Jonathan A. Shapiro (257199) Mintz Levin Cohn Ferris Glovsky and Popeo PC 44 Montgomery Street San Francisco, California 94104 Tel: (415) 432-6000 Fax: (415) 432-6001 JAShapiro@mintz.com Andrea J. Robinson (pro hac vice) Timothy J. Perla (pro hac vice) Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, Massachusetts 02109 Tel: (617) 526-6000 Fax: (617) 526-5000 andrea.robinson@wilmerhale.com timothy.perla@wilmerhale.com Attorneys for Defendant Life Insurance Company of the Southwest UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated, Plaintiffs, vs. LIFE INSURANCE COMPANY OF THE SOUTHWEST, a Texas corporation, and DOES 1-50 Defendant.

Case No.: CV 10-9198-JVS(RNBx) RESPONSE TO PLAINTIFFS’ “EVIDENTIARY OBJECTIONS” TO SHOW CAUSE SUBMISSION Judge: Hon. James V. Selna Date: May 20, 2013 Time: 1:30 P.M. Courtroom: 10C

Case 2:10-cv-09198-JVS-RNB Document 438 Filed 05/09/13 Page 1 of 5 Page ID #:19923

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RESPONSE TO EVIDENTIARY OBJECTIONS, 10-CV-09198-JVS (RNBx)

Defendant Life Insurance Company of the Southwest (“LSW”) hereby

responds to Plaintiffs’ Evidentiary Objections to the Declaration of Timothy Perla

and the Declaration of Caitlin Monahan, Docket Nos. 436-437 (the “New Filings”). I. ARGUMENT

The Court should disregard Plaintiffs’ New Filings for three reasons. First,

Plaintiffs’ latest papers are, in substance, just more advocacy, which is improper

because the Court made clear that there would be “no replies.” Dkt. 417 at 3. Each

of the New Filings begins with a lengthy substantive argument before one even

reaches the charts that purport to contain “objections.” The charts themselves also

go well beyond offering objections (i.e., a few words or a rule citation), but instead

include lengthy substantive argument about interpreting disputed evidence. The

papers are, in effect, improper reply briefs.

Second, the rules do not permit evidentiary objections at this stage. Compare

L.R. 16-6.3 (rule provides for objections “in the Final Pretrial Conference Order,”

but not before). Indeed, this Court has already held that evidence presented on

“class certification need not be admissible at trial.” Dkt. 353 at 13.

Third, Plaintiffs have violated the local rules in making their objections. They

did not meet and confer with LSW. L.R. 7-3; cf. L.R. 16-2.6 (in connection with

trial, parties must “attempt to resolve any objections to the admission of testimony,

documents, or other evidence”). They did not properly notice their objections. L.R.

7-4. They did not give LSW an opportunity to respond. L.R. 7-9. And they did not

give the Court time to consider the objections. L.R. 6-1.

Alternately, if the Court does consider Plaintiffs’ objections on their merits,

the objections should be overruled. Plaintiffs’ “relevance” and “completeness”

objections to each exhibit to the Monahan Declaration are misplaced. Dkt. 436 at

1-14. Plaintiffs argue that each exhibit is irrelevant or incomplete because other

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RESPONSE TO EVIDENTIARY OBJECTIONS, 10-CV-09198-JVS (RNBx)

documents in the policyholder files (e.g., Agent’s Reports) might be sufficient to

determine illustration receipt. Id. But not all policyholder files with confusing

documents like the Monahan exhibits—or other conflicting or ambiguous

evidence—will contain Agent’s Reports. And, even where a particular file does

have one or two documents that Plaintiffs contend would be sufficient to adjudicate

illustration receipt, one needs to review the file as a whole in order to find and

interpret them. The Monahan exhibits are relevant precisely because they are

examples of instances in which a reviewer could be confused or slowed down, which

further highlights why the exercise requires an unmanageable individualized inquiry

that is inconsistent with predominance and superiority requirements.

Plaintiffs’ objections to the Perla Declaration are similarly unavailing.

Plaintiffs assert that neither (i) a checked box on the policy application nor (ii) an

agent’s failure to list an illustration in the Agent’s Report proves a lack of illustration

receipt. Dkt. 437 at 2-3. Therefore, Plaintiffs conclude, evidence that the box was

checked or that an illustration was not listed in the Agent’s Report is both irrelevant

and misleading. Id. at 3-4. But evidence can be relevant and probative, even if

standing alone it doesn’t prove a disputed fact.1 The checked-box and

Agent’s-Report evidence cited in the Perla Declaration tend to suggest a lack of

illustration receipt. For instance, the Agent’s Report instructs the agent to list

materials used, including illustrations—so, the failure to list an illustration in

1 See Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 193 (S.D.N.Y. 2008) (“Evidence to be relevant does not by itself have to prove the ultimate proposition for which it is offered … It is enough that the evidence has a tendency to make a consequential fact even the least bit more probable or less probable[.]”) (quoting Fed. R. Evid. 401 cmt.).

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RESPONSE TO EVIDENTIARY OBJECTIONS, 10-CV-09198-JVS (RNBx)

response is plainly probative and relevant. LSW would be entitled to have that

evidence admitted and to argue those inferences to the special master and a jury.

If anything, the very fact that there are detailed evidentiary disputes about the

contents of policy files shows that their review cannot appropriately be outsourced

to a vendor. II. CONCLUSION

Plaintiffs’ objections should be disregarded or, in the alternative, overruled.

Dated: May 9, 2013 /s/ Jonathan A. Shapiro Jonathan A. Shapiro

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RESPONSE TO EVIDENTIARY OBJECTIONS, 10-CV-09198-JVS (RNBx)

CERTIFICATE OF SERVICE

I am a resident of the Commonwealth of Massachusetts, over the age of eighteen years, and not a party to the within action. My business address is Wilmer Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston, Massachusetts 02114. On May 9, 2013 I served the within document(s):

 RESPONSE TO EVIDENTIARY OBJECTIONS

  I electronically filed the document(s) listed above via the CM/ECF system.

Charles N. Freiberg Brian P. Brosnahan Jacob N. Foster Jeanette T. Barzelay KASOWITZ, BENSON, TORRES & FREIDMAN LLP 101 California Street, Suite 2300 San Francisco, CA 94111 cfreiberg@kasowitz.com bbrosnahan@kasowitz.com jfoster@kasowitz.com Harvey R. Levine Levine & Miller 550 West C Street, Suite 1810 San Diego, CA 92101 lmsh@levinelaw.com Craig A. Miller Law Offices of Craig A. Miller 225 Broadway, Suite 1310 San Diego, CA 92101 cmiller@craigmillerlaw.com /s/ Joel Fleming

Joel Fleming

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