Transamerica Life Insurance Company v. Caramadre et al
Filing
121
ORDER GRANTING IN PART PLAINTIFFS' MOTION TO COMPEL DEFENDANT ESTATE PLANNING RESOURCES TO RESPOND TO INTERROGATORIES (117) Motion to Compel in case 1:09-cv-00470-S -DLM; (119) Motion to Compel in case 1:09-cv-00472-S -DLM; (116) Motion to Compel in case 1:09-cv-00471-S -DLM; (144) Motion to Compel in case 1:09-cv-00473-S -DLM; (105) Motion to Compel in case 1:09-cv-00502-S -DLM; (92) Motion to Compel in case 1:09-cv-00549-S-DLM; (85) Motion to Compel in case 1:09-cv-00564-S-DLM. So Ordered by Magistrate Judge David L. Martin on 11/1/2011. Associated Cases: 1:09-cv-00470-S -DLM et al.(Noel, Jeannine)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
WESTERN RESERVE LIFE
ASSURANCE CO. OF OHIO,
Plaintiff,
:
:
:
:
v.
:
:
CONREAL LLC, HARRISON CONDIT,
:
FORTUNE FINANCIAL SERVICES, INC., :
and ANTHONY PITOCCO,
:
Defendants. :
TRANSAMERICA LIFE INSURANCE
COMPANY,
Plaintiff,
v.
JOSEPH CARAMADRE, RAYMOUR
RADHAKRISHNAN, ESTATE PLANNING
RESOURCES, INC., ESTELLA
RODRIGUES, EDWARD MAGGIACOMO,
JR., LIFEMARK SECURITIES CORP.,
and PATRICK GARVEY,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
v.
:
:
JOSEPH CARAMADRE, RAYMOUR
:
RADHAKRISHNAN, ESTATE PLANNING
:
RESOURCES, INC., ADM ASSOCIATES, :
LLC, EDWARD HANRAHAN, THE LEADERS :
GROUP, INC., and CHARLES BUCKMAN, :
Defendants. :
CA 09-470 S
CA 09-471 S
WESTERN RESERVE LIFE ASSURANCE
CO. OF OHIO,
Plaintiff,
CA 09-472 S
WESTERN RESERVE LIFE ASSURANCE
COMPANY OF OHIO,
Plaintiff,
:
:
:
:
:
:
:
:
:
:
:
:
v.
JOSEPH CARAMADRE, RAYMOUR
RADHAKRISHNAN, ESTATE PLANNING
RESOURCES, INC., DK LLC, EDWARD
HANRAHAN, THE LEADERS GROUP,
INC., and JASON VEVEIROS,
Defendants.
WESTERN RESERVE LIFE ASSURANCE
COMPANY OF OHIO,
Plaintiff,
:
:
:
:
:
:
:
:
:
:
:
:
v.
JOSEPH CARAMADRE, RAYMOUR
RADHAKRISHNAN, ESTATE PLANNING
RESOURCES, INC., NATCO PRODUCTS,
EDWARD HANRAHAN, and THE LEADERS
GROUP, INC.,
Defendants.
TRANSAMERICA LIFE INSURANCE
COMPANY,
Plaintiff,
:
:
:
:
:
:
:
:
:
:
:
:
v.
LIFEMARK SECURITIES CORP.,
JOSEPH CARAMADRE, RAYMOUR
RADHAKRISHNAN, ESTATE PLANNING
RESOURCES, INC., and EDWARD
MAGGIACOMO,
Defendants.
2
CA 09-473 S
CA 09-502 S
CA 09-549 S
WESTERN RESERVE LIFE ASSURANCE
CO. OF OHIO,
Plaintiff,
:
:
:
:
v.
:
:
JOSEPH CARAMADRE, RAYMOUR
:
RADHAKRISHNAN, ESTATE PLANNING
:
RESOURCES, INC., HARRISON CONDIT,:
and FORTUNE FINANCIAL SERVICES, :
INC.,
:
Defendants. :
CA 09-564 S
ORDER
GRANTING IN PART PLAINTIFFS’ MOTION
TO COMPEL DEFENDANT ESTATE PLANNING RESOURCES
TO RESPOND TO INTERROGATORIES
Before the Court is Plaintiffs’ Motion to Compel Defendant
Estate Planning Resources to Respond to Interrogatories (Docket
(“Dkt.”)
#117)
(“Motion”).
Plaintiffs
Western
Reserve
Life
Assurance Co. of Ohio (“Western Reserve”) and Transamerica Life
Insurance Company (“Transamerica”) (together “Plaintiffs”) seek to
compel Defendant Estate Planning Resources (“EPR”) to respond to
interrogatories propounded by Plaintiffs in these seven related
actions.
See Motion at 3.
A hearing was held on October 28, 2011.
Discussion
Plaintiffs state that EPR has “decline[d] to respond,” id.
(citing Exhibit (“Ex.”) A (Defendant Estate Planning Resources,
Inc.’s Answers to Plaintiff’s First Set of Interrogatories), to the
interrogatories based on the Court’s Initial Case Management Order
3
(Dkt. #58) (“ICMO”). Paragraph 5 of the ICMO provides, in relevant
part, that:
no Target Defendant[1] shall propound interrogatories or
requests for admission, or notice any such deposition,
nor shall any Target Defendant, whether on his own behalf
or on behalf of an organization pursuant to the
procedures outlined in Rule 30(b)(6) or Rule 31(a)(4),
be required to respond to any such interrogatories or
requests for admission, nor be noticed or subpoenaed for
any deposition, orally or in writing, until further
order of the Court ....
ICMO ¶ 5.
Plaintiffs note that 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.
See Motion at 6.
EPR asserts that the interrogatories, while nominally directed
at
EPR,
“are
truly
directed
to
Mr.
Caramadre.
information that only Mr. Caramadre can provide.”
They
seek
Memorandum of
Law in Support of Defendant Estate Planning Resources, Inc. (“EPR”)
Objection
to
Plaintiffs’
Motion
to
Interrogatories (“EPR’s Mem.”) at 5.
should be denied for two reasons.
Compel
EPR
to
Respond
to
EPR argues that the Motion
See id. at 6.
First, EPR
contends that “the ICMO specifically prohibits the interrogatories
propounded by plaintiff.”
Id.
Second, EPR argues that the
appropriate tack for a court to take is to delay discovery from
organizations when the only individual capable of providing the
1
The
Target
Defendants
are
“Joseph
Caramadre,
Raymour
Radhakrishnan, Edward Maggiacomo, Harrison Condit, and Edward Hanrahan.”
Initial Case Management Order (Dkt. #58) (“ICMO”) at 4 n.2.
4
responses to the discovery requests is the subject of a related
criminal investigation.
Id.
The Court addresses these arguments
in turn.
Does the ICMO Prohibit the Interrogatories?
The Court does not agree that the ICMO prohibits Plaintiffs
from
propounding
interrogatories
to
EPR.
The
ICMO
provides
protection only to the Target Defendants, and EPR is not a Target
Defendant.
See ICMO at 4 n.2.
EPR’s entreaty that “the Court
should enforce the spirit of the ICMO ...,” EPR’s Mem. at 4, is
unpersuasive for two reasons.
First, at the January 7, 2011, hearing before this Magistrate
Judge
on
Plaintiffs’
omnibus
motion
for
a
protective
order,2
counsel for EPR took the opposite position with respect to giving
effect to the “spirit” of the ICMO.
See Plaintiffs’ Reply to
Objection to Motion to Compel Defendant Estate Planning Resources
to Respond to Interrogatories (Dkt. #120), Ex. A (Transcript of
1/7/11 Hearing (“Tr.”)) at 22. Plaintiffs’ counsel had argued that
the
interrogatories
propounded
by
Target
Defendant
Joseph
Caramadre’s company, EPR, “offends the spirit, if not the letter,
of the case management order and for that reason we would ask that
these interrogatories be stricken at this point.” Id.
Responding
to this argument, counsel for EPR urged the literal application of
2
See Plaintiffs’ Omnibus Motion for Protective Order Striking
Defendant Estate Planning Resources, Inc.’s Interrogatories (Dkt. #72).
5
the terms of the ICMO and emphasized that the order had been the
subject of “nearly a month of negotiation between parties’ counsel
and [that] plaintiff’s counsel agreed to the terms that the Court
entered ....”
Tr. at 23; see also id. (“This is no attempt to end
run an agreement.
It was one that the parties negotiated together
in good faith and we relied upon that.”).
The Court found EPR’s argument persuasive and denied the
motion for protective order.
See Tr. at 25-26.
In doing so, the
Court stated:
The plaintiffs essentially argue that the defendants are
attempting to take advantage of a loophole in the initial
case management order. I understand the argument made by
plaintiffs and I can also understand why they describe it
as a loophole, but it’s represented to the Court that
plaintiffs agreed to this language.
I think 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 and the parties have been operating under it.
Tr. at 26.
Although the shoe is now on the other foot, the above
reasoning continues to be valid.
Second, EPR previously acknowledged that the ICMO allowed
interrogatories to be propounded to it. At the January 7, 2011,
hearing, counsel for Plaintiffs concluded his argument by stating:
Or if the Court is inclined to allow Estate Planning
Resources to propound these interrogatories[,] then we
would ask that the order be modified so that the
plaintiffs can propound similar interrogatories for
Estate Planning Resources.
Tr. at 22.
In responding to Plaintiffs’ argument, EPR’s counsel
stated:
6
Additionally, I would also like to point out that
there’s nothing in this protective order or in this case
management order that prevents the plaintiffs or any of
the other parties from propounding interrogatories to
Estate Planning Resources. It only states that target
defendants cannot be compelled to respond to those
interrogatories. We haven’t seen what interrogatories
the plaintiffs might like to propound upon Estate
Planning Resources, but certainly I could imagine
circumstances under which Estate Planning Resources could
answer those interrogatories through another employee so
long as it wouldn’t require one of the targets to give
that response and risk jeopardizing his Fifth Amendment
Rights.
Tr. at 24 (bold added).
As EPR’s counsel recognized,3 the ICMO
does not prohibit Plaintiffs from propounding interrogatories to
EPR.
EPR’s reversal of position on this issue diminishes its
credibility.
Should the Court Delay Discovery?
As
an
initial
matter,
the
Court
rejects
EPR’s
blanket
assertion that “[o]nly Mr. Caramadre, the sole-owner and officer of
EPR, is capable of providing the information necessary for EPR to
respond to the plaintiff’s questions.”
EPR’s Mem. at 6-7.
For
example, Interrogatory 5 asks EPR to “identify all payments made
to, or by, EPR in connection with the Annuity or Application.”
Interrogatories at 5.
Interrogatory 10 requires EPR to “identify
all owners, officers, directors, investors, and employers of EPR
since January 1, 2000.”
Id. at 9.
3
Interrogatory 13 asks EPR to
The attorney for EPR who appeared at the hearing on the instant
Motion is not the same attorney who argued for EPR at the January 7,
2011, hearing.
7
“identify all communications EPR had with Plaintiff since January
1, 2011 ....”4
Id. at 10.
The Court is unpersuaded that the
information sought by these interrogatories cannot be obtained from
company records or sources other than Target Defendants.
See City
of Chicago v. Reliable Truck Parts Co., No. 88 C 1458, 1989 WL
32923, at *3 (N.D. Ill. Mar. 31, 1989)(noting that agent appointed
by corporation to answer interrogatories “need not have ‘first-hand
personal knowledge’ of the facts reflected in the answers” and that
the
agent
can
“gather
and
obtain
from
books,
records,
other
officers or employees, or other sources, the information necessary
to answer the interrogatories and sign them on behalf of the
corporation”).
Next,
EPR
interrogatories
argues
that
addressed
to
“[w]hen
a
no
corporation
one
can
without
answer
subjecting
himself to a ‘real and appreciable’ risk of self-incrimination,
‘the appropriate remedy [is] a protective order ... postponing
civil discovery until termination of the criminal action.’”
EPR’s
Mem. at 8 (quoting United States v. Kordel, 397 U.S. 1, 8-9, 90
S.Ct. 763 (1970))(second and third alterations in original). While
the quotation from Kordel is accurate, EPR’s argument assumes that
the conditions justifying this relief, namely that “no one can
answer the interrogatories addressed to the corporation without
subjecting himself to a ‘real and appreciable’ risk of self-
4
This lawsuit was filed on October 2, 2009.
8
incrimination,” Kordel, 397 U.S. at 8-9, exist with respect to all
of the Interrogatories that have been propounded.
not accept this assumption.
The Court does
See Reliable Truck Parts Co., 1989 WL
32923, at *2 (“Courts should be careful not to merely accept the
‘say-so’ of a claimant as sufficient demonstration of the risk of
incrimination.”)(citing Hoffman v. United States, 341 U.S. 479,
486, 71 S.Ct. 814 (1951)).
EPR wants this Court essentially to stay the “corporation’s
duty to respond to discovery.”
EPR’s Mem. at 8 (quoting State Farm
Mut. Auto. Ins. Co. v. Grafman, 04-CV-2609 (NG)(SMG), 2007 U.S.
Dist. LEXIS 88277, at *16 (E.D.N.Y. Dec. 1, 2007)).
However, the
ICMO provides that discovery will proceed except as to the Targeted
Defendants.
ICMO ¶ 5.
Thus, the ICMO permits discovery to proceed
with respect to EPR, a point which was made by EPR’s own counsel at
the January 7, 2011, hearing.
See Tr. at 24.
Now, however, EPR
has switched positions and argues, in effect, for a broadening of
the ICMO.
request
For the same reasons that the Court denied Plaintiffs’
for
a
broadening
of
the
ICMO
last
January,
it
is
unconvinced that it should grant a similar request now from EPR.
Rulings Re the Motion
In sum, the ICMO does not prohibit the interrogatories, and
the Court concludes that discovery directed to EPR should not be
stayed.
To the extent that EPR argues to the contrary, its
arguments are rejected.
9
“Rule 33(a) of the Federal Rules of Civil Procedure provides
that
where
interrogatories
corporation
must
information
as
corporation.”
are
designate
is
available
served
on
an
agent
who
can
the
party’
on
to
a
corporation,
‘furnish
behalf
of
the
such
the
Cent. States, Southeast & Southwest Areas Pension
Fund v. Cartensen Freight Lines, Inc., No. 96 C 6252, 1998 WL
413490, at *4 (N.D. Ill. July 17, 1998); see also id. (“The Federal
Rules simply require that the corporation select an agent who can
‘gather
and
obtain
from
books,
records,
other
officers
or
employees, or other source, the information necessary to answer the
interrogatories ....”).
Accordingly, EPR is ordered to designate
such agent and answer the interrogatories.
See id.
To the extent that a particular interrogatory requires5 EPR’s
agent to consult a Target Defendant and the Target Defendant
refuses to provide the information sought, the agent shall, in the
response to such interrogatory, (1) explain why the information can
only be obtained from a Target Defendant and from no other source
(e.g., company records or persons other than a Target Defendant)
and (2) state verbatim the response which the agent received from
the Target Defendant who declined to provide the information
requested.
To
requirement,
any
insure
Target
accuracy
with
Defendant
5
respect
who
to
declines
the
to
latter
provide
By “requires,” the Court means that the information cannot be
obtained from any other source.
10
information to EPR’s agent shall furnish the agent with a written
statement stating the basis for the refusal. If Plaintiffs believe
that the information can be obtained from some source other than a
Target Defendant, Plaintiffs may file a motion to compel EPR to
provide more responsive answers.6
Conclusion
Accordingly, the Motion is GRANTED to the extent stated above.
To the extent that Plaintiffs seek greater relief than that stated
above, the Motion is denied.
ENTER:
/s/ David L. Martin
DAVID L. MARTIN
United States Magistrate Judge
November 1, 2011
6
In the interest of limiting future motion practice, Plaintiffs are
advised that if it appears that the information sought by a particular
interrogatory can only be obtained from a Target Defendant, the Court in
all probability will not grant a further motion to compel with respect
to such interrogatory.
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?