LSH CO et al v. AXA Equitable Life Insurance Company

Filing 204

MEMO ENDORSEMENT on 197 terminating 195 Letter Motion for Local Rule 37.2 Conference. ENDORSEMENT: Substantially for the reasons set forth above, AXA's letter motion is DENIED. AXA is granted a one-week extension of the deadline to respond to the interrogatories at issue. The Clerk of Court is directed to terminate 17-CV-4767, Docket No. 265, and 18-CV-2111, Docket No. 195, and to docket this in both cases. SO ORDERED. (Signed by Judge Jesse M. Furman on 3/18/2019) (ne)

March 13, 2019
Orrick, Herrington & Sutcliffe LLP

VIA ECF

Hon. Jesse M. Furman
United States District Court
Southern District of New York
40 Foley Square
New York, NY 10007

2050 Main Street
Suite 1100
Irvine, CA 92614-8255
[phone]
orrick.com
Khai LeQuang
E [e-mail]
D [phone]
F [phone]

Re: EFG Bank AG, Cayman Branch, et al. v. AXA Equitable Life Ins. Co., 17 Civ. 4767 (JMF)
(S.D.N.Y.) (“EFG Action”) [rel. 16 Civ. 740, 17 Civ. 4803, 17 Civ. 9355, 18 Civ. 2111, 18
Civ. 10730] – Opposition to AXA’s Letter-Motion Requesting a Protective Order Re:
Interrogatories
Dear Judge Furman:
Plaintiffs in the EFG and LSH Actions (“EFG Plaintiffs” and “LSH Plaintiffs,” referenced
herein together as “Plaintiffs”) submit this joint response to the letter motion for protective order
submitted by Defendant (“AXA”) in the above-captioned action on March 8, 2019 (ECF No. 264)1
and re-filed on March 11, 2019 (ECF No. 265). AXA’s letter motion unnecessarily complicates a
straightforward issue – whether plaintiffs in the Related Actions2 are limited to serving only joint
interrogatories, or whether they are also permitted to serve individual interrogatories that either:
(a) solely relate to issues in that individual plaintiff’s case; or (b) relate to joint issues but are not
interrogatories that all plaintiffs agree to serve jointly. Plaintiffs submit that both joint and
individual interrogatories are contemplated and permitted under the Court’s Orders and the Federal
Rules of Civil Procedure.
In its December 20, 2018 Order, the Court specifically stated that Plaintiffs may serve upon
AXA “a total of thirty joint interrogatories.” ECF No. 261 at 4 (emphasis in original). The
Order did not, however, limit Plaintiffs to serving only joint interrogatories. Moreover, the Court’s
Civil Case Management Plan and Scheduling Order (“CMO”) specifically contemplated that there
would be both joint and individual discovery requests, noting:
All Plaintiffs are directed to coordinate discovery schedules and
deadlines with each other and with Defendant in all Actions to the
extent practicable. Plaintiffs in all Actions will endeavor, to the
extent practicable and without prejudice to the rights of the parties,
to identify “joint discovery requests,” which shall be applicable to

1

All references to docket entries in this opposition letter shall refer to such entries on the docket of the EFG Action.
The Related Actions include the civil actions listed in Schedule A of the Court’s December 20, 2018 Order. ECF
No. 261.

2

March 12, 2019
Page 2
all Actions, and “separate discovery requests,” which shall be
unique to a particular Action or Actions.
ECF No. 92 at ¶9a. Plaintiffs have done exactly this. Joint discovery requests are identifiable by
the word “Joint” contained in the title of the request, and by the fact that counsel for multiple
plaintiffs have signed the request (or later agreed to treat the request as joint). Separate discovery
requests are identifiable by the absence of the word “Joint” in the title of the request and by the
fact that counsel for only a single plaintiff has signed the request.3
Plaintiffs in the Related Actions have done their best to abide by the mandate to pursue
discovery jointly to the extent practicable so as to lessen the burden on AXA. Indeed, the fact that
Plaintiffs have “acted in unison” by serving 28 joint interrogatories underscores their efforts to
avoid duplication of discovery efforts. But joint interrogatories are not an appropriate vehicle for
discovery related to only one plaintiff’s policies, damages, or legal theories.4 Even in instances of
potential overlap, such as when an affirmative defense is asserted across all Related Actions,
plaintiffs have no way of knowing whether AXA is asserting an affirmative defense based on facts
that are applicable to all plaintiffs, or based on different facts for each individual plaintiff.
Furthermore, because the various plaintiff groups do not have identical facts underlying their
claims, nor are they pursuing identical claims in their respective actions, their discovery focus is
not always 100% aligned.5 The fact that these actions are being coordinated for pretrial purposes
does not mean that the individual plaintiffs groups should be deprived of the ability to conduct
their own discovery in their own action to support their own theories of the case.
To the extent AXA is arguing that Plaintiffs are conspiring together to serve voluminous
discovery on AXA, it should be noted that EFG Plaintiffs served a total of 18 individual
interrogatories and LSH Plaintiffs served a total of 23 individual interrogatories. If Plaintiffs’ goal
was to burden AXA with extensive and unnecessary discovery requests, they would have each
served the full 25 individual interrogatories permitted under the Federal Rules. Instead, EFG

3

AXA concedes that the CMO contemplates “separate” discovery requests, but insists that the CMO does not
specify the number of separate requests allowed. Although this is true, it is only logical that where the CMO does
not address an issue, the Federal Rules of Civil Procedure control. The Federal Rules of Civil Procedure permit
each party to serve 25 interrogatories on any other party. Fed. R. Civ. P. 33.
4
For example, EFG Plaintiffs’ first set of interrogatories specifically asked about table shaving directed at EFG
Plaintiffs’ policies, and EFG Plaintiffs’ second set of interrogatories focused on affirmative defenses included in
AXA’s Answer to EFG Plaintiffs’ Fourth Amended Complaint, as well as damages figures specific to EFG
Plaintiffs’ policies. See Exs. A and B. Similarly, LSH’s first and second set of interrogatories asked about subjects
specific to LSH, such as the commissions earned by agents and brokers on LSH Plaintiffs’ policies or whether AXA
contends that any such policies are void or voidable, or matters that are of particular interest to LSH, such as AXA’s
knowledge that AULII policies would be sold to institutional investors such as LSH. See Exs. C and D.
5
The fact that some of Plaintiffs’ individual interrogatories could have been served as joint interrogatories does not
mean that they must have been served jointly. With different claims and legal theories among the cases, the plaintiff
groups are focused on different aspects of the cases, inevitably leading to discovery requests that one plaintiff group
is interested in serving but another is not.

March 12, 2019
Page 3
Plaintiffs and LSH Plaintiffs served only what they each needed to support their individual cases
– no more and no less.
AXA’s letter motion boils down to an argument that it has received an excessive number
of interrogatories when both joint and separate interrogatories are added together. Notably, AXA
does not—and cannot—contend that Plaintiffs’ separate interrogatories are duplicative of the joint
interrogatories6 or irrelevant to the matters in dispute. But while the Court’s order encouraging
joint discovery requests was intended to protect AXA from duplication of efforts, it was not
intended to protect AXA from the fact that it is being sued by six different plaintiff groups in six
different actions. Any alleged discovery “barrage” is due solely to the fact that AXA is defending
against six actions, and each party in each of those actions has a right to pursue its own legal
theories, irrespective of the actions of the other parties. Furthermore, AXA is ill-positioned to
complain about a barrage of discovery requests when it has served, in only two of those six actions,
a total of 54 interrogatories,7 64 document requests, 215 requests for admission, 205 30(b)(6)
topics, and over 50 third-party subpoenas. 8 With regard to interrogatories alone, AXA is
effectively arguing that it can serve up to 25 interrogatories on each party, which would be well
over 150 total interrogatories, but that plaintiffs can only serve 30 total interrogatories across all
six actions.
Plaintiffs have participated in discovery in this matter according to their good faith
interpretation of the Court’s Orders and the Federal Rules of Civil Procedure, including with regard
to the number of joint and individual interrogatories permitted. Plaintiffs request that the Court
deny AXA’s motion for protective order as to the 16 interrogatories served by EFG Plaintiffs and
13 interrogatories served by LSH Plaintiffs on February 18.

6

AXA makes a vague claim that one of EFG Plaintiffs’ interrogatories is duplicative of a joint interrogatory, noting
that “’Self-Support’ tests have been the subject to one joint interrogatory.” ECF No. 265 at n.9. EFG’s
interrogatory on this subject, however, asks whether the “mortality assumptions AXA used for its self-support tests
for AULII were at all times reasonable” and to “state all facts upon which [AXA] base(s) this contention,” whereas
the joint interrogatory on this issue asks AXA to “Identify all actuarial models used for performing self-support and
lapse-support tests for AUL 2 policies between 2002 to the present.” Cf. Ex. B at Interrog. 15 and Ex. E at Interrog.
24. These interrogatories are not duplicative solely because they concern the same broad topic of self-support
testing.
7
AXA points out that the CMO provides that other than contention interrogatories, “[n]o other interrogatories are
permitted unless agreed to by the parties or court order.” ECF No. 92 at ¶9a. That is a curious statement
considering AXA has served dozens of non-contention interrogatories upon EFG and LSH without Plaintiffs’
agreement or court approval. See, e.g., Ex. F (Defendant’s First Set of Interrogatories to EFG Plaintiffs).
8
AXA served the following number of interrogatories: 25 on LSH Plaintiffs jointly, 23 on EFG Plaintiffs jointly, 2
on EFG, 2 on EAA Plaintiffs, and 2 on Wells Fargo as securities intermediary for EFG. AXA served the following
number of Requests for Production: 39 on LSH Plaintiffs jointly and 25 on EFG Plaintiffs jointly. AXA served the
following number of Requests for Admission: 46 on LSH, 62 on Wells Fargo as securities intermediary for LSH, 26
on EFG, 35 on EAA Plaintiffs, and 46 on Wells Fargo as securities intermediary for EFG. AXA served the
following number of 30(b)(6) topics: 47 on LSH, 38 on Wells Fargo as securities intermediary for LSH, 41 on EFG,
40 on EAA Plaintiffs, and 39 on Wells Fargo as securities intermediary for EFG. These figures count “joint”
requests only once.

March 12, 2019
Page 4
Respectfully Submitted,
/s/ Khai LeQuang
Khai LeQuang
cc:

David Gelfand ([e-mail]); Stacey Rappaport ([e-mail])
Dorit Ungar Black ([e-mail])

Substantially for the reasons set forth above, AXA's letter motion is DENIED.
AXA is granted a one-week extension of the deadline to respond to the
interrogatories at issue. The Clerk of Court is directed to terminate 17-CV-4767,
Docket No. 265, and 18-CV-2111, Docket No. 195, and to docket this in both
cases.
SO ORDERED.

March 18, 2019