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)

Case 1:09-cv-00471-S -DLM Document 86

Filed 03/04/11 Page 1 of 27 PageID #: 1392

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
WESTERN RESERVE LIFE ASSURANCE . CIVIL ACTION NOS. 09-00470-S-DLM
CO. OF OHIO
. 09-00471; 09-00472; 09-00473;
Plaintiff
. 09-00502; 09-00549; 09-00564
.
V.
. PROVIDENCE, RHODE ISLAND
. JANUARY 7, 2011
CONREAL LLC, et al
.
Defendant
.
. . . . . . . . . . . . . . . . .
TRANSCRIPT OF MOTIONS HEARING
BEFORE THE HONORABLE DAVID L. MARTIN
UNITED STATES MAGISTRATE JUDGE
APPEARANCES:
PIERCE ATWOOD LLP
BY: Brooks R. Magratten, Esq.
Michael J. Daly, Esq.
10 Weybosset Street, Suite 400
Providence, RI 02903
401-588-5166
[e-mail]
[e-mail]
HINCKLEY, ALLEN & SNYDER LLP
BY: Matthew H. Parker, Esq.
50 Kennedy Plaza, Suite 1500
Providence, RI 02903
401-274-2000
Anthony M. Traini, Esq.
56 Pine Street, Suite 200
Providence, RI 02903
401-621-4700
[e-mail]
R. Daniel Prentiss, Esq.
R. Daniel Prentiss, PC
One Turks Head Place, Suite 380
Providence, RI 02903
401-824-5150
[e-mail]
MARYANN V. YOUNG
Certified Court Transcriber
Wrentham, MA 02093
[phone]

Case 1:09-cv-00471-S -DLM Document 86

Filed 03/04/11 Page 2 of 27 PageID #: 1393

EDWARDS ANGELL PALMER & DODGE
BY: Deming E. Sherman, Esq.
2800 Financial Plaza
Providence, RI 02903
[e-mail]
NIXON PEABODY LLP
BY: Jeffrey S. Brenner, Esq.
One Citizens Plaza, Suite 500
Providence, RI 02903
401-454-1042
[e-mail]

Court Reporter:
Proceedings recorded by electronic sound recording,
transcript produced by transcription service.
MARYANN V. YOUNG
Certified Court Transcriber
Wrentham, MA 02093
[phone]

Case 1:09-cv-00471-S -DLM Document 86

Filed 03/04/11 Page 3 of 27 PageID #: 1394
3
I N D E X

1
2

Proceedings

3

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MARYANN V. YOUNG
Certified Court Transcriber
[phone]

Case 1:09-cv-00471-S -DLM Document 86

Filed 03/04/11 Page 4 of 27 PageID #: 1395
4

P R O C E E D I N G S

1
2

CASE CALLED INTO SESSION
THE COURT:

3

Western Reserve Life Assurance Company of

4

Ohio v. Joseph Caramadre, et al, Civil Action 09-470-S.

5

these matters been consolidated counsel?

6

MR. MAGRATTEN:

7

THE COURT:

Have

Not formally, Judge.

All right.

I’ll announce all the case

8

numbers, Case No. Civil Action 09-470-S, 09-471-S, 09-472-S,

9

09-473-S, 09-502-S, 09-549-S and 09-564-S.

There are two

10

motions before the Court, numerically the first is Document No.

11

70 which is plaintiff’s motion for entry of a confidentiality

12

order.

13

motion for a protective order striking defendant Estate

14

Planning Resources Inc.’s interrogatories.

15

identify themselves please.

And the second is Document No. 72, plaintiff’s omnibus

16

MR. MAGRATTEN:

17

MR. DALY:

18

MR. PARKER:

The attorneys will

Brooks Magratten for the plaintiffs.

Michael Daly for the plaintiffs.
Matt Parker for ADM Associates LLC,

19

Estate Planning Resources Incorporated, Joseph Caramadre,

20

Harrison Condit, Raymour Radhakrishnan and Estella Rodrigues.

21
22

MR. TRAINI:

Anthony Traini for Edward Maggiacomo

Jr., Your Honor.

23

MR. SHERMAN:

24

MR. PRENTISS:

25

MR. BRENNER:

Deming Sherman for the Leaders Group.
Dan Prentiss DK LLC.
Jeffrey Brenner representing Fortune

MARYANN V. YOUNG
Certified Court Transcriber
[phone]

Case 1:09-cv-00471-S -DLM Document 86

Filed 03/04/11 Page 19 of 27 PageID #: 1410
19

1

MR. MAGRATTEN:

2

THE COURT:

3

MR. PARKER:

4

THE COURT:

5

COUNSEL:

6

THE COURT:

7

MR. MAGRATTEN:

It is, Your Honor.

Mr. Parker, clear to you?
It is.

Thank you, Your Honor.

All counsel clear?

Yes, Your Honor.
All right.
Your Honor, will you be entering the

8

confidentiality order or should we present that to, file it

9

with the clerk’s office?

10

MR. PARKER:

Your Honor, just one point on the one I

11

believe that plaintiffs have proposed.

12

the beginning that says all parties having agreed upon the

13

terms of this order which given today’s events I think it’s

14

clear we aren’t in agreement.

15

plaintiffs submit a new draft that withdraws that recital.

16

MR. MAGRATTEN:

17

THE COURT:

18

MR. MAGRATTEN:

19

THE COURT:

There’s a recital in

I would just request that

We will, Your Honor.

You do that; submit it and I’ll enter it.
Thank you.

All right, we’ll now move on to the next

20

motion which is plaintiff’s omnibus motion for a protective

21

order striking defendant Estate Planning Resources Inc.’s

22

interrogatories.

23

Mr. Magratten?

MR. MAGRATTEN:

24

in the last motion--

25

THE COURT:

Thank you, Your Honor.

Excuse me, Mr. Magratten.
MARYANN V. YOUNG
Certified Court Transcriber
[phone]

I mentioned

Case 1:09-cv-00471-S -DLM Document 86

Filed 03/04/11 Page 20 of 27 PageID #: 1411
20

1

MR. MAGRATTEN:

2

THE COURT:

Yes.

I’ll state for the record I’ll issue a

3

very short order on the ruling I just made on this first motion

4

and I’ll include restatement about if in the future this matter

5

becomes problematic that the defendants can seek a

6

reconsideration of the ruling today.

7

MR. MAGRATTEN:

Very well and we will revise the

8

confidentiality order as Mr. Parker has suggested and get that

9

to you as well.

10

THE COURT:

Fine.

11

MR. MAGRATTEN:

With respect to the motion for a

12

protective order, as we discussed this relates back to a

13

September status conference with Judge Smith.

14

defendants had moved for a global stay of all discovery in the

15

civil case.

Judge Smith addressed that in the status

16

conference.

There was extended discussion about the pros and

17

cons of limitations on discovery.

18

feelings on the matter which included his belief that there

19

should not be a blanket stay of discovery but that any

20

limitations on discovery should be applied even handily.

21

resulting case management order imposed limitations on the

22

target defendants providing any testimonial evidence such as

23

answers to interrogatories, request for admissions, depositions

24

and the like.

25

by the defendants were, one, burden.

The target

Judge Smith indicated his

Their

And I think the reasons for that as articulated
They recited the fact

MARYANN V. YOUNG
Certified Court Transcriber
[phone]

Case 1:09-cv-00471-S -DLM Document 86

Filed 03/04/11 Page 21 of 27 PageID #: 1412
21

1

that they were quite busy with the various investigations

2

under way.

3

to be in a position where they had to plead the Fifth Amendment

4

in responses to civil discovery.

5

sympathetic to that concern and that lead to the limitation

6

that the plaintiffs and other non-target defendants could not

7

require of the target defendants to do anything other than

8

produce documents at this point.

9

reciprocal in the same sense that the target defendants cannot

10

turn around and propound interrogatories, request for admission

11

or submit the non-target parties to depositions.

12

Number two, they didn’t want the target defendants

I think Judge Smith was

And he made that restriction

We received not long ago a set of interrogatories

13

from Estate Planning Resources Inc.

Estate Planning Resources

14

Inc. is a Rhode Island Corporation and according to the current

15

Corporate statement on file the president of Estate Planning

16

Resources is Joseph Caramadre, the treasurer is Joseph

17

Caramadre, the secretary is Joseph Caramadre and the director

18

is Joseph Caramadre.

19

individuals involved in that corporation, Mr. Radhakrishnan and

20

Mr. Maggiacomo.

21

Estate Planning Resources is all about largely because our

22

discovery that we’ve been permitted to conduct to date has been

23

fairly limited.

24

which have undoubtedly been engineered by Mr. Caramadre through

25

this entity that he largely owns and controls is an end run

I believe there are at least two other

We don’t yet have the complete picture of what

But our position is that the interrogatories

MARYANN V. YOUNG
Certified Court Transcriber
[phone]

Case 1:09-cv-00471-S -DLM Document 86

Filed 03/04/11 Page 22 of 27 PageID #: 1413
22

1

around the restrictions imposed in the initial case management

2

order.

3

bilateral limitations.

4

defendants certain matters and they likewise cannot ask the

5

same of non-target parties.

6

propounded by Estate Planning Resources offends the spirit, if

7

not the letter, of the case management order and for that

8

reason we would ask that these interrogatories be stricken at

9

this point.

I think the fundamental principle of that order was
In other words we cannot ask the target

We think the interrogatories

Or if the Court is inclined to allow Estate

10

Planning Resources to propound these interrogatories then we

11

would ask that the order be modified so that the plaintiffs can

12

propound similar interrogatories for Estate Planning Resources.

13

THE COURT:

Thank you, Mr. Magratten.

14

MR. MAGRATTEN:

15

MR. TRAINI:

Thank you.

Your Honor, I don’t think I need to go

16

to the podium.

17

Mr. Magratten indicated that Mr. Maggiacomo is somehow

18

connected with or involved with Estate Planning Resources.

19

He’s not and he has not been and he has no interest in it.

20

He’s not an officer, a director or anything else and he has no

21

interest in what happens with respect to this particular motion

22

or with those interrogatories.

23

THE COURT:

24

MR. PARKER:

25

I just have to clarify something.

Mr. Parker?
Thank you, Your Honor.

The reason that

my clients have objected to plaintiff’s motion to strike Estate
MARYANN V. YOUNG
Certified Court Transcriber
[phone]

Case 1:09-cv-00471-S -DLM Document 86

Filed 03/04/11 Page 23 of 27 PageID #: 1414
23

1

Planning Resources interrogatories is because contrary to what

2

plaintiff’s counsel somewhat infers this was not an order that

3

was unilaterally imposed upon the parties by Judge Smith.

4

was one that was subject to nearly a month of negotiation

5

between parties’ counsel and plaintiff’s counsel agreed to the

6

terms that the Court entered in this initial case management

7

order.

8

case’s current posture hasn’t yet seen the pleadings close

9

despite the fact that this case now has been going on for

It

I think it’s important to remind the Court that the

10

nearly a year and a half.

11

because of a first round of motions to dismiss that Judge Smith

12

decided upon in June and now a second round of amended

13

complaints that the plaintiffs have filed.

14

We haven’t yet had to file answers

So in any ordinary circumstances haven’t not yet had

15

to file answers plaintiffs wouldn’t be able to propound

16

discovery if it weren’t for the good faith negotiation and

17

cooperation of all the parties in the cases here.

18

attempt to end run an agreement.

19

negotiated together in good faith and we relied upon that.

20

I just wanted to point out that in addition to propounding

21

interrogatories to the plaintiffs Estate Planning Resource

22

propounded interrogatories to the broker dealers in this case.

23

Two of the three broker dealer parties have responded to those

24

interrogatories.

25

from those parties.

This is no

It was one that the parties
And

We have seen no objection or motion to strike

MARYANN V. YOUNG
Certified Court Transcriber
[phone]

Case 1:09-cv-00471-S -DLM Document 86

Filed 03/04/11 Page 24 of 27 PageID #: 1415
24

1

Additionally, I would also like to point out that

2

there’s nothing in this protective order or in this case

3

management order that prevents the plaintiffs or any of the

4

other parties from propounding interrogatories to Estate

5

Planning Resources.

6

cannot be compelled to respond to those interrogatories.

7

haven’t seen what interrogatories the plaintiffs might like to

8

propound upon Estate Planning Resources, but certainly I could

9

imagine circumstances under which Estate Planning Resources

It only states that target defendants
We

10

could answer those interrogatories through another employee so

11

long as it wouldn’t require one of the targets to give that

12

response and risk jeopardizing his Fifth Amendment Rights.

13

this is why we’ve objected to the plaintiff’s motion to strike.

14

THE COURT:

So

In your memorandum Mr. Parker, you quote

15

paragraph five of the initial case management order.

16

from reading that your position would be that the excerpt you

17

reproduced says notwithstanding the pendency of any motions to

18

dismiss the parties may forthwith propound interrogatories

19

pursuant to Rule 33 except that no target defendant shall

20

propound interrogatories nor should any target defendant

21

whether on his own behalf or on behalf of an organization be

22

required to respond to any such interrogatories.

23

point is that modifying phrase whether on his own behalf or on

24

behalf of an organization does not follow that first provision

25

except that no target defendant should propound
MARYANN V. YOUNG
Certified Court Transcriber
[phone]

I gather

I gather your

Case 1:09-cv-00471-S -DLM Document 86

Filed 03/04/11 Page 25 of 27 PageID #: 1416
25

1

interrogatories, am I correct?

2

MR. PARKER:

That’s correct, Your Honor.

Here the

3

plaintiffs are trying to compose and ex post facto restriction

4

upon this order that they negotiated.

5

THE COURT:

Do you know who actually drafted this

6

language or was there, were there so many versions that it’s

7

impossible to say who drafted paragraph five?

8

MR. PARKER:

Following the parties at the hearing on

9

the parties’ motion to stay in August, Your Honor, Judge Smith

10

encouraged us to go back, try to work with the other parties to

11

draft this agreement.

12

versions to the Judge that the Judge considered at a chambers

13

conference a few weeks later.

14

two conflicting orders at that conference, left, and then

15

shortly thereafter over email the parties worked out terms that

16

were amendable to both sides.

17

process, Your Honor.

18

THE COURT:

19

MR. PARKER:

20

THE COURT:

21

MR. PARKER:

22

THE COURT:

23

COUNSEL:

24

THE COURT:

25

We couldn’t.

We submitted two competing

We discussed the terms of the

So it really was a joint

And both sides agreed to this language?
Yes.
All right, thank you.
Thank you.
Any other counsel want to be heard?
No response.
All right.

Before the Court is

plaintiff’s omnibus motion for a protective order striking
MARYANN V. YOUNG
Certified Court Transcriber
[phone]

Case 1:09-cv-00471-S -DLM Document 86

Filed 03/04/11 Page 26 of 27 PageID #: 1417
26

1

defendant Estate Planning Resources Inc.’s interrogatories.

2

Again the Court has read the memorandum and I’ve listened to

3

the arguments of counsel.

4

that the defendants are attempting to take advantage of a

5

loophole in the initial case management order.

6

the argument being made by plaintiffs and I can also understand

7

why they describe it as a loophole, but it’s represented to the

8

Court that plaintiffs agreed to this language.

9

responsibility was on both sides to scrutinize the proposed

The plaintiffs essentially argue

I understand

I think the

10

language to see if there were any loopholes in it and once they

11

gave their agreement the order was entered and the parties have

12

been operating under it.

13

omnibus motion for a protective order.

14

prepare an order reflecting that motion for a protective order

15

is denied.

16

MR. PARKER:

17

THE COURT:

18

Mr. Parker, you may

Thank you, Your Honor.
On the first motion as I said I’ll issue

a brief written order.
Anything further before I step down?

19
20

So I’m going to deny the plaintiff’s

Court will stand in recess.
THE CLERK:

21
22

//

23

//

24

//

25

All rise.

//
MARYANN V. YOUNG
Certified Court Transcriber
[phone]

All right,

Case 1:09-cv-00471-S -DLM Document 86

Filed 03/04/11 Page 27 of 27 PageID #: 1418
27
CERTIFICATION

1
2

I, Maryann V. Young, court approved transcriber, certify

3

that the foregoing is a correct transcript from the official

4

digital sound recording of the proceedings in the

5

above-entitled matter.

6
7

/s/ Maryann V. Young

March 3, 2011

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MARYANN V. YOUNG
Certified Court Transcriber
[phone]