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Case 1:12-cv-06811-CM-JCF Document 151 Filed 12/10/12 Page 1 of 18

(ECF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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: 12 Civ. 6811 (CM) (JCF)
US BANK NATIONAL ASSOCIATION,
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a national association as
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securities intermediary for LIMA
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ACQUISITION LP,
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JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

PHL VARIABLE INSURANCE COMPANY,
a Connecticut Corporation,
Defendant.

MEMORANDUM
AND ORDER

Plaintiff,



- against -

This case arises out of twelve life insurance policies known
as Phoenix Accumulator Universal Life (“PAUL”) policies owned by US
Bank National Association (“US Bank”) and issued by PHL Variable
Insurance Company (“PHL”). US Bank alleges that PHL breached the
terms of the policies and violated various laws by raising the cost
of insurance rates on those policies in 2010 and 2011. PHL now
moves to compel US Bank’s production of documents and response to
interrogatories. For the reasons set forth below, PHL’s motion is
granted in part and denied in part.
Background

The factual background of this dispute is laid out in my
November 5, 2012 Memorandum and Order. In brief, the policies at
issue are universal life insurance policies which allow
policyholders to pay as much money as they want into their policy
accounts each month as long as the account balance is sufficient to
cover policy charges, including a “cost of insurance charge.”

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(First Amended Complaint (“FAC”), ¶ 2). If the balance is not met,
the policies will ultimately lapse. (FAC, ¶ 2). The policies at
issue permit the insurer to adjust cost of insurance rates, but
only based on certain specified factors, the most significant of
which is mortality. (FAC, ¶ 4). US Bank alleges that, although
life expectancy has increased, which should lead to a reduction in
the cost of insurance, PHL has increased its cost of insurance
rates. (FAC, ¶ 4). According to the plaintiff, PHL has done so
both to increase its fees and to prompt policyholders to allow
their policies to lapse rather than pay higher fees, thereby
relieving PHL of the risk of ever having to pay out on the
policies. (FAC, ¶ 7).

On April 13, 2012, PHL served its First Set of Requests for
Production of Documents (Proof of Service dated April 13, 2012,
attached as part of Exh. 1 to Declaration of Melanie D. Phillips
dated Oct. 25, 2012 (“Phillips Decl.”)), and First Set of
Interrogatories (Proof of Service dated April 13, 2012, attached as
part of Exh. 2 to Phillips Decl.). On May 17, 2012, US Bank served
its Objections and Responses to PHL’s First Set of Requests for
Production (Plaintiff U.S. Bank National Association’s Objections
and Responses to Defendant PHL Variable Insurance Company’s First
Set of Requests for Production of Documents dated May 17, 2012
(“Pl. Resp. to Def. Req.”), attached as Exh. 3 to Phillips Decl.),
and to PHL’s First Set of Interrogatories (Plaintiff U.S. Bank
National Association’s, as Securities Intermediary for Lima
Acquisition LP, Objections and Responses to Defendant PHL Variable

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Insurance Company’s First Set of Interrogatories dated May 17,
2012, attached as Exh. 4 to Phillips Decl.). The parties have
exchanged numerous letters and conferred telephonically in an
effort to resolve disputes over PHL’s document requests and
interrogatories. (Declaration of Jason H. Gould dated Oct. 19, 2012
(“Gould Decl.”), ¶¶ 8, 10-11, 13-20, 22-24; Phillips Decl., ¶¶ 8-9,
11-15, 18-19).
Discussion

Production

A.
Generally, “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
defense[.]” Fed. R. Civ. P. 26(b)(1). “Although not unlimited,
relevance, for the purpose of discovery, is an extremely broad
concept.” Condit v. Dunne, 225 F.R.D. 100, 105 (S.D.N.Y. 2004);
see also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978). It “‘encompass[es] any matter that bears on, or that could
lead to other matters that could bear on, any issue that is or may
be in the case.” Schoolcraft v. City of New York, No. 10 Civ.
6005, 2012 WL 2161596, at *12 (S.D.N.Y. June 14, 2012) (quoting
Oppenheimer Fund Inc., 437 U.S. at 351). “Relevant information
need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible
evidence.” Fed. R. Civ. P. 26(b)(1). The burden of demonstrating
relevance is on the party seeking discovery. See, e.g., King
County, Washington v. IKB Deutsche Industriebank AG, No. 09 Civ.
8387, 2012 WL 3553775, at *1 (S.D.N.Y. Aug. 17, 2012).

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Once relevance has been shown, it is up to the responding
party to justify curtailing discovery. Condit, 225 F.R.D. at 106.
“[T]he court must limit the frequency or extent of discovery”
where:

(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source
that is more convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or
(iii) the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of
the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the
action, and the importance of the discovery in resolving
the issues.

Fed. R. Civ. P. 26(b)(2)(C). “General and conclusory objections as
to relevance, overbreadth, or burden are insufficient to exclude
discovery of requested information.” Melendez v. Greiner, No. 01
Civ. 7888, 2003 WL 22434101, at *1 (S.D.N.Y. Oct. 23, 2003).
“Instead, the objecting party must show specifically how, despite
the broad and liberal construction afforded the federal discovery
rules, each request is not relevant or how each question is overly
broad, burdensome or oppressive.” Tourtelotte v. Anvil Place
Master Tenant, LLC, No. 3:11CV1454, 2012 WL 5471855, at *1 (D.
Conn. Nov. 9, 2012) (quoting In re Priceline.com Inc. Securities
Litigation, 233 F.R.D. 83, 85 (D. Conn. 2005)).

Here, the parties differ as to the scope of relevant
discovery. PHL claims that the circumstances surrounding the
origination of the 12 PAUL policies and US Bank’s acquisition of

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them are relevant to this case and its potential defenses.
(Defendant’s Memorandum of Law in Support of Its Motion to Compel
Production of Documents and Responses to Interrogatories (“Def.
Memo.”) at 3-4). The plaintiff argues that only information that
concerns PHL’s cost of insurance rate increases, the policies at
issue, and the cost of insurance rates of those policies is
relevant. (Plaintiff’s Opposition to PHL’s Motion to Compel
Production of Documents and Responses to Interrogatories (“Pl.
Memo.”) at 5). In addition, PHL asks that US Bank be compelled to
identify all entities for which it accepts responsibility for
searching, collecting, and producing documents and to answer all of
PHL’s interrogatories. (Def. Memo. at 1).

B.

The Origination of the PAUL Policies and Their
Acquisition by the Plaintiff: Interrogatories 3, 5, and
6 and Requests 19, 32-42, 44-46
The majority of the discovery to which the plaintiff objects
relates to the circumstances surrounding the origination of the
PAUL policies at issue in this case and the plaintiff’s acquisition
of those policies. (Def. Memo. at 3-4; Defendant PHL Variable
Insurance Company’s Reply in Support of Its Motion to Compel
Production of Documents and Responses to Interrogatories (“Reply
Memo.”) at 3-4). The policies in this case were issued by PHL
between 2005 and 2007. (FAC, ¶ 13). US Bank acquired these
policies in December 2010 in connection with Lima LS plc’s
acquisition of five limited liability companies from Pacifica Group
LLC (“Pacifica”). (Def. Memo. at 7; Pl. Memo. at 7).

Prior to the plaintiff’s acquisition of the policies, PHL

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notified policyholders that it was raising the cost of insurance
rates on its policies. (FAC, ¶ 21). According to PHL, it began to
raise the cost of insurance rates for its policies in March 2010.
(Def. Memo. at 7). The defendant contends that before US Bank
acquired the policies, US Bank was aware both of the possibility of
an increases in the cost of insurance rates on those policies and
that PHL had in fact implemented such increases. (Def. Memo. at
7). PHL argues that the circumstances surrounding the plaintiff’s
acquisition of the policies, particularly its knowledge of PHL’s
cost of insurance rate increases, is therefore relevant to
establishing potential defenses of waiver, estoppel, or
acquiescence, and to undercut the plaintiff’s ability to prove
elements of its statutory deception claims. (Def. Memo. at 8-9).
The defendant also claims that the circumstances surrounding the
origination of the policies are relevant to a potential stranger-
originated life insurance (“STOLI”) defense. (Def. Memo. at 9-12).
US Bank replies that the information sought by PHL is
irrelevant to any claims or defenses in this case, is overbroad,
and is intended to harass, delay, and unduly burden the plaintiff.
(Pl. Memo. at 6-7). Nevertheless, it agrees to produce any
documents about the origination and acquisition of the policies to
the extent that they also concern PHL’s cost of insurance rate
increases, this lawsuit, or the policies. (Pl. Memo. at 7-8). PHL
contends that this agreement is illusory because it is subject to
the caveat that the plaintiff will not produce documents relating
to the policies’ origination or history. (Reply Memo. at 2-3; Pl.

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Memo. at 1 & n.1). The defendant also raises concerns as to
whether the plaintiff will actually comply with its agreement given
the delay in producing documents it had already promised to
produce. (Reply Memo. at 1-2).

The circumstances surrounding the plaintiff’s acquisition of
the policies are relevant to PHL’s potential defenses. The
plaintiff’s primary allegation is that PHL breached the terms of
its policies by raising the cost of insurance rates and engaged in
deceptive marketing practices. One of the ways that PHL can defend
against this action is by establishing that US Bank had
foreknowledge of this alleged breach at the time it acquired the
policies and yet acquired the policies, continued to pay premiums
on them, and accepted benefits of the policies, thereby acquiescing
to and waiving the alleged breach. See, e.g., National
Westminister Bank, U.S.A. v. Ross, 130 B.R. 656, 675 (S.D.N.Y.
1991) (“It is well-established that where a party to an agreement
has actual knowledge of another party’s breach and continues to
perform under and accepts the benefits of the contracts, such
performance constitutes a waiver of the breach.”); National Union
Fire Insurance Co. of Pittsburgh, Pennsylvania v. Mastroni, 754 F.
Supp. 269, 272 (D. Conn. 1990) (“Under Connecticut law, waiver is
the ‘intentional relinquishment of a known right.’ An insurer
waives its right to disclaim based upon a breach of a policy
condition if it has knowledge of the facts giving rise to the
disclaimer, but elects to continue its defense.” (citation
omitted)); see also Arrowood Indemnity Co. v. General Insurance Co.

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of America, No. HHB-CV-09-5013456-S, 2010 WL 4885340, at *2 (Conn.
Super. Ct. Nov. 3, 2010) (“‘Waiver is the intentional
relinquishment of a known right . . . [.] A waiver occurs,
therefore, only if there is both knowledge of the existence of the
right and intent to relinquish it.’” (ellipsis in original)
(quoting Heyman Associates Number 1 v. Insurance Co. of
Pennsylvania, 653 A.2d 122, 133 (Conn. 1995)). The plaintiff’s
foreknowledge may also undercut its ability to prove that PHL’s
alleged misrepresentation induced or otherwise caused the plaintiff
to acquire the policies. See, e.g., Hotel Constructors, Inc. v.
Seagrave Corp., 574 F. Supp. 384, 390 (S.D.N.Y. 1983) (“If
plaintiffs had complete and true knowledge of the facts supposedly
misrepresented, they would have no grounds for claiming fraud.”
(internal quotation marks omitted)). Accordingly, the
circumstances surrounding US Bank’s acquisition of the policies and
what the plaintiff knew at the time of acquisition are relevant and
discoverable.

On the other hand, the circumstances surrounding the
origination of the policies are only relevant if PHL intends to
assert a STOLI defense and claim that the policies are void or
voidable.1 If PHL intends to pursue this defense, it must seek a

1 US Bank argues that a STOLI defense fails as a matter of
law. (Pl. Memo. at 13-14). I decline to address that issue at
this time because “a ‘discovery motion is not the proper forum for
deciding the merits of [a defense].’” Granite State Insurance Co.
v. Clearwater Insurance Co., No. 09 Civ. 10607, 2012 WL 1520851, at
*3 (S.D.N.Y. April 30, 2012) (alteration in original) (quoting
Arkwright Mutual Insurance Co. v. National Union Fire Insurance
Co., No. 90 Civ. 7811, 1993 WL 437767, at *3 (S.D.N.Y. Oct. 26,
1993)).

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declaratory judgment. See, e.g., Bernstein v. Principal Life
Insurance Co., No. 09 Civ. 4925, 2010 WL 4922093, at *1 (S.D.N.Y.
Dec. 2, 2010) (asserting STOLI defense by seeking declaratory
judgment that policy is void or voidable); Pennsylvania Mutual Life
Insurance Co. v. Wolk, 739 F. Supp. 2d 387, 392-94 (S.D.N.Y. 2010)
(declaratory judgment action seeking declaration that life
insurance policy is void is appropriate). And, if PHL pursues this
defense, it may not continue to collect premiums. Cf. Principal
Life Insurance Co. v. Lawrence Rucker 2007 Insurance Trust, 774 F.
Supp. 2d 674, 682 (D. Del. 2011) (holding insurer may not retain
premiums received on policy that court held to be void ab initio
for lack of insurable interest at inception); see also American
General Life Insurance Co. v. Salamon, No. 11-1479-cv, 2012 WL
1847175, at *1 (2d Cir. May 22, 2012) (affirming summary judgment
for defendants in declaratory judgment action seeking rescission of
life insurance policy because plaintiff continued to accept
premiums after learning of facts which allow for recission of
policy); Fidelity and Guaranty Insurance Underwriters, Inc. v.
Jasam Realty Corp., 540 F.3d 133, 144 (2d Cir. 2008) (“It is well
settled that the continued acceptance of premiums by the carrier
after learning of facts which allow for recision of the policy,
constitutes a waiver of, or more properly an estoppel against, the
right to rescind.” (internal quotation marks omitted)). Rather, as
PHL has done in other cases, it must tender the premiums paid to
the court. See, e.g., Original Complaint, PHL Variable Insurance
Co. v. Edwin Fuld Life Insurance Trust, No. 1:12-cv-313 (D. Del.

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March 15, 2012) (seeking declaration life insurance policy is void
and order that premiums paid deposited with court); Complaint, PHL
Variable Insurance Co. v. Bernard Fidel 2007 Irreovcable Trust, No.
09-cv-629 (D. Minn. March 18, 2009) (same). Unless the defendant
affirmatively asserts a STOLI defense, the circumstances
surrounding the origination of the policies are not relevant to
this case.

C.

Communications Between Various Entities: Requests 1, 9,
12, 15, 18, 24, 27, and 30-312
US Bank agrees to produce documents responsive to Requests 1,
9, 12, 15, 18, 24, 27, and 30-31 to the extent that they also
concern PHL’s cost of insurance rate increases, this lawsuit, or
the policies, but objects to producing all documents concerning
communications regarding PHL and the insureds. (Pl. Memo. at 18).
The plaintiff contends that without the subject matter limitation
it proposes, it will be required to produce documents concerning
numerous other PHL policies it or Lima owns that have nothing to do
with this case, as well as life insurance policies that the
insureds have that are also unrelated to this case. (Pl. Memo. at
17-18). Likewise, US Bank objects to Request 31, which seeks all
documents concerning any of the policies, insureds, previous owner
trust and trustee, producers, PHL, the cost of insurance rate
increases, or this lawsuit because there are no subject matter
limitations. (Pl. Memo. at 16).

2 Request 31 is not related to communications, but the
defendant has grouped this request with the others addressed in
this section.

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PHL contends that US Bank’s communications with various
entities concerning owner trusts and trustees, insureds, producers,
and PHL are relevant to this case because they relate to the
origination of or the plaintiff’s acquisition of the policies.
(Def. Memo. at 14-15). However, as discussed above, unless PHL
intends to allege that the policies are void or voidable, the
circumstances surrounding the origination of the policies are not
relevant. As to communications regarding PHL that do not also
concern the policies, the defendant has not adequately demonstrated
how such communications are reasonably calculated to lead to
discovery of admissible evidence.

Accordingly, PHL’s motion compel the production of documents
responsive to Requests 1, 2, 9, 12, 18, 24, 27, 30, and 31 is
denied except as any request relates to the policies, US Bank’s
acquisition of those policies, PHL’s cost of insurance rate
increases, or this lawsuit.

The plaintiff also claims that the definitions used by the
defendant to identify the various entities with which it
communicated are overbroad. (Pl. Memo. at 16-17). PHL contends
that the use of defined terms is practical, attempting to be broad
enough to describe the types of actors common to all policies while
also identifying specific known individuals. (Reply Memo. at 7).
In responding to the document requests, the plaintiff should
reasonably construe the definitions provided by the defendant.
Communications with Governmental Entities and Other Third
Parties: Interrogatory 8, Requests 28, 59
PHL seeks all information and documents concerning

D.

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communications that the plaintiff had with legislators, regulators,
and other third parties regarding PHL, the policies, the insureds,
cost of insurance rate increases, and this litigation. (Def. Memo.
at 16). The plaintiff agrees only to produce its communications
with governmental entities that concern PHL’s cost of insurance
rate increases, this lawsuit, or the policies. (Pl. Memo. at 19).
It argues that its other communications, even if they are about PHL
or the insureds, are irrelevant to this lawsuit. (Pl. Memo. at
18). The defendant responds that all of the plaintiff’s
communications with these governmental entities regarding PHL or
the insureds are reasonably calculated to lead to the discovery of
admissible evidence, such as to statements made by the plaintiff
that contradict its positions in this lawsuit. (Reply Memo. at 8-
9).

Having found the defendant is not entitled to discovery
pertaining to the origination of the policies at this time, US
Bank’s communications with governmental entities regarding the
insureds are irrelevant unless they also concern PHL’s cost of
insurance rate increases, this lawsuit, or the policies. The
defendant also has not met its burden in demonstrating that US
Bank’s communications with governmental entities regarding PHL that
have nothing to do with PHL’s cost of insurance rate increases, the
policies, or the lawsuit is reasonably calculated to lead to
admissible evidence. Accordingly, PHL’s motion is denied as to
Interrogatory 8 and Requests 28 and 59.

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E.

Information or Documents Provided by Lima to US Bank:
Interrogatory 7(b)-(d)
Most of the information and documents that PHL seeks in
Interrogatory 7(b)-(d) is more appropriately obtained through
requests for production, as will be discussed below. See Local
Rules of the United States District Courts for the Southern and
Eastern Districts of New York (“Local Civil Rule”) Rule 33.3 (a).
Interrogatory 7(d) is the only subpart that complies with Local
Civil Rule 33.3(a) since this information may be relevant to
damages. (Def. Memo. 19). However, US Bank has already agreed to
produce documents discussing or reflecting the valuations of the
policies. (Pl. Memo. 20; Pl. Resp. to Def. Req. at 46-48). The
defendant has not explained why a response to Interrogatory 7(d) is
necessary in light of the plaintiff’s agreement to produce
documents discussing or reflecting valuations of the policies in
responses to Requests 68-71. Accordingly, PHL’s motion to compel
a response to Interrogatory 7(d) is denied.

As will be discussed below, subparts (b) and (c)3 to
Interrogatory 7 do not comply with Local Civil Rule 33.3, and the
plaintiff need not answer them. Accordingly, PHL’s motion as to
Interrogatory 7(b) and (c) is also denied.

3 The plaintiff has agreed to produce documents relating to
its communications with governmental entities concerning PHL’s cost
of insurance rate increases, this lawsuit, or the policies (Pl.
Memo. at 19), and PHL has failed to demonstrate why it should be
entitled to the broader category of communications sought in
Interrogatory 7(c).

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F.

Documents Concerning Other Potentially Relevant
Litigation: Requests 72 and 73
PHL seeks all documents related to Lima LS plc v. Pacifica
Group LLC et al., Index No. 652882/2011 (“Lima lawsuit”), as well
as any other litigation that similarly implicates or involves the
PAUL policies. (Def. Memo. at 22; Defendant PHL Variable Insurance
Company’s First Set of Requests for Production of Documents,
attached as Exh. 1 to Phillips Decl., Nos. 72-73). The defendant
contends that the Lima lawsuit is relevant because it concerns the
transaction by which the plaintiff acquired ownership of the
policies and relates to claims and potential defenses in this case.
(Def. Memo. at 22). According to the defendant, in the Lima
lawsuit, Lima sued Pacifica alleging breach of contract, negligent
misrepresentation, fraud, and fraudulent inducement in the sale of
the transferred limited liability companies and the portfolio
assets held by Pacifica, which includes the PAUL policies at issue
in this case. (Def. Memo. at 22). PHL contends that information
about the Lima lawsuit would shed light on, among others, a
potential STOLI defense and what Lima knew about the cost of
insurance rate increases at the time it acquired the Pacifica
portfolio. (Def. Memo. at 22; Letter of Jason H. Gould dated July
12, 2012, attached as Exh. 10 to Gould Decl., at 14-15). The
plaintiff argues that because the Lima lawsuit does not involve
PHL’s cost of insurance rate, it is not relevant (Pl. Memo. at 19),
and the plaintiff is not aware of any other litigation that
specifically concerns the policies and the issues in this case
(Letter of Khai LeQuang dated July 19, 2012, attached as Exh. 11 to

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Gould Decl., at 8).

To the extent that the action identified in Request 72, and
any other similar litigation, discusses the cost of insurance rates
of the policies at issue, including what the plaintiff knew about
the cost of insurance rates at the time of acquisition, the
defendant’s motion is granted.

G.

Identification of Entities for Which the Plaintiff
Accepts the Responsibility for Searching, Collecting and
Producing Responsive Documents
Since PHL acknowledges that US Bank has identified all of the
entities for which US Bank accepts responsibility for searching,
collecting and producing responsive documents (Reply Memo. at 2),
this request is moot.

Number of Interrogatories

H.
PHL has propounded seventeen interrogatories. (Defendant PHL
Variable Insurance Company’s First Set of Interrogatories, attached
as Exh. 2 to Phillips Decl.). US Bank has answered the first eight
interrogatories and refuses to answer the balance on the ground
that PHL has exceeded the twenty-five permitted interrogatories
under Rule 33 of the Federal Rules of Civil Procedure. (Def. Memo.
at 20; Pl. Memo. at 21-22). The plaintiff argues that within the
17 interrogatories, there are 85 subparts (Pl. Memo. at 22), and
that there are 62 separate interrogatories (Def. Memo. at 21).
Many of the defendant’s interrogatories are improper because
they exceed the scope of questions permitted by Local Civil Rule
33.3. Under Local Civil Rule 33.3, “[u]nless otherwise ordered by
the Court, at the commencement of discovery, interrogatories will

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be restricted to those seeking names of witnesses with knowledge of
information relevant to the subject matter of the action, the
computation of each category of damage alleged, and the existence,
custodian, location and general description of relevant
information, including pertinent insurance agreements and other
physical evidence, or information of a similar nature.” Local
Civil Rule 33.3(a); see Gary Friedrich Enterprises, LLC v. Marvel
Enterprises, Inc., No. 08 Civ. 1533, 2011 WL 1642381, at *3
(S.D.N.Y. April 26, 2011) (noting Local Civil Rule 33.3(a)’s
limitation on scope of interrogatories). Except to the extent that
the plaintiff has already agreed to produce documents or responses,
the plaintiff need not answer the following interrogatories, which
do not conform to Local Civil Rule 33.3: Interrogatories 1(a)-(f),
(h), (j-l); 2, 3(b)-(d), 4(b)-(d); 6(b)-(d); 7 (a)-(c), (e); 8;
9(a)-(d); 12(d)-(e); 13(b)-(c); 14 (a), (c)-(e); 15(a)-(f), (h)-
(i); 16(e)-(f), 17. See Carling v. Peters, No. 10 Civ. 4573, 2012
WL 1438261, at *1-2 (S.D.N.Y. April 24, 2012) (denying motion to
compel responses to interrogatories because interrogatories failed
to comply with Local Civil Rule 33.3); Gary Friedrich Enterprises,
LLC, 2011 WL 1642381, at *4 (requiring no responses to
interrogatories that do not conform with Local Civil Rule 33.3).
In addition, as discussed above, the plaintiff does not need to
answer Interrogatories 3, 6, and 7(c)-(d). Consistent with the
parameters set forth in this Order, US Bank shall answer or
supplement its answers to the remaining interrogatories. To the
extent that the remaining interrogatories exceed the numerical

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Case 1:12-cv-06811-CM-JCF Document 151 Filed 12/10/12 Page 17 of 18

limitations under Rule 33 of the Federal Rules of Civil Procedure,


the Court grants PHL leave to serve the additional interrogatories.


See Fed. R. Civ. P. 33 (a) (1) .


Conclusion


US Bank's motion to compel (Docket no. 141) is granted in part

and denied in part to the extent indicated above. The plaintiff

shall respond to US Bank's discovery requests as set forth in this

order by January 7, 2013.

SO ORDERED.

d~ t· ~etM.wjE:'


JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

Dated:

New York, New York
December 10, 2012

Copies mailed this date:


Khai LeQuang, Esq.

Orrick Herrington & Sutcliffe LLP

2050 Main Street, Suite 1100

Irvine, CA 92614


Melanie D. Phillips, Esq.

Orrick Herrington & Sutcliffe LLP

777 South Figueroa St., Suite 2200

Los Angeles, CA 90017


Philipp Smaylovsky, Esq.

Stephen G. Foresta, Esq.

Shaila R. Diwan, Esq.

Orrick Herrington & Sutcliffe LLP

51 West 52nd Street

New York, NY 10019


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Case 1:12-cv-06811-CM-JCF Document 151 Filed 12/10/12 Page 18 of 18

Stephen J. Jorden, Esq.

Brian P. Perryman, Esq.

Jason H. Gould, Esq.

Waldemar J. Pflepsen, Jr., Esq.

Jorden Burt LLP

1025 Thomas Jefferson St., N.W.

Suite 400 East

Washington, D.C. 20007


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