharing Plan on an annual basis from 2004 to the
present?
RESPONSE TO INTERROGATORY NO. 6:
Defendant objects to this discovery as improper on the grounds and to the extent it
seeks documents or information that is neither relevant to the claims or defenses
of any party, nor reasonably calculated to lead to the discovery of admissible
evidence. Defendant also objects to this discovery as improper on the grounds and
to the extent that it seeks documents that contain confidential and proprietary
information, the disclosure of which may subject Defendant, to competitive
disadvantage.
Plaintiff argues that a response should be provided notwithstanding the objections, as
well as a privilege log if applicable, as it seeks relevant information. (R. Doc. 23-1 at 9-10). In
response, NYLIM argues that the interrogatory is overly broad and seeks irrelevant information,
adding that the “identity of who paid money to New York Life Management Company, LLC is
not relevant to this proceeding.” (R. Doc. 48 at 8).
The Court concludes that the information sought in this interrogatory is relevant to
Plaintiff’s claim. Plaintiff is seeking recovery of his compensation related to the H&E retirement
plan. This interrogatory, which requests the identity of the persons and/or entities who paid
compensation related to that plan, seeks relevant information.
Based on the foregoing, the Motion is granted with regard to Interrogatory No. 6. A
supplemental response must be provided 14 days of the date of this Order.
7.

Interrogatory No. 7

INTERROGATORY NO. 7:
How was the amount of money, fees, compensation, revenues, received, paid to or
derived by New York Life Investment Management [Company], LLC from the
H&E Equipment Services, Inc. 401(k) Profit Sharing Plan determined?

10

RESPONSE TO INTERROGATORY NO. 7:
Defendant objects to this discovery as improper on the grounds and to the extent it
seeks documents or information that is neither relevant to the claims or defenses
of any party, nor reasonably calculated to lead to the discovery of admissible
evidence. Defendant also objects to this discovery as improper on the grounds and
to the extent that it seeks documents that contain confidential and proprietary
information, the disclosure of which may subject Defendant, to competitive
disadvantage.
Plaintiff argues that a response should be provided notwithstanding the objections, as
well as a privilege log if applicable, as it seeks relevant information. (R. Doc. 23-1 at 10). In
response, NYLIM argues that the interrogatory is overly broad and seeks irrelevant information,
adding that the “determination of how New York Life Investment Management Company, LLC
derived money from the H&E Plan is not relevant to this proceeding.” (R. Doc. 48 at 9).
The Court concludes that the information sought in this interrogatory is relevant to
Plaintiff’s claim. Plaintiff is seeking recovery of his compensation related to the H&E retirement
plan. This interrogatory, which requests an explanation of how compensation related to that plan
was determined, seeks relevant information.
Based on the foregoing, the Motion is granted with regard to Interrogatory No. 7. A
supplemental response must be provided within 14 days of the date of this Order.
8.

Interrogatory No. 8

INTERROGATORY NO. 8:
Who determined the amount of money, fees, compensation or revenue was to be
paid, received, paid to or derived by New York Life Investment Management
Company, LLC from the H&E Equipment Services, Inc. 401(k) Profit Sharing
Plan?
RESPONSE TO INTERROGATORY NO. 8:
Defendant objects to this discovery as improper on the grounds and to the extent it
seeks documents or information that is neither relevant to the claims or defenses
of any party, nor reasonably calculated to lead to the discovery of admissible
evidence.

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Plaintiff argues that a response should be provided notwithstanding the objections, as
well as a privilege log if applicable, as it seeks relevant information. (R. Doc. 23-1 at 11). In
response, NYLIM argues that the interrogatory is overly broad and seeks irrelevant information,
adding that the “corporate relationship between New York Life Investment Management
Company, LLC and other entities is not relevant to this proceeding.” (R. Doc. 48 at 9-10).
The Court concludes that the information sought in this interrogatory is relevant to
Plaintiff’s claim. Plaintiff is seeking recovery of his compensation related to the H&E retirement
plan. This interrogatory, which requests the identity of the persons and/or entities who
determined compensation related to that plan, seeks relevant information.
Based on the foregoing, the Motion is granted with regard to Interrogatory No. 8.
A supplemental response must be provided within 14 days of the date of this Order.
9.

Interrogatory No. 9

INTERROGATORY NO. 9:
Please identify by name, address and job title of any and all persons employed by
and/or who acted as a representative of New York Life Investment Management
Company, LLC in providing any service to H&E Equipment Services, Inc. in
connection with the H&E Equipment Services, Inc. 401(k) Profit Sharing Plan,
and describe in detail the service provided by each such person.
RESPONSE TO INTERROGATORY NO. 9:
Defendant objects to this discovery as improper on the grounds and to the extent it
seeks documents or information that is neither relevant to the claims or defenses
of any party, nor reasonably calculated to lead to the discovery of admissible
evidence. Defendant objects to this discovery as improper on the grounds and to
the extent it is overly broad and not reasonably limited in scope.
Plaintiff argues that a response should be provided notwithstanding the objections, as it
seeks relevant information as it may lead to the identity of potential witnesses and the
apportionment of fees and compensation among those persons in connection with the H&E
retirement plan. (R. Doc. 23-1 at 11). In response, NYLIM argues that the interrogatory is

12

overly broad and vague as it uses the term “any service” rather than limit the request to relevant
employees. (R. Doc. 48 at 10).
The Court agrees that the term “any service” is both vague and overly broad.
Accordingly, the Court will limit the request to NYLIM employees and/or representatives who
specifically derived compensation from the H&E retirement plan and/or have knowledge
regarding Plaintiff’s compensation derived from the H&E retirement plan.
Based on the foregoing, the Motion is granted in part and denied in part with regard to
Interrogatory No. 9. A supplemental response must be provided within 14 days of the date of
this Order.
10.

Interrogatory No. 10

INTERROGATORY NO. 10:
Describe the business, contractual and/or corporate relationship between New
York Life Investment Management Company, LLC and each of the following:
(a) New York Life Insurance Company, LLC;
(b) NYLIFE Securities, LLC;
(c) Peter M. Kirkfield;
(d) John Hancock Financial; and
(e) John Hancock Retirement Plan Services, LLC.
RESPONSE TO INTERROGATORY NO. 10:
Defendant objects to this discovery as improper on the grounds and to the extent it
seeks documents or information that is neither relevant to the claims or defenses
of any party, nor reasonably calculated to lead to the discovery of admissible
evidence. Defendant objects to this discovery as improper on the grounds and to
the extent it is overly broad and not reasonably limited in scope.
Plaintiff argues that the responses provided are “illegitimate and baseless boilerplate
objections” and that it is essential for him to discover the relationship of the defendants in this
action. (R. Doc. 23-1 at 12). NYLIM argues that the request is overly broad and the “corporate
relationship between New York Life Investment Management Company, LLC and other entities
is not relevant to this proceeding.” (R. Doc. 48 at 11).

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The instant interrogatory seeks information relevant to Plaintiff’s claims for damages and
the determination of which, if any, of the defendants is liable for damages. The interrogatory is
not overly broad as stated.
Based on the foregoing, the Motion is granted with regard to Interrogatory No. 10. A
supplemental response must be provided within 14 days of the date of this Order.
11.

Interrogatory No. 11

INTERROGATORY NO. 11:
Please state whether any emails, correspondence, notes, memoranda, text
messages, and/or any other writing or recording of any kind or nature relating to
the H&E Equipment Services, Inc. 401(k) Profit Sharing Plan have been deleted
or destroyed since the inception of the H&E Equipment Services, Inc. 401(k)
Profit Sharing Plan, and if so, describe each and every such email,
correspondence, notes, memoranda, text messages, or other writing or recording.
RESPONSE TO INTERROGATORY NO. 11:
Defendant objects to this discovery as improper on the grounds and to the extent it
is overly broad and not reasonably limited in scope.
Plaintiff argues that the interrogatory asks whether relevant documents have been
destroyed, which is relevant to a potential claim of spoliation. (R. Doc. 23-1 at 12-13). In
response, NYLIM argues that the interrogatory is overly broad and not proportional to the needs
of this case because it seeks descriptions of specific deleted or destroyed corresponded “relating
to” the H&E retirement plan. (R. Doc. 48 at 11-12).
Plaintiff has not raised a spoliation claim in this proceeding, and has provided no
foundation for asserting such a claim based upon insufficient productions of documents. As
stated, the interrogatory is overly broad and, in the absence of any evidence supporting spoliation
of evidence, disproportional to the needs of this case.2
Based on the foregoing, the Motion is denied with regard to Interrogatory No. 11.

2

To the extent Plaintiff has concerns about the preservation of records, the court will allow limited discovery
regarding any document retention policies of the custodian(s) of relevant documents.

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12.

Interrogatory No. 12

INTERROGATORY NO. 12:
Please give the name and address of each and every person employed by or who
acted as a representative of New York Life Investment Management, LLC who
you believe to have knowledge about the H&E Equipment Services, Inc. 401(k)
Profit Sharing Plan from 2004 to the present.
RESPONSE TO INTERROGATORY NO. 12:
Defendant objects to this discovery on the grounds and to the extent it is overly
broad and calls for speculation.
Plaintiff argues that the interrogatory posits “a standard question asked in virtually every
case” and that the objection is frivolous. (R. Doc. 23-1 at 13-14). In response, NYLIM argues
that the request is overly broad because it is not limited to “those employees and representatives
that have knowledge regarding the receipt of compensation by Cangelosi,” and otherwise calls
for speculation. (R. Doc. 48 at 12).
The Court agrees that the interrogatory is overly broad as stated. Accordingly, the Court
will limit the request to NYLIM employees and/or representatives with knowledge regarding
Plaintiff’s compensation derived from the H&E retirement plan.
Based on the foregoing, the Motion is granted in part and denied in part with regard to
Interrogatory No. 12. A supplemental response must be provided within 14 days of the date of
this Order.
13.

Interrogatory No. 13

INTERROGATORY NO. 13:
Please give your understanding of any and all agreements and/or contracts
between New York Life Investment Management Company, LLC and Paul
Cangelosi with respect to the H&E Equipment Services, Inc. 401(k) Profit
Sharing [Plan].
RESPONSE TO INTERROGATORY NO. 13:
Defendant objects to this discovery on the grounds and to the extent it overly
broad and calls for speculation. Subject to and without waiving said objection,

15

Defendant states that the contracts and agreements are the best evidence of the
contents of those contracts and agreements.
Plaintiff argues that the objection is a “clear effort to frustrate discovery” and that
NYLIM should have at least produced any written contract that exists. (R. Doc. 23-1 at 14). In
response, NYLIM represents that it has “produced copies of all of its agreements with
Cangelosi.” (R. Doc. 48 at 13).
The Court finds that an interrogatory is an inappropriate discovery device for obtaining
agreements and/or contracts between Plaintiff and a defendant, as well as an inappropriate
discovery device for obtaining a defendant’s understanding of such agreements and/or contracts.
Furthermore, NYLIM represents it has produced all of its agreements with Plaintiff. Plaintiff
may seek additional information through other discovery devices such as requests for production
and a Rule 30(b)(6) deposition.
Based on the foregoing, the Motion is denied with regard to Interrogatory No. 13.
14.

Interrogatory No. 14

INTERROGATORY NO. 14:
Please give your understanding of any and all agreements and/or contracts
between any and all of the following entities and Paul Cangelosi with respect to
the H&E Equipment Services, Inc. 401(k) Profit Sharing Plan:
(a) New York Life Insurance Company;
(b) NYLIFE Securities, LLC;
(c) Peter M. Kirkfield;
(d) John Hancock Financial; and
(e) John Hancock Retirement Plan Services, LLC.
RESPONSE TO INTERROGATORY NO. 14:
Defendant objects to this discovery on the grounds and to the extent it is overly
broad and calls for speculation. Subject to and without waiving said objection,
Defendant states that the contracts and agreements are the best evidence of the
contents of those contracts and agreements.

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Plaintiff again argues that NYLIM should have responded by producing written contracts.
(R. Doc. 23-1 at 15). In response, NYLIM represents that it has “produced copies of all of its
agreements with Cangelosi.” (R. Doc. 48 at 14).
The Court finds that an interrogatory is an inappropriate discovery device for obtaining
agreements and/or contracts between Plaintiff and the defendants, as well as an inappropriate
discovery device for obtaining a defendant’s understanding of such agreements and/or contracts.
Furthermore, NYLIM represents it has produced all of its agreements with Plaintiff. Plaintiff
may seek additional information through other discovery devices such as requests for production
and a Rule 30(b)(6) deposition.
Based on the foregoing, the Motion is denied with regard to Interrogatory No. 14.
15.

Interrogatory No. 15

INTERROGATORY NO. 15:
Please state in detail how the H&E Equipment Services, Inc. 401(k) Profit
Sharing Plan was valued in the sale of the retirement plans, accounts and/or the
business of New York Life Investment Management, LLC to John Hancock
Financial and/or John Hancock Retirement Plan Services, LLC.
RESPONSE TO INTERROGATORY NO. 15:
Defendant objects to this discovery as improper on the grounds and to the extent it
seeks documents or information that is neither relevant to the claims or defenses
of any party, nor reasonably calculated to lead to the discovery of admissible
evidence.
Plaintiff again argues that this interrogatory is relevant to the issue of recoverable
damages. (R. Doc. 23-1 at 15). In response, NYLIM argues that the information sought is
irrelevant and confidential. (R. Doc. 48 at 14-15).
The Court concludes that this interrogatory seeks information relevant to Plaintiff’s
allegations that he is entitled to a percentage of the value received by NYLIM regarding the sale
of the H&E retirement plan. Plaintiff specifically alleges that the NYLIM’s breach “resulted in

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the loss of compensation otherwise due Cangelosi for a percentage of revenues” derived by
NYLIM and/or New York Life from the H&E retirement plan. (Am. Compl. ¶ 51). Furthermore,
Plaintiff alleges that he has “sustained a direct loss of $80,000.00 per year in compensation
expressed as a percentage of total revenue to NYLIM in connection with the H&E retirement
plan and will continue to suffer a loss no less than $80,000.00 for as long as NYLIM or its
successor administer the H&E employee retirement plan.” (Am. Compl. ¶ 52). The value of the
H&E retirement plan at the time of sale is relevant to determining the amount of recoverable
damages, if any, sustained by Plaintiff after the sale of the retirement plan.
Based on the foregoing, the Motion is granted with regard to Interrogatory No. 15. A
supplemental response must be provided within 14 days of the date of this Order.
16.

Request for Production No. 2

REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2:
Please provide a copy of any and all payment agreement(s) or fee schedule(s) in
effect between 2004 to the present in any way pertaining to money, fees,
compensation or revenue to be paid to Paul Cangelosi in connection with the
H&E Equipment Services, Inc. 401(k) Profit Sharing Plan.
RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2:
Please see Exhibits 1-21 produced in response to the discovery requests
propounded on NYLIFE Securities, LLC.
Plaintiff argues that the 2,000 pages of documents produced “buries the response in
voluminous and indiscriminate document production.” (R. Doc. 23-1 at 16). In response,
NYLIM represents that the “response is complete and correct.” (R. Doc. 48 at 15).
Plaintiff provides no specifics regarding why the production is deficient. The Court notes
that Request for Production No. 2 covers a 12-year time frame and seeks “any and all”
documents “in any way” pertaining to money, fees, compensation or revenue. Plaintiff

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acknowledges that the response he seeks is contained in the production. He does not point to the
production of any specific non-responsive information.
Based on the foregoing, the Motion is denied with regard to Request for Production No.
2.
17.

Request for Production No. 4

REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4:
Please provide a copy of any payment agreement(s) or fee schedules(s) in effect
between 2004 to the present in any way pertaining to money, fees, compensation
or revenue to be paid to Paul Cangelosi in connection with the sale of securities
for or on behalf of the H&E Equipment Services, Inc. 40l(k) Profit Sharing Plan.
RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4:
Please see Exhibits 1-9 produced in response to the discovery requests
propounded on NYLIFE Securities, LLC.
The language of this request for production, and the response by NYLIM, is subsumed by
that of Request for Production No. 2. Furthermore, in his memorandum, Plaintiff appears to
incorrectly discuss a request for production sent to NYLIFE Securities, as opposed to the
foregoing request to response regarding NYLIM. (R. Doc. 23-1 at 16-17).
Based on the foregoing, the Motion is denied with regard to Request for Production No.
4.
18.

Request for Production No. 5

REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5:
Please provide a copy of any and all emails, correspondence, notes, memoranda,
and/or writing or recording of any kind or nature, sent or received by or on behalf
of New York Life Investment Management, LLC in any way pertaining to the
H&E Equipment Service’s Inc. 401(k) Profit Sharing Plan.
RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5:
Defendant objects to this discovery on the grounds and to the extent it is overly
burdensome and not reasonably limited in scope. Subject to and without waiving
said objection, please see Exhibits 1-21 produced in response to the discovery
requests propounded on NYLIFE Securities, LLC.

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Plaintiff argues that NYLIM has hid its response to this request in the referenced
productions. (R. Doc. 23-1 at 17). In response, NYLIM stands by its objections, further
representing that it has located over 36,000 e-mails that are responsive to the request as written.
(R. Doc. 48 at 16). NYLIM further represents that its counsel contacted Plaintiff’s counsel “to
conference about the large production and confer to possibly target the search terms to obtain a
smaller number of e-mails” but Plaintiff’s counsel declined to confer on the issue and in fact
requested additional search terms. (R. Doc. 48 at 16).
Neither party has indicated to the Court what search terms were used to locate relevant emails. The parties have not provided the Court with details on how searches have been
conducted and how it was determined that certain documents were responsive to this request. As
stated, the Court finds the request for production to be overly broad as it is not limited to
documents in the possession, custody, or control of NYLIM that concern both Plaintiff and the
H&E retirement plan. Accordingly, the Court will limit the request to documents in the
possession, custody, and control of NYLIM pertaining both to Paul Cangelosi and the H&E
Equipment Services, Inc. Profit Sharing Plan. Plaintiff has also failed to demonstrate why a
request that results in 36,000 e-mails is appropriate and why he was unwilling to confer to reduce
the request. Without more information, and due to an apparent lack of cooperation between the
parties, the Court cannot determine what further limitations are appropriate.
Based on the foregoing, the Motion is granted in part and denied in part with regard to
Request for Production No. 5. The parties are to meet-and-confer to discuss the collection and
production of e-mails and other documents responsive to this request for production and
consistent with the proportionality considerations of Rule 26 within 14 days of the date of this
Order.

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19.

Request for Production No. 6

REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6:
Please provide a copy of any and all emails, correspondence, notes, memoranda,
text messages, and/or writings or recordings of any kind or nature pertaining to
Paul Cangelosi.
RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6:
Defendant objects to this discovery on the grounds and to the extent it is overly
burdensome and not reasonably limited in scope. Subject to and without waiving
said objection, please see Exhibits 1-21 produced in response to the discovery
requests propounded on NYLIFE Securities, LLC.
The Court finds the instant request for documents to be overly broad. To the degree this
request for production can be narrowed, it is completely subsumed by Request for Production
No. 5 as limited by the Court above.
Based on the foregoing, the Motion is denied with regard to Request for Production No.
6.
20.

Request for Production No. 7

REQUEST FOR PRODUCTION OF DOCUMENTS NO. 7:
Please produce a copy of any and all emails, correspondence, notes, memoranda,
text messages, and written or recorded communications with H&E Equipment
Services, Inc. or any agent or representative thereof, from 2004 to the present.
RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 7:
Please see Response to Request for Production No. 6.
The Court finds the instant request for documents to be overly broad. To the degree this
request for production can be narrowed, it is completely subsumed by Request for Production
No. 5 as limited by the Court above.
Based on the foregoing, the Motion is denied with regard to Request for Production No.
7.

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21.

Request for Production No. 8

REQUEST FOR PRODUCTION OF DOCUMENTS NO. 8:
Please provide a copy of any and all written contracts and/or agreements of any
kind or nature between New York Life Investment Management, LLC and each of
the following:
(a) New York Life Insurance Company;
(b) NYLIFE Securities, LLC;
(c) Peter M. Kirkfield;
(d) John Hancock Financial; and
(e) John Hancock Retirement Plan Services, LLC,
in any way related to the H&E Equipment Services, Inc. 401(k) Profit Sharing.
RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 8:
Defendant objects to this discovery as improper on the grounds and to the extent it
seeks documents or information that is neither relevant to the claims or defenses
of any party, nor reasonably calculated to lead to the discovery of admissible
evidence. Defendant also objects to this discovery as improper on the grounds and
to the extent that it seeks documents that contain confidential and proprietary
information, the disclosure of which may subject Defendant, to competitive
disadvantage.
Plaintiff argues he seeks relevant information, and Plaintiff argues he seeks relevant
information, and NYLIM should be ordered to produce documents as well as a privilege log if
applicable. (R. Doc. 23-1 at 19). In response, NYLIM argues that the request for production
seeks “documents or information that is neither relevant to the claims or defendants of any party,
not reasonably calculated to lead to the discovery of admissible evidence.” (R. Doc. 48 at 17).
NYLIM otherwise argues that the documents sought contain confidential and proprietary
information.
The Court finds the request to be overly broad as stated. The Court will limit the request
to any and all agreements and/or contracts between NYLIM and the listed entities to the extent
they discuss the handling of compensation and/or distribution of revenue in any way related to
the H&E retirement plan.

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Based on the foregoing, the Motion is granted in part and denied in part with regard to
Request for Production No. 8. A supplemental response must be provided within 14 days of the
date of this Order.
22.

Request for Production No. 9

REQUEST FOR PRODUCTION OF DOCUMENTS NO. 9:
Please provide a copy of the sale documents relating to the sale of New York Life
Retirement Services and/or New York Life Investment Management, LLC.
RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 9:
Defendant objects to this discovery as improper on the grounds and to the extent it
seeks documents or information that is neither relevant to the claims or defenses
of any party, not reasonably calculated to lead to the discovery of admissible
evidence. Defendant also objections to this discovery as improper on the grounds
and to the extent it seeks documents that contain confidential and proprietary
information, the disclosure of which may subject Defendant, to competitive
disadvantage.
Plaintiff argues he seeks relevant information, and NYLIM should be ordered to produce
documents as well as a privilege log if applicable. (R. Doc. 23-1 at 19). In response, NYLIM
that the request for production seeks “documents or information that is neither relevant to the
claims or defendants of any party, not reasonably calculated to lead to the discovery of
admissible evidence.” (R. Doc. 48 at 18). NYLIM otherwise argues that the documents sought
contain confidential and proprietary information.
The Court finds the request to be overly broad as stated. NYLIM need only produce the
requested sale documents to the extent they contain any agreements regarding the valuation of
the H&E retirement plan as a component to the sale or any decision concerning Plaintiff’s
compensation or continued involvement with the H&E retirement plan. To the extent any sale
documents to be produced contains confidential information, NYLIM may seek an appropriate
protective order.

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Based on the foregoing, the Motion is granted in part and denied in part with regard to
Request for Production No. 9. A supplemental response must be provided within 14 days of the
date of this Order.
III.

Conclusion
For the foregoing reasons,
IT IS ORDERED that Plaintiff’s Motion to Compel (R. Doc. 23) is GRANTED IN

PART and DENIED IN PART consistent with the terms of this Order. The parties shall bear
their own costs. Counsel is advised that prior to seeking any relief on a discovery issue in this
matter, the attorneys are required first to confer in an attempt to resolve such dispute without
court intervention. Should the parties be unable to resolve the dispute, any Rule 37 certificate
shall specifically set forth (1) how the conference was scheduled and agreed upon, (2) who
participated in the conference, (3) when the conference took place, (4) whether the conference
was conducted by phone or in person, (5) the duration of the conference, (6) the specific,
itemized topics that were addressed at the conference, and (7) whether any issues were resolved
by the parties.
The parties shall also confer as to whether any protective order shall be issued to protect
the dissemination of any proprietary or confidential information to be provided in this matter and
consistent with this Order.
Signed in Baton Rouge, Louisiana, on September 15, 2016.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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