Transamerica Life Insurance Company v. Caramadre et al

Filing 119

REPLY to Response to Motion re (87 in 1:09-cv-00564-S-DLM) Response in Opposition to Motion, filed by All Plaintiffs. (Attachments: #1 Exhibit A - Transcript)Associated Cases: 1:09-cv-00470-S -DLM et al.(Daly, Michael)

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,
)
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
)
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,
)
INC.,
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Defendants.
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C.A. No. 09-564-S

PLAINTIFFS’ REPLY TO OBJECTION TO MOTION TO COMPEL DEFENDANT
ESTATE PLANNING RESOURCES TO RESPOND TO INTERROGATORIES
Defendant Estate Planning Resources (“EPR”) contends it should not respond to
Plaintiffs’ interrogatories because: 1) the Initial Case Management Order (“ICMO”) excuses its
sole employee and shareholder, Joseph Caramadre, from responding on behalf of the company;
and 2) “the law” excuses EPR from answering interrogatories because, it claims, no one can
respond for the corporation without subjecting himself to a “real and appreciable risk of self
incrimination.” See Memorandum of Law in Support of EPR’s Objection to Plaintiffs’ Motion to
Compel EPR to Respond to Interrogatories (hereafter “EPR Objection”), at 6-9 (filed 10/13/11).
EPR’s arguments are fundamentally flawed. First, the ICMO does not extend any protection or
privilege to EPR. Its inability to force Caramadre to sign EPR’s interrogatory answers does not
relieve it of its obligation to enlist another individual to do so. Second, “the law” does not
“protect” EPR because EPR has the means to respond to discovery even if Caramadre refuses to
participate.

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I. THE ICMO DOES NOT PROTECT EPR
It is undisputable that the ICMO affords no discovery protection to EPR. Its protections
extend only to the “Target” defendants and any parties who might receive discovery requests
from the Targets. Faced with this reality, EPR asks the Court to apply the “spirit” of the ICMO
to excuse it from participating in full discovery. See EPR Objection at pp. 4, 6-7.
EPR’s reliance on the alleged “spirit” of the ICMO is unavailing. Its contention directly
contradicts its arguments when EPR sought to compel Plaintiffs to respond to EPR’s
interrogatories. Then, Plaintiffs showed that a literal reading of the ICMO created an unfair
discovery “loophole” that would allow EPR to obtain discovery that Caramadre could not obtain
individually. EPR emphasized that it and Caramadre are different parties and urged the Court to
apply the literal terms of the ICMO despite the “loophole” because it was a negotiated
agreement. See EPR’s Memorandum in Support of its Objection to Plaintiff’s Motion for
Protective Order (“EPR Protective Order Objection”) at p. 6 (filed 12/10/10); EPR’s Response to
Plaintiff’s Objection to Magistrate Judge’s Order Denying Plaintiffs’ Motion for Protective
Order (“EPR Response to Magistrate Judge Appeal”) at pp. 4-7 (filed 1/31/11).
The Court agreed with EPR and directed Plaintiffs to answer EPR’s interrogatories. In so
ruling, the Court held that “the responsibility was on both sides to scrutinize the proposed
language to see if there were any loopholes in it and once they gave their agreement the order
was entered . . . .” See Exhibit A at p.26.
Now, because EPR tries to dodge Plaintiffs’ interrogatories, it reverses course and asks
the Court to modify the terms of the ICMO and “impose an ex post facto restriction” (to use the
phrase EPR championed in response to Plaintiff’s motion for protective order) on Plaintiffs’

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ability to obtain discovery.1 The ICMO affords no discovery protection to EPR and EPR should
not be permitted to claim additional protections “simply because [it] did not contemplate what [it
was] doing” when it agreed to the ICMO. Id.
Moreover, the “spirit” of the ICMO does not justify EPR’s refusal to provide
interrogatory answers. Plaintiffs are not using interrogatories to EPR as a backdoor way of
obtaining information from Caramadre. It is irrelevant to Plaintiffs whether EPR’s interrogatory
answers are signed by Caramadre or any other individual. Indeed, as Plaintiffs have argued,
several alternatives are available to EPR. The “spirit” of the ICMO requires that EPR make
every reasonable effort to respond to discovery that is plainly appropriate under the ICMO and
the discovery rules.
Finally, through its objections, EPR seeks to unfairly manipulate the discovery process.
Previously, in response to Plaintiff’s concerns about being forced to participate in one-sided
discovery, EPR stated that “there is nothing to prevent Plaintiffs from serving interrogatories
upon EPR that could be answered by another one of EPR’s officers or agents, . . . [but] [b]ecause
Plaintiffs have not pursued this option, there is no way of knowing what answers they might
receive from EPR were they to try.” See EPR Response to Magistrate Judge Appeal at p.6.
Now, however, EPR states that no person can respond for it without jeopardizing his Fifth
Amendment rights. It offers this response to even the most benign interrogatories, which inquire
into, among other things, information that EPR has already provided to law enforcement
authorities. See Interrogatory No. 11. It is patent that EPR never had any intention of providing

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EPR previously argued that “[t]he Court should not allow Plaintiffs to impose an ex post facto
restriction upon EPR simply because they did not contemplate what they were doing.” EPR
Response to Magistrate Judge Appeal at p. 7.
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interrogatory answers as it previously represented – regardless of the substance of the
interrogatory. Equity counsels against EPR’s current effort to evade discovery.
II.

“The Law” Does Not Insulate EPR From Participating in Discovery

The case law EPR cites offers no support for its position. EPR suggests that precedent
supports a bar against Plaintiff’s discovery during the ongoing criminal investigation into Mr.
Caramadre. Significantly, however, Mr. Caramadre has not invoked the Fifth Amendment.
When, as here, an individual has not invoked the Fifth Amendment, the Court need not concern
itself with the balancing of an individual’s right to silence and a litigant’s right to obtain
discovery. United States v. Kordel, 397 U.S. 1, 8-9 (1970).
EPR incorrectly suggests that the Supreme Court in Kordel specified that “the
appropriate” remedy in a situation such as this is “a protective order . . . postponing civil
discovery until termination of the criminal action.” EPR Objection at 8 (quoting Kordel, 397
U.S. at 8-9). EPR misconstrues Kordel. In that case, rather than announcing any concrete rule,
the Supreme Court merely “assum[ed]” that a stay of discovery would be appropriate if “no one
can answer the interrogatories addressed to the corporation without subjecting himself to a ‘real
and appreciable risk of self-incrimination.’” Kordel, 397 U.S. at 8-9 (emphasis added). The
Court specified that it “need not decide this troublesome question” because the corporate
representative never actually invoked the Fifth Amendment. Id. (emphasis added). Like the
corporate principals in Kordel, neither Caramadre, nor any other party to this case has asserted
his Fifth Amendment rights. Kordel supports Plaintiffs’ right to obtain interrogatory answers
from EPR.
Even if Caramadre eventually invokes the Fifth Amendment, EPR still could not
piggyback on his invocation to evade its discovery obligations. As discussed in Plaintiffs’

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Original Memorandum, Fifth Amendment protections do not extend to companies and EPR
could designate any other individual to sign its interrogatory responses.
EPR suggests that if Mr. Caramadre refuses to provide information, then it will be unable
to provide a response because Mr. Caramadre is the sole source of the information for the
company and, therefore, any agent would effectively be unable to acquire the facts necessary for
the company to compile a response. This argument is unpersuasive for many reasons.
There are several sources of information available to whatever agent EPR designates that
will allow the company to respond to interrogatories. Basic information - such as identification
of payments, employees and officers (as requested in interrogatories 5 and 10), could be obtained
by reviewing company records.
Additional information could be obtained by speaking with individuals other than
Caramadre or any other named Target who may refuse to provide information pursuant to the
ICMO. EPR’s many attorneys undoubtedly have knowledge about the facts of these cases. Such
knowledge is imputed to the company and must be disclosed to - and by - any individual
designated to respond to the interrogatories. See, e.g., Long v. Joyner, 574 S.E.2d 171, 175 (N.C.
App. 2002) (affirming sanctions for failure to respond to interrogatories seeking information
known by attorney because “the knowledge of an attorney hired by a client and doing work on
behalf of that client is imputed to the client”); Lundin v. Stratmoen, 85 N.W.2d 828, 831-32
(Minn. 1957) (“knowledge of an attorney is imputed to his client so that, apart from privileged
matters, interrogatories, under Rule 33, must be answered where they are relevant, although the
party litigant to whom they are directed has no personal knowledge or information, if his
attorney has such knowledge or information. . . .”). There is no impediment to the disclosure of

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such information by EPR’s attorneys because the interrogatories do not seek disclosure of
privileged information. Id.
The fact that Caramadre retained the same attorneys to represent himself and EPR does
not allow him to direct counsel not to disclose information either directly in the form of
interrogatory answers or to another agent designated to respond for the company. Indeed, when
an attorney represents a corporation and the primary employees have invoked the Fifth
Amendment in response to discovery propounded to the company, the company must appoint the
attorney or another agent to disclose “information provided by the individual defendants.” City
of Chicago v. Reliable Truck Parts Co., Inc., No. 88C1458, 1989 WL 32923, *4 (N.D. Ill. Mar.
31, 1989). As the court recognized in Reliable Truck Parts, “the choice of counsel shouldn’t be
a weapon to frustrate the pleading or discovery process.” Id. See also, Central State’s,
Southeast and Southwest Areas Pension Fund v. Carstensen Freight Lines, Inc., No. 96C6252,
1998 WL 413490, *4 (recognizing the propriety of the appointment of a corporation’s attorney to
respond to interrogatories for the company when the company’s “sole shareholder, sole
employee and sole officer” invoked the Fifth Amendment); In re Folding Carton Antitrust
Litigation, 76 F.R.D. 417, 419 (N.D. Ill. 1977) (admonishing against counsel’s joint
representation of corporation and employee if employee’s invocation of the Fifth Amendment
conflicts with corporation’s interest and obligation to provide discovery).
Contrary to EPR’s assertion, an appropriate agent can be found to verify interrogatory
answers for the company. The agent may be any one of EPR’s attorneys, or another individual
who can obtain information from the attorneys. See, e.g., Reliable Truck Parts Co., Inc., 1989
WL 32923 at *4 ((N.D. Ill. Mar. 31, 1989).

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CONCLUSION
For the reasons set forth herein, as well as in their original memorandum, 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: October 24, 2011

CERTIFICATE OF SERVICE
I certify that the within document was electronically filed with the clerk of the
court on October 24, 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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