Transamerica Life Insurance Company v. Caramadre et al

Filing 116

MOTION to Compel Defendant Estate Planning Resources to Respond to Interrogatories by Western Reserve Life Assurance Co. of Ohio, Transamerica Life Insurance Company, Western Reserve Life Assuance Co. of Ohio. Responses due by 10/13/2011 (Attachments: #1 Exhibit Defendant Estate Planning Resources, Inc.'s Answer to Plaintiff's First Set of Interrogatories)Associated Cases: 1:09-cv-00470-S -DLM et al.(Magratten, Brooks)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
WESTERN RESERVE LIFE ASSURANCE
CO. OF OHIO,
Plaintiff,
vs.
JOSEPH CARAMADRE, RAYMOUR
RADHAKRISHNAN, ESTATE PLANNING
RESOURCES, INC., HARRISON CONDIT,
and FORTUNE FINANCIAL SERVICES,
INC.,
Defendants;
____________________________________
TRANSAMERICA LIFE INSURANCE
COMPANY,
Plaintiff,
vs.
JOSEPH CARAMADRE, RAYMOUR
RADHAKRISHNAN, ESTATE PLANNING
RESOURCES, INC., ESTELLA
RODRIGUES, EDWARD MAGGIACOMO,
JR., LIFEMARK SECURITIES CORP., and
PATRICK GARVEY,
Defendants;
____________________________________
WESTERN RESERVE LIFE ASSURANCE
CO. OF OHIO,
Plaintiff,
vs.
JOSEPH CARAMADRE, RAYMOUR
RADHAKRISHNAN, ESTATE PLANNING
RESOURCES, INC., ADM ASSOCIATES,
LLC, EDWARD HANRAHAN, THE
LEADERS GROUP, INC., and CHARLES
BUCKMAN,
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C.A. No. 09-470-S

C.A. No. 09-471-S

C.A. No. 09-472-S

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Defendants;
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____________________________________
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WESTERN RESERVE LIFE ASSURANCE )
CO. OF OHIO,
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Plaintiff,
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vs.
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JOSEPH CARAMADRE, RAYMOUR
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RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., DK LLC, EDWARD
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HANRAHAN, THE LEADERS GROUP,
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INC., and JASON VEVEIROS,
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Defendants;
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WESTERN RESERVE LIFE ASSURANCE )
CO. OF OHIO,
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Plaintiff,
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vs.
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JOSEPH CARAMADRE, RAYMOUR
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RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., NATCO PRODUCTS )
CORP., EDWARD HANRAHAN, and THE )
LEADERS GROUP, INC.,
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Defendants;
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TRANSAMERICA LIFE INSURANCE
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COMPANY,
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Plaintiff,
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vs.
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LIFEMARK SECURITIES CORP., JOSEPH )
CARAMADRE, RAYMOUR
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RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC. and EDWARD
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MAGGIACOMO, JR.,
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Defendants; and
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C.A. No. 09-473-S

C.A. No. 09-502-S

C.A. No. 09-549-S

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____________________________________
WESTERN RESERVE LIFE ASSURANCE )
CO. OF OHIO,
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Plaintiff,
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vs.
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JOSEPH CARAMADRE, RAYMOUR
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RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., HARRISON CONDIT, )
and FORTUNE FINANCIAL SERVICES,
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INC.,
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Defendants.
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C.A. No. 09-564-S

PLAINTIFFS’ MOTION TO COMPEL DEFENDANT ESTATE PLANNING
RESOURCES TO RESPOND TO INTERROGATORIES
Plaintiffs, Western Reserve Life Assurance Co. of Ohio (“Western Reserve”) and
Transamerica Life Insurance Company (“Transamerica”) (together “Plaintiffs”), move to compel
defendant Estate Planning Resources (“EPR”) to respond to interrogatories propounded by
Plaintiffs in these seven related actions.
EPR has “decline[d] to respond” to any interrogatory based on the Court‟s Initial Case
Management Order filed September 13, 2010 (“ICMO”). See Exhibit A. Specifically, in
response to each interrogatory, EPR stated:
Because the only “officers” or “agents” of EPR who could possibly
answer this interrogatory on behalf of EPR are „Target Defendants‟
as designed by Footnote 2 of the [ICMO] . . ., EPR hereby declines
to respond to this interrogatory subject to Paragraph 5 of the
ICMO, which states that “no Target Defendant shall propound
interrogatories . . . nor shall any Target Defendant, whether on his
own behalf or on behalf of an organization . . . be required to
respond to any such interrogatories . . . until further order of the
Court. . . .”
Id.

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EPR‟s refusal to respond to interrogatories is not in accord with its obligations under Fed.
R. Civ. P. 33 or the terms of the ICMO. As is discussed more fully below, Rule 33 requires that
EPR designate an individual who can respond on behalf of the corporation even if certain
individuals can not be compelled to do so. Moreover, the ICMO does not exempt EPR from
discovery or excuse it from designating one of its attorneys, or another individual, to respond to
the interrogatories on behalf of the corporation.
ARGUMENT
Rule 33 provides that interrogatories propounded to a corporation “must be answered . . .
by any officer or agent, who must furnish the information available to the party.” “It is not
necessary that the agent be an officer or managing agent of the corporation.” Chatman v. Nat'l
R.R. Passenger Corp., 246 F.R.D. 695, 700 (M.D. Fla. 2007) (permitting corporate paralegal to
sign interrogatories). Indeed, corporations have wide latitude to exercise their “broad corporate
powers” to designate a person to verify and sign corporate interrogatory answers. United States
v. 42 Jars, More or Less, Bee Royale Capsules, 162 F.Supp. 944, 946 (D.C.N.J. 1958), aff‟d
United States v. 42 Jars, More or Less, Bee Royale Capsules, 264 F.2d 666 (3d Cir. 1959).
It is not necessary that the corporation designate an individual who has personal
knowledge of the information provided in response to interrogatories. To the contrary; Rule 33
requires that the agent “furnish the information available to the party” – i.e., the corporation.
Therefore, Rule 33 “expressly permits a representative of a corporate party to verify the
corporation's answers without personal knowledge of every response. . . .” Shepherd v. Am.
Broad. Companies, Inc., 62 F.3d 1469, 1482 (D.C. Cir. 1995). See also, General Dynamics
Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1210 (8th Cir.1973) (holding that a responding agent‟s
obligation “to furnish all information available to the corporation . . . was not delimited by his

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own personal knowledge of the situation”); Bee Royale Capsules, 264 F.2d at 670 (“the agent
who answers on behalf of the corporation does not need to have personal knowledge”).
Although an agent need not have personal knowledge of the information provided on
behalf of the corporation, the agent “must have a basis for signing the responses and for thereby
stating on behalf of the corporation that the responses are accurate.” Shepherd, 62 F.3d at 1482.
This requires that the agent obtain all information available to the responding corporation,
including, “books, records, other officers or employees, or other sources,” which is necessary for
the responding agent to “answer the interrogatories and sign them on behalf of the corporation
not himself.” In re Folding Carton Antitrust Litigation, 76 F.R.D. 417, 419 (N.D. Ill. 1977). See
also, General Dynamics Corp., 481 F.2d at 1210. In responding for the corporation, it also is
necessary for the agent to confer with counsel to ensure that all requested factual information is
provided completely and accurately. See Hickman v. Taylor, 329 U.S. 495, 504 (1947) (“A
party clearly cannot refuse to answer interrogatories on the ground that the information sought is
solely within the knowledge of his attorney.”); General Dynamics Corp., 481 F.2d at 1210
(requiring the responding agent to acquire “information possessed by . . . corporate counsel.”);
Shepherd, 62 F.3d at 1482 (“The representative may accomplish this through whatever internal
process the corporation has chosen, including discussions with counsel.”).
A corporation may not avoid responding to interrogatories simply because one or more of
its agents, employees or officers has invoked his Fifth Amendment privilege or is otherwise
shielded from verifying a corporation‟s interrogatory answers. See, e.g., U.S. v. Kordel, 397
U.S. 1, 8 (1970); United States v. 3963 Bottles, More or Less, Enerjol Double Strength, 265 F.2d
332, 336 (7th Cir. 1959); In re Folding Carton Antitrust Litigation, 76 F.R.D. at 419-20; Bee
Royal Capsules, 264 F.2d at 670. Unlike an individual, a corporation has no Fifth Amendment

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right to refuse to participate in discovery. Kordel, 397 U.S. at 8; Braswell v. United States, 487
U.S. 99, 116 (1988). Therefore, a corporation can not
“satisfy its obligation under Rule 33 simply by pointing to an agent
about to invoke his constitutional privilege. „It would indeed be
incongruous to permit a corporation to select an individual to
verify the corporation‟s answers, who because he fears selfincrimination may thus secure for the corporation the benefits of a
privilege it does not have.‟ Such a result would effectively permit
the corporation to assert on its own behalf the personal privilege of
its individual agents.” Id.
Kordel, 397 U.S. at 8 (quoting Enerjol Double Strength, 265 F.2d at 337).
Contrary to EPR‟s assertion, the Target defendants are not the “only” individuals “who
could possibly answer” the interrogatories. When, as here, a corporation can not force a
particular individual to provide interrogatory answers on its behalf, the corporation has an
affirmative “duty to appoint an agent who could, without fear of self-incrimination, furnish such
requested information as was available to the corporation.” Enerjol Double Strength, 265 F.2d at
336; U.S. v. 48 Jars, More or Less, of an Article of Drug Labeled Tranquilease, 23 F.R.D. 192,
196 (D.D.C. 1958).
Here, the ICMO does not afford any discovery immunity to EPR. Therefore, it must
comply with its obligation to designate an agent who can “gather and obtain . . . the information
necessary to answer the interrogatories and sign them on behalf of the corporation.” In re
Folding Carton Antitrust Litigation, 76 F.R.D. at 419-20. Rule 33 “has been uniformly
construed to authorize „answers by an attorney‟ for the party.” Wilson v. Volkswagen of Am.,
Inc., 561 F.2d 494, 508 (4th Cir. 1977) (citation omitted). See also, United States v. 42 Jars,
More or Less, Bee Royale Capsules, 264 F.2d 666, 670 (3d Cir. 1959) (“The corporation‟s
attorney will do”); Wright and Miller, 8B Fed. Prac. & Proc. Civ. § 2172 (3d ed.) (“Because the
rule authorizes either an officer or an agent to answer, it clearly allows answers by an attorney.”).
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EPR has the option to designate one of its attorneys to respond on its behalf without Fifth
Amendment concerns. See id. Alternatively, EPR could designate any individual to review
materials and confer with appropriate individuals, including EPR‟s counsel, in order to provide
complete and accurate answers on behalf of the company.
Because EPR has an affirmative obligation to designate an agent to respond on its behalf,
it can not avoid responding simply because it can not force a particular individual to do so. Like
the corporations attempting to avoid responding to discovery in the several cases cited herein,
EPR can not use protections extending to certain individuals as an excuse for its refusal to
provide discovery to Plaintiffs. EPR‟s discovery obligations under Rule 33 require that it
appoint an agent – such as its attorneys, or any other individual - to acquire all necessary
information and provide binding interrogatory answers for the company.
CONCLUSION
For the reasons set forth herein, Plaintiffs respectfully request that EPR be compelled to
respond to Plaintiffs‟ interrogatories within 20 days of hearing on this motion.
Respectfully submitted,
/s/ Brooks R. Magratten
Brooks R. Magratten, Esq., No. 3585
David E. Barry, Esq., pro hac vice admitted
Michael J. Daly, Esq. No. 6729
PIERCE ATWOOD LLP
Attorneys for Plaintiff
10 Weybosset St., Suite 400
Providence, RI 02903
[phone] [Tel.]
[phone] [Fax]
[e-mail]
[e-mail]
[e-mail]
Dated: September 26, 2011

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CERTIFICATION OF CONFERRAL:
I certify that, prior to filing this motion, counsel for Plaintiffs conferred with counsel for
EPR in an effort to resolve this issue without Court intervention.
/s/ Brooks R. Magratten

CERTIFICATE OF SERVICE
I certify that the within document was electronically filed with the clerk of the
court on September 26, 2011, and that it is available for viewing and downloading from the
Court‟s ECF system. Service by electronic means has been effectuated on all counsel of record.

/s/ Brooks R. Magratten

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