e 2:10-cv-09198-JVS-RNB Document 408 Filed 03/18/13 Page1of6 Page ID #:18138

JONATHAN A. SHAPIRO (257199)

WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road

Palo Alto, CA 94304

Tel: (650) 858-6101

Fax: (650) 858-6100

jonathan.shapiro @ wilmerhale.com

ANDREA J. ROBINSON (PRO HAC VICE) TIMOTHY J. PERLA (PRO HAC VICE) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street

Boston, MA 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 Case No.: 10-09198 JVS(RNBx) HOWLETT, and MURIEL SPOONER on behalf of themselves and all others NOTICE OF MOTION AND MOTION similarly situated, TO APPOINT SPECIAL MASTER Plaintiffs, Judge: Hon. James V. Selna Date: April 22, 2013 VS. Time: 1:30 P.M.

Courtroom: 10C LIFE INSURANCE COMPANY OF THE SOUTHWEST, a Texas corporation, and DOES 1-50,

Defendant.

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1 NOTICE OF MOTION AND MOTION TO STRIKE ERRATA SHEETS, DEPOSITION EXHIBIT, AND DEPOSITION TESTIMONY

3 TO THE COURT, PLAINTIFFS, AND ALL COUNSEL OF RECORD:

4 PLEASE TAKE NOTICE that on April 22, 2013 at 1:30 P.M. PST, or as soon

thereafter as the matter may be heard, in Courtroom 10C, located at 411 West Fourth

7 || Street, Santa Ana, California, 92701, Defendant Life Insurance Company of the

8 || Southwest (“LSW”) will, and hereby does, move the Court for an order to appoint a special master. Specifically, LSW asks that the Court enter the Proposed Order attached

11 || hereto. The Proposed Order asks the Court to order as follows:

- 1. The parties are to meet and confer for the purpose of selecting a special , master, following the procedure set forth in the attached Proposed Order. 15 2. Once a special master has been selected and retained, LSW shall provide IS him or her with copies of all policy files LSW extracted and produced in response to Plaintiffs’ Request for Production No. 173. In addition, LSW 19 shall provide the special master with one copy of an application, an

sa illustration, and an agent’s report from the files of one of the named

. Plaintiffs. LSW shall also provide the special master with one copy of a 23 sales illustration certification form.

a 3. The special master shall then promptly begin reviewing the policy files to i determine whether the owner of each policy is a member of the Illustrations pei

28 ie

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subclass, defined in the Court’s order granting in part and denying in part

Plaintiffs’ motion for class certification (Dkt. 353).

. In reviewing the files to determine subclass membership, the Special

Master shall follow the procedure and apply the burden of proof set forth in

the Proposed Order.

. The special master shall issue three interim reports, in the format and

containing the information set forth in the Proposed Order, to be filed electronically with the Court. The first report shall be prepared and filed after review of the first 14,000 policy files, the second report after review of the next 14,000 policy files and the final report after all policy files have

been reviewed.

. The parties shall file any objections to each special master report within

twenty-one days of the report being filed. The objections shall conform to the format set forth in the Proposed Order. The non-objecting party shall file any response to any objections within seven days. The responses shall

conform to the format set forth in the Proposed Order.

. The Court shall review all objections de novo.

. The special master shall not engage in any ex parte communications with

the Court or with either party.

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l 9. Plaintiffs shall pay the special master. The special master shall be paid an hourly rate as well as reimbursement of reasonable expenses, as set forth in if the Proposed Order. 5 10. The special master shall bill no more than fifteen (15) minutes per policy file reviewed. This does not include any other time, such as time for g gathering documentation or preparing a report. 9 11. The special master shall keep all records that he or she reviews | confidential, in accordance with the Court’s protective orders (Dkt. 103 and 12 381). Pursuant to Federal Rule of Evidence 502(d), the production of 7 documents to the special master shall not waive the attorney-client . privilege, the attorney work product doctrine, or any other applicable 16 privilege or protection in this or any other proceeding. 1 This Motion is made following several discussions between counsel pursuant to , Local Rule 7-3 and 37-1. 20 This Motion is supported by the accompanying Joint Stipulation of Points and Authorities, a Proposed Order, the Declaration of Timothy Perla and supporting . exhibits, and such other evidence or argument as may be presented at or before the 24 |\hearing. 25 26 pai 28 wale

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1 Respectfully submitted,

3 WILMER CUTLER PICKERING HALE AND DORR LLP

3 By: /s/ Jonathan A. Shapiro

Jonathan A. Shapiro (257199) 7 Andrea J. Robinson (pro hac vice) Timothy J. Perla (pro hac vice)

9 Attorneys for Defendant Life Insurance Company of the Southwest

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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 02109. On March 18, 2013 I served the within document(s):

LIFE INSURANCE COMPANY OF THE SOUTHWEST?’S NOTICE OF MOTION AND MOTION TO APPOINT A SPECIAL MASTER

I placed the document(s) listed above in a sealed envelope with postage

a fully prepaid, in the United States mail addressed as set forth elow.

I personally caused to be hand delivered the document(s) listed above to

the persons) at the address(es) set forth below.

I emailed the document(s) listed above to the person(s) at the address(es) set forth below.

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

Charles N. Freiberg

Brian P. Brosnahan

Jacob N. Foster

Jeanette T. Barzela

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 Imsh@levinelaw.com

Craig A. Miller

Law Offices of Craig A. Miller 225 Broadway, Suite 1310

San Diego, CA 92101 cmiller@craigmillerlaw.com

/s/ Joel Flemin Joel Fleming

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