U.S. Bank National Association v. Triaxx Asset Management LLC et al

Filing 325

ORDER RE INTERROGATORIES re: 306 LETTER MOTION for Conference addressed to Magistrate Judge Barbara C. Moses from Anil K. Vassanji dated February 24, 2020. filed by Phoenix Real Estate Solutions Ltd., Triaxx Asset Management LLC. For the reasons set forth above, the TAM Parties' letter-motion (Dkt. No. 306) is GRANTED to the extent that PIMCO must promptly supplement its interrogatory responses to identify the decisionmakers who approved each of the objections underlying the interpleader claims in this action, and otherwise DENIED. SO ORDERED. (Signed by Magistrate Judge Barbara C. Moses on 11/30/2020) (ks)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

11/30/2020

U.S. BANK NATIONAL ASSOCIATION,
Plaintiff,
-against-

18-CV-4044 (BCM)
ORDER RE INTERROGATORIES

TRIAXX ASSET MANAGEMENT LLC,
et al.,
Defendants.
BARBARA MOSES, United States Magistrate Judge.
By letter-motion dated February 24, 2020 (TAM Ltr.) (Dkt. No. 306), defendants Triaxx
Asset Management LLC (TAM) and Phoenix Real Estate Solutions Ltd. (Phoenix) (collectively
the TAM Parties) sought an order compelling defendant Pacific Investment Management
Company, LLC (PIMCO) to answer five interrogatories, all of which asked PIMCO to identify
various persons who, according to the TAM Parties, are likely to have "knowledge relevant to the
subject matter of the action." TAM Ltr. at 2 (quoting Local Civil Rule 33.3(a)). 1 In its initial
written responses, PIMCO refused to answer any of the five. See TAM Ltr. Ex. 3.
On February 27, 2020, PIMCO filed an opposition letter-brief (PIMCO Ltr.) (Dkt. No. 309)
promising an answer to Interrogatories No. 1 and 2 but standing on its objections to Interrogatories
No. 3-5. On March 2, 2020, the TAM Parties filed a reply letter (TAM Reply Ltr.) (Dkt. No. 311),
stating that PIMCO had "identified one person . . . with relevant knowledge" but that its response
remained inadequate. TAM Reply Ltr. at 1-2. 2

1

The TAM Parties sought the same relief, with respect to a similar set of interrogatories, against
defendant Goldman Sachs & Co. LLC (GS&Co.) Since then, however, GS&Co. has dismissed its
claims in this action (Dkt. No. 321) and the TAM Parties have withdrawn the motion to compel as
against GS&Co. (Dkt. Nos. 320, 322.)
2

It is not clear whether PIMCO served a further written response containing this information or
communicated it informally. No supplemental written interrogatory responses were submitted.

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No conference is required. The TAM Parties' letter-motion will be granted in part and
denied in part as follows.
Interrogatory No. 1 asks PIMCO to "[i]dentify each person who, during the period from
2006 to the present, has worked in PIMCO’s 'Securitized Debt' group, as that term is used on the
web page found at https://www.pimco.com/en-us/experts/giang-bui, or any predecessor or
successor thereof." The web address contained within the interrogatory points to the biography of
Giang Bui, whose title is "Portfolio Manager, Securitized Debt," and who is further described as
an "executive vice president in the Newport Beach office" who joined PIMCO in 2000 and serves
as "a portfolio manager and trader of securitized debt instruments, focusing on collateralized loan
obligations (CLOs), asset-backed collateralized debt obligations, and off-the-run sectors within
structured products." Perhaps not surprisingly, the one person identified by PIMCO in response to
this interrogatory was Ms. Bui. TAM Reply Ltr. at 1.
The threshold question here is whether the information sought is nonprivileged, "relevant
to any party's claim or defense," and "proportional to the needs of the case." Fed. R. Civ. P.
26(b)(1). As Local Rule 33.3(a) recognizes, the identity of "witnesses with knowledge" of such
information presumptively meets the relevance prong of the test. The parties disagree, however,
as to whether every member of Ms. Bui's group has or is likely to have such knowledge. 3 The
TAM Parties reason that since Ms. Bui "worked with others on matters concerning the Triaxx
CDOs," "[o]ther employees who worked in the same group . . . likely have knowledge of PIMCO's

3

They also disagree about whether PIMCO has a Securitized Debt Group. See PIMCO Ltr. at 12. However, PIMCO did not raise that objection in its written responses, or during the parties' premotion meet-and-confer, TAM Reply Ltr. at 2, and the TAM Parties now take the position that if
there is no Securitized Debt group, they will accept information concerning everyone "in the same
group as Ms. Bui." Id. The outcome of Interrogatory No. 1 therefore will not turn on the precise
title of Ms. Bui's group.
2

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decisions to buy and hold the notes" issued by those CDOs (the Notes), as well as "Phoenix's
engagement and work on behalf of the CDOs, and PIMCO's awareness of litigation recoveries."
TAM Reply Ltr. at 1-2.
I am not persuaded. The TAM Parties' argument is based on two layers of speculation:
first, that because Ms. Bui worked on unidentified "matters concerning the Triaxx CDOs," she has
knowledge of the actual claims and defenses in this case, 4 and second, that everyone else in her
group (the name, size, location, and organization of which is unknown) "likely" has the same
knowledge. Absent a more convincing showing, I will not require PIMCO to reveal its employee
directory to the TAM Parties.
Interrogatory No. 2 asks PIMCO to "[i]dentify each person who was involved in Your
decision to purchase, sell, or hold any Notes." The TAM Parties explain that "persons with
knowledge of the Noteholders' decisions to buy and hold the Triaxx CDO notes can speak to the
validity of the Noteholders' allegations that Phoenix was not properly engaged or paid; the
Movants' affirmative defenses that the Noteholders and the Trustee ratified Phoenix’s engagement;
and Phoenix's crossclaims for unjust enrichment, promissory estoppel, and quantum meruit based
on the significant benefits to the CDOs and the Noteholders, resulting from Phoenix's work." TAM
Ltr. at 3.
Once again, I am not persuaded that the interrogatory as written meets the basic relevance
standard of Rule 26(b), which is the TAM Parties' burden, see Chen-Oster v. Goldman, Sachs &
Co., 293 F.R.D. 557, 561 (S.D.N.Y. 2013), and which – although not a heavy one – must be met

4

Under Rule 26(b), as most recently amended in 2015, is is not enough that the proposed discovery
be relevant to the "subject matter" of the action; it must be relevant to the actual claims and
defenses pleaded by the parties. See Fed. R. Civ. P. 26(b) advisory committee note to 2015
amendment (noting that the amendment "deleted the former provision authorizing the court . . . to
order discovery of any matter relevant to the subject matter involved in the action").
3

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before the Court considers privilege or proportionality. See Shaub & Williams, L.L.P. v. Augme
Techs., Inc., 2014 WL 1033862, at *4 (S.D.N.Y. Mar. 17, 2014). At bottom, I am not convinced
that a person "involved" in buying or selling Notes is for that reason likely to be knowledgeable
about, for example, the highly technical legal questions underlying PIMCO's position that Phoenix
"was not properly engaged or paid." Even assuming, arguendo, that some of the PIMCO personnel
responsible for buying or selling Notes could "speak to" one or more issues genuinely relevant to
the parties' claims and defenses, I would find the interrogatory overbroad, disproportional, and
somewhat difficult to apply insofar as it asks PIMCO to disclose the names of everyone "involved"
in such decisions in any capacity.
PIMCO states that the "trading decisions with respect to the Notes resided with the
Portfolio Manager identified in PIMCO's initial disclosures." PIMCO Ltr. at 2. To the extent they
have not already done so, the TAM Defendants may examine that person at deposition, and on that
basis (or perhaps on the basis of information learned pursuant to Rule 30(b)(6) or from other
sources) may well identify other PIMCO personnel with discoverable knowledge, or serve a more
tailored interrogatory. I will not, however, require PIMCO to respond further to Interrogatory No.
2 as written.
Interrogatories No. 3-5 ask PIMCO to "[i]dentify each person who reviewed or approved"
the three objections that were sent by PIMCO's outside counsel to plaintiff U.S. Bank National
Association, as Trustee of the Triaxx CDOs (the Trustee), on May 2, 2018, May 18, 2018, and
February 14, 2019, and that underlie the three interpleader claims now before the Court (as well
as PIMCO's counterclaim to the res). PIMCO claims that this information is irrelevant, because
there is no dispute as to the existence or content of the objections, and that it is shielded from
discovery by the attorney-client privilege and the work product doctrine, because the objections

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were the "culmination of a legal process" and PIMCO reasonably anticipated litigation when they
were being prepared. PIMCO Ltr. at 2-3. As to relevance, the TAM Parties respond that the validity
of the interpleader claims (which they have challenged pursuant to Fed. R. Civ. P. 12(c)) depends
on the Trustee's "risk of liability," which in turn "depends in part on whether the Noteholders
actually intend to sue the Trustee, and whether their objections were genuine." TAM Reply Ltr. at
2. As to privilege, the TAM Parties argue that while the content of confidential communications
between PIMCO's outside counsel and their client representatives may be privileged, the identities
of those client representatives – that is, individuals who "reviewed or approved" the objections –
cannot be withheld on that basis. TAM Reply Ltr. at 2-3.
The TAM Parties are half-right on the relevance point. The Trustee's "risk of liability" turns
on whether the interpleader plaintiff – here, the Trustee – had "a real and reasonable fear of double
liability or vexatious, conflicting claims," Madison Stock Transfer, Inc. v. Exlites Holdings Int'l,
Inc., 368 F. Supp. 3d 460, 476 (E.D.N.Y. 2019) (quoting Hartford Life Ins. Co. v. Simonee, 2015
WL 8490998, at *3 (E.D.N.Y. Dec. 10, 2015)), not whether the competing claimants – here,
including PIMCO – were or are planning, subjectively, to carry through with whatever threats they
made or implied. However, the PIMCO decisionmakers who signed off on the objection letters
and email may well possess discoverable information going to related issues such as whether there
were any "agreements between the Noteholders and the Trustee." TAM Reply Ltr. at 2. The
individuals who made the decision to object are also likely (in any event, more likely than the
individuals who were involved only in buying and selling Notes) to be able to "speak to the validity
of the Noteholders' allegations" underlying PIMCO's objections. TAM Ltr. at 3.
The TAM Parties are also correct with regard to the attorney-client privilege and the work
product doctrine. The identity of a lawyer's client is ordinarily not shielded by either the attorney

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client privilege or the work product doctrine. See, e.g., Bank Brussells Lambert v. Credit Lyonnais
(Suisse), 220 F. Supp. 2d 283, 288 (S.D.N.Y. 2002) ("It is well-established in the Second Circuit
that a client's identity is not protected by the attorney-client privilege."); HSH Nordbank AG New
York Branch v. Swerdlow, 259 F.R.D. 64, 69 n.5 (S.D.N.Y. 2009) ("[T]here is no privilege as to a
client's identity."). PIMCO has not identified any authority, and the Court is aware of none, that
would suggest a different rule where, as here, the client is a corporation, which necessarily speaks
to its attorney through one or more officers, directors, or employees. Thus, while I will not require
PIMCO to disclose the names of everyone who "reviewed" the three objections (a group which
could extend to multiple lawyers and clerical personnel, both in-house and employed by the
lawyers who signed the objections), PIMCO must identify the decisionmakers who "approved" the
three objections sent by its outside counsel to the Trustee.
For the reasons set forth above, the TAM Parties' letter-motion (Dkt. No. 306) is
GRANTED to the extent that PIMCO must promptly supplement its interrogatory responses to
identify the decisionmakers who approved each of the objections underlying the interpleader
claims in this action, and otherwise DENIED.
Dated: New York, New York
November 30, 2020
SO ORDERED.

________________________________
BARBARA MOSES
United States Magistrate Judge

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