KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB Document 436 Filed 05/08/13 Page1of15 Page ID
#:19896

—

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
CHARLES N. FREIBERG (SBN 70890)
BRIAN P. BROSNAHAN (SBN 112894)
JACOB N. FOSTER (SBN 250785)
31 101 California Street, Suite 2300
San Francisco, California 94111
4! Telephone: (415) 421-6140
Facsimile: (415) 398-5030

LAW OFFICES OF CRAIG A. MILLER
CRAIG A. MILLER (SBN 116030)
225 ia asa Ok Suite 1310
7|| San Diego, CA 92101
Telephone: (619) 231-9449
8]| Facsimile: (619) 231-8638

9} Attorneys for Plaintiffs
JOYCE WALKER, KIM BRUCE HOWLETT,
10|| and MURIEL SPOONER, on behalf of themselves
and all others similarly situated

NO

(2 4

2 UNITED STATES DISTRICT COURT
13 CENTRAL DISTRICT OF CALIFORNIA
14

15| JOYCE WALKER, KIM BRUCE CLASS ACTION

HOWLETT, and MURIEL SPOONER,
16|| on behalf of themselves and all others CASE NO.: CV 10-9198 JVS (RNBx)

similarly situated,

17 — Formerly Case No.: 3:10-cv -04852 JSW
Plaintiffs, from Northern District of California

18

Me PLAINTIFFS’ EVIDENTIARY

19] LIFE INSURANCE COMPANY OF _ | OBJECTIONS TO THE TLIN

ao MONAHAN CONCERNING POLICY

21 .
i Judge James V. Selna

Date: May 20, 2013
23 Time: 1:30 p.m.
Courtroom: 10C

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW
Case No. CV 10-9198 JVS (RNBx)

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB Document 436 Filed 05/08/13 Page 2of15 Page ID

#:19897

Plaintiffs Joyce Walker, Kim Bruce Howlett, and Muriel Spooner

(“Plaintiffs”) hereby object to the Declaration of Caitlin Monahan Concerning

Policy File Review (“Monahan Dec.”’), submitted by Defendant Life Insurance

Company of the Southwest (“LSW’”’) in response to the Court’s April 12, 2013

Order to Show Cause.

Ms. Monahan declares that she and other attorneys working with her

reviewed “less than 2%” of the “at least 42,554 policy files” produced by LSW, or

approximately 800-900 files. Monahan Dec. 2, 4. Ms. Monahan’s declaration

discusses 13 specific files from that review. Of the 13 files selected out of the 800-

900 files that were reviewed as being files that show the purported difficulty of the

file review process, 12 have conclusive file evidence of sales illustration use that

can be determined in purely ministerial fashion by the vendor. Only | case is

inconclusive and would require a questionnaire. Plaintiffs submit the following

evidentiary objections on relevance and rule of completeness grounds and to

correct LSW’s misleading representations of the policy file evidence.

Evidence

Grounds for Objection(s)

—

Exhibit A, which
Ms. Monahan
declares, in [8, is
“a true and
correct copy of
excerpts from the
file for policy
LS0248396,
which contains a
signature page
from one
illustration that is
tacked onto a
different
illustration.”

1. Lacks foundation for relevance. Ms. Monahan
provides no foundation for the relevance of Exhibit A or
the fact that the file for policy LS0248396 “contains a
signature page from one illustration that is tacked onto a
different illustration.”

First, Ms. Monahan provides no foundation that it would
be necessary to consult the illustration in this instance
because the file for policy LS0248396 contains an
application in which the sales illustration certification
box is not checked, which establishes subclass
membership in accordance with the rules set forth in the
Court’s November 9, 2012 Order.

Second, even if one were to consult the illustration
attached as Exhibit A, the signature page (which
includes both the signature date and the print date of the

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW
Case No. CV 10-9198 JVS (RNBx)

1

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB Document 436 Filed 05/08/13 Page 3of15 Page ID

#:19898

Evidence

Grounds for Objection(s)

illustration) is the key part of the illustration that
determines whether the illustration establishes subclass
membership (i.e., whether the illustration was created on
or before the date of policy application and signed on or
before the date of policy issuance). Ms. Monahan
provides no foundation to establish that it makes any
difference for purposes of determining subclass
membership that a signature page for one illustration is
attached to a different illustration, provided that the
signed illustration meets the criteria set forth by the
Court. FRE 401, 402, 602.

2. Misleading; rule of completeness. Exhibit A, which
contains selected excerpts from the file for policy
LS0248396, may mislead the trier of fact, as it falsely
suggests that the file for policy LS0248396 is
inconclusive with respect to evidence of sales illustration
receipt or that it would be difficult to determine whether
the holder of policy LS0248396 received a sales
illustration, when in fact the policy file contains an
application in which the sales illustration certification
box is not checked, which establishes subclass
membership. Plaintiffs offer the application for policy
LS0248396 under the rule of completeness. FRE 106,
403; see Declaration of Lesa Dinglasan in Response to
Monahan Declaration (“Dinglasan Dec. Re Monahan
Dec.”) {3, Ex. A.

Exhibit B, which
Ms. Monahan
declares, in 10,
is “a true and
correct copy of
excerpts from the
file for policy
LS0152759,
which contains
multiple
applications;
those applications

1. Lacks foundation for relevance. Ms. Monahan
provides no foundation for the relevance of Exhibit B or
the fact that the file for policy LS0152759 “contains
multiple applications” which “contain contradictory
indications concerning illustration use.”

First, Ms. Monahan provides no foundation that it would
be necessary to consult the applications in this instance
because the file for policy LS0152759 contains an
Agent’s Report which states that an illustration was
used, which establishes subclass membership in
accordance with the rules set forth in the Court’s

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW

Case No. CV 10-9198 JVS (RNBx)

2

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB Document 436 Filed 05/08/13 Page 4of15 Page ID

#:19899

illustration use.”

Evidence Grounds for Objection(s)
contain November 9, 2012 Order.
contradictory
indications Second, even if one were to consult the applications, Ms.
concerning Monahan provides no foundation to establish that it

would be difficult to determine which application should
control based on the date on which each application was
signed (the later application controls) and on which
application matches the policy as issued. FRE 401, 402,
602.

2. Misleading; rule of completeness. Exhibit B, which
contains selected excerpts from the file for policy
LS0152759, may mislead the trier of fact, as it falsely
suggests that the file for policy LS0152759 is
inconclusive with respect to evidence of sales illustration
receipt or that it would be difficult to determine whether
the holder of policy LS0152759 received a sales
illustration, when in fact the policy file contains an
Agent’s Report which states that an illustration was
used, which establishes subclass membership. Plaintiffs
offer the Agent’s Report for policy LS0152759 under the
rule of completeness. FRE 106, 403; see Dinglasan Dec.
Re Monahan Dec. {[4, Ex. B.

Exhibit C, which
Ms. Monahan
declares, in {11,
is “a true and
correct copy of
excerpts from the
file for policy
LS0171145,
which contains
applications from
different states.”

1. Lacks foundation for relevance. Ms. Monahan
provides no foundation for the relevance of Exhibit C or
the fact that the file for policy LSO171145 “contains
applications from different states.”

First, Ms. Monahan provides no foundation that it would
be necessary to consult the application in this instance
because the file for policy LS0171145 contains an
Agent’s Report which states that an illustration was
used, which establishes subclass membership in
accordance with the rules set forth in the Court’s
November 9, 2012 Order.

Second, even if one were to consult the applications, the
non-California policy application is immaterial because
the class is defined in terms of policies issued in
California only. Ms. Monahan provides no foundation to

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW

Case No. CV 10-9198 JVS (RNBx)

3

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB Document 436 Filed 05/08/13 Page5of15 Page ID

#:19900

Evidence

Grounds for Objection(s)

establish that it would be difficult to determine which is
the application from California or that it makes any
difference that a policy file contains an application from
another state. FRE 401, 402, 602.

2. Misleading; rule of completeness. Exhibit C, which
contains selected excerpts from the file for policy
LS0171145, may mislead the trier of fact, as it falsely
suggests that the file for policy LSO171145 is
inconclusive with respect to evidence of sales illustration
receipt or that it would be difficult to determine whether
the holder of policy LS0O171145 received a sales
illustration, when in fact the policy file contains an
Agent’s Report which states that an illustration was
used, which establishes subclass membership. Plaintiffs
offer the Agent’s Report for policy LSO171145 under the
rule of completeness. FRE 106, 403; see Dinglasan Dec.
Re Monahan Dec. {[5, Ex. C.

Exhibit D, which
Ms. Monahan
declares, in {12,
is “a true and
correct copy of
excerpts from the
file for policy
LS0237539,
which contains
an application
and illustrations
for two different
types of
policies.”

1. Lacks foundation for relevance. Ms. Monahan
provides no foundation for the relevance of Exhibit D or
the fact that the file for policy LS0237539 “contains an
application and illustrations for two different types of
policies.”

First, Ms. Monahan provides no foundation that it would
be necessary to consult the illustration in this instance
because the file for policy LS0237539 contains an
Agent’s Report which states that a computer
illustration was used, which establish subclass
membership in accordance with the rules set forth in the
Court’s November 9, 2012 Order.

Second, even if one were to consult the illustrations —
one of which is for the SecurePlus Provider policy, and
one of which is for an LSW Foundation UL policy — the
illustration for the LSW Foundation UL policy is
immaterial because the class includes only those
individuals who purchased either a SecurePlus Provider
or SecurePlus Paragon policy. Ms. Monahan provides

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW

Case No. CV 10-9198 JVS (RNBx)

4

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB Document 436 Filed 05/08/13 Page 6of15 Page ID

#:19901

Evidence

Grounds for Objection(s)

no foundation to establish that it would be difficult to
determine which is the SecurePlus Provider illustration
or that it makes any difference that a policy file may
contain an illustration pertaining to a different type of
policy. FRE 401, 402, 602.

2. Misleading; rule of completeness. Exhibit D, which
contains selected excerpts from the file for policy
LS0237539, may mislead the trier of fact, as it falsely
suggests that the file for policy LS0237539 is
inconclusive with respect to evidence of sales illustration
receipt or that it would be difficult to determine whether
the holder of policy LS0237539 received a sales
illustration, when in fact the policy file contains an
Agent’s Report which states that a computer
illustration was used, which establish subclass
membership. Plaintiffs offer the Agent’s Report for
policy LS0237539 under the rule of completeness. FRE
106, 403; see Dinglasan Dec. Re Monahan Dec. {(6, Ex.
D.

Exhibit E, which
Ms. Monahan
declares, in 713,
is “a true and
correct copy of
excerpts from the
file for policy
LS0152759,
which contains
evidence of six
illustrations.”

1. Lacks foundation for relevance. Ms. Monahan
provides no foundation for the relevance of Exhibit E or
the fact that the file for policy LSO152759 “contains
evidence of six illustrations.”

First, Ms. Monahan provides no foundation that it would
be necessary to consult the illustrations in this instance
because the file for policy LS0152759 contains an
Agent’s Report which states that an illustration was
used, which establishes subclass membership in
accordance with the rules set forth in the Court’s
November 9, 2012 Order.

Second, even if one were to consult the illustrations, the
only illustrations that would be relevant to determining
subclass membership are those that were both created on
or before the date of policy application and signed on or
before the date of policy issuance. Ms. Monahan
provides no foundation to establish that any of the

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW

Case No. CV 10-9198 JVS (RNBx)

=)

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB Document 436 Filed 05/08/13 Page 7 of15 Page ID

#:19902

Evidence

Grounds for Objection(s)

illustrations meet these criteria or that it would be
difficult to determine which illustrations are relevant to
determining subclass membership. FRE 401, 402, 602.

2. Misleading; rule of completeness. Exhibit E, which
contains selected excerpts from the file for policy
LS0152759, may mislead the trier of fact, as it falsely
suggests that the file for policy LS0152759 is
inconclusive with respect to evidence of sales illustration
receipt or that it would be difficult to determine whether
the holder of policy LS0152759 received a sales
illustration, when in fact the policy file contains an
Agent’s Report which states that an illustration was
used, which establishes subclass membership. Plaintiffs
offer the Agent’s Report for policy LS0152759 under the
rule of completeness. FRE 106, 403; see Dinglasan Dec.
Re Monahan Dec. {4, Ex. B.

Exhibit F, which
Ms. Monahan
declares, in 14,
is “a true and
correct copy of
excerpts from the
file for policy
LS0175010,
which contains
an illustration
signed on two
different dates.”

1. Lacks foundation for relevance. Ms. Monahan
provides no foundation for the relevance of Exhibit F or
the fact that the file for policy LSO175010 “contains an
illustration signed on two different dates.”

First, Ms. Monahan provides no foundation that it would
be necessary to consult the illustration in this instance
because the file for policy LS0175010 contains an
Agent’s Report which states that the sales software
was used, which establishes subclass membership in
accordance with the rules set forth in the Court’s
November 9, 2012 Order.

Second, even if one were to consult the illustration, the
illustration is only relevant to determining subclass
membership if it was both created on or before the date
of policy application and signed on or before the date of
policy issuance. Ms. Monahan provides no foundation
to establish that the illustration meets these criteria or
that it makes any difference that the illustration is signed
on two different dates. FRE 401, 402, 602.

2. Misleading; rule of completeness. Exhibit F, which

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW
Case No. CV 10-9198 JVS (RNBx)

6

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB

Document 436 Filed 05/08/13 Page 8of15 Page ID
#:19903

Evidence

Grounds for Objection(s)

contains selected excerpts from the file for policy
LS0175010, may mislead the trier of fact, as it falsely
suggests that the file for policy LSO175010 is
inconclusive with respect to evidence of sales illustration
receipt or that it would be difficult to determine whether
the holder of policy LSO175010 received a sales
illustration, when in fact the policy file contains an
Agent’s Report which states that the sales software
was used, which establishes subclass membership.
Plaintiffs offer the Agent’s Report for policy LS0175010
under the rule of completeness. FRE 106, 403; see
Dinglasan Dec. Re Monahan Dec. 7, Ex. E.

Exhibit G, which
Ms. Monahan
declares, in 15,
is “a true and
correct copy of
excerpts from the
file for policy
LS0181364,
which contains
an application
signed on two
different dates.”

1. Lacks foundation for relevance. Ms. Monahan
provides no foundation for the relevance of Exhibit G or
the fact that the file for policy LSO181364 “contains an
application signed on two different dates.”

Ms. Monahan provides no foundation to establish that it
makes any difference that an application is signed on
two different dates or that it would be difficult to
determine which application should control based on the
date on which each application was signed (the later
application) and on which application matches the policy
as issued. FRE 401, 402, 602.

2. Misleading; rule of completeness. Exhibit G, which
contains selected excerpts from the file for policy
LS0181364, may mislead the trier of fact, as it falsely
suggests that it would be difficult to analyze the file data
for policy LSO181364, when in fact the policy file
contains no sales illustration and an Agent’s Report
which states that no sales materials were used.
Plaintiffs offer the Agent’s Report for policy LS0O181364
under the rule of completeness. FRE 106, 403; see
Dinglasan Dec. Re Monahan Dec. {[8, Ex. F.

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW
Case No. CV 10-9198 JVS (RNBx)

a

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB

—

Document 436 Filed 05/08/13 Page9of15 Page ID
#:19904

Evidence

Grounds for Objection(s)

Exhibit H, which
Ms. Monahan
declares, in (16,
is “a true and
correct copy of
excerpts from the
file for policy
LS0141433,
which does not
contain a pre-sale
illustration, but
contains an
application
suggesting
illustration use.”

1. Lacks foundation for relevance. Ms. Monahan
provides no foundation for the relevance of Exhibit H or
the fact that the file for policy LSO141433 “does not
contain a pre-sale illustration, but contains an application
suggesting illustration use.”

Ms. Monahan provides no foundation to establish that
the absence of a sales illustration in a policy file is
relevant where the policy file contains an application
on which the sales illustration certification box is not
checked. The application attached as Exhibit H is
sufficient by itself to establish subclass membership in
accordance with the rules set forth in the Court’s
November 9 Order regardless of whether there is a sales
illustration in the file. FRE 401, 402, 602.

Exhibit I, which
Ms. Monahan
declares, in 17,
is “a true and
correct copy of
excerpts from the
file for policy
LS0185741,
which contains
an illustration in
which the
creation date and
signature date are
different.”

1. Lacks foundation for relevance. Ms. Monahan
provides no foundation for the relevance of Exhibit I or
the fact that the file for policy LSO185741 “contains an
illustration in which the creation date and signature date
are different.”

First, Ms. Monahan provides no foundation that it would
be necessary to consult the illustration in this instance
because the file for policy LS0185741 contains an
Agent’s Report which states that an illustration was
used, which establishes subclass membership in
accordance with the rules set forth in the Court’s
November 9, 2012 Order.

Second, even if one were to consult the illustration, the
illustration is relevant to determining subclass
membership if it was created on or before the date of
policy application and signed on or before the date of
policy issuance, which implicitly recognizes that the
creation date and signature date may not and need not
match. Ms. Monahan provides no foundation to
establish that it makes any difference for purposes of
determining subclass membership that the creation date

and signature date on the illustration are different. FRE

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW
Case No. CV 10-9198 JVS (RNBx)

8

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB Document 436 Filed 05/08/13 Page 10o0f15 Page ID

#:19905

Evidence

Grounds for Objection(s)

401, 402, 602.

2. Misleading; rule of completeness. Exhibit I, which
contains selected excerpts from the file for policy
LS0185741, may mislead the trier of fact, as it falsely
suggests that the file for policy LS0O185741 is
inconclusive with respect to evidence of sales illustration
receipt or that it would be difficult to determine whether
the holder of policy LSO185741 received a sales
illustration, when in fact the policy file contains an
Agent’s Report which states that an illustration was
used, which establishes subclass membership. Plaintiffs
offer the Agent’s Report for policy LSO185741 under the
rule of completeness. FRE 106, 403; see Dinglasan Dec.
Re Monahan Dec. {[9, Ex. G.

Exhibit J, which
Ms. Monahan
declares, in 18,
is “a true and
correct copy of
excerpts from the
file for policy
LS0188390,
which contains
an illustration
bearing a
signature date
that pre-dates the
illustration’ s
creation date.”

1. Lacks foundation; irrelevant. Ms. Monahan provides
no foundation for the relevance of Exhibit J or the fact
that the file for policy LS0O188390 “contains an
illustration bearing a signature date that pre-dates the
illustration’s creation date.”

First, Ms. Monahan provides no foundation that it would
be necessary to consult the illustration in this instance
because the file for policy LS0188390 contains an
Agent’s Report which states that a sales illustration
was used, which establishes subclass membership in
accordance with the rules set forth in the Court’s
November 9, 2012 Order.

Second, even if one were to consult the illustration, the
illustration is relevant to determining subclass
membership only if it was created on or before the date
of policy application and signed on or before the date of
policy issuance. Ms. Monahan provides no foundation
to establish that it makes any difference for purposes of
determining subclass membership that the signature date
pre-dates that illustration’s creation date or that it would
be difficult to determine whether such an illustration
meets the criteria set by the Court. FRE 401, 402, 602.

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW
Case No. CV 10-9198 JVS (RNBx)

g

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB Document 436 Filed 05/08/13 Page 11o0f15 Page ID

#:19906

Evidence

Grounds for Objection(s)

2. Misleading; rule of completeness. Exhibit J, which
contains selected excerpts from the file for policy
LS0188390, may mislead the trier of fact, as it falsely
suggests that the file for policy LS0O188390 is
inconclusive with respect to evidence of sales illustration
receipt or that it would be difficult to determine whether
the holder of policy LSO188390 received a sales
illustration, when in fact the policy file contains an
Agent’s Report which states that a sales illustration
was used, which establishes subclass membership.
Plaintiffs offer the Agent’s Report for policy LSO188390
under the rule of completeness. FRE 106, 403; see
Dinglasan Dec. Re Monahan Dec. (10, Ex. H.

-| Exhibit K, which

Ms. Monahan
declares, in 19,
is “a true and
correct copy of
excerpts from the
file for policy
LS0178299,
which contains
an illustration
that is missing
pages.”

1. Lacks foundation for relevance. Ms. Monahan
provides no foundation for the relevance of Exhibit K or
the fact that the file for policy LSO178299 “contains an
illustration that is missing pages.”

First, Ms. Monahan provides no foundation that it would
be necessary to consult the illustration in this instance
because the file for policy LS0178299 contains an
Agent’s Report which states that an illustration was
used and a policy application in which the sales
illustration certification box is not checked, which
establish subclass membership in accordance with the
rules set forth in the Court’s November 9, 2012 Order.

Second, even if one were to consult an illustration that is
missing pages, Ms. Monahan provides no foundation to
establish that it would be difficult to determine whether
the pages that are present in the file contain sufficient
information to determine whether the illustration
establishes subclass membership in accordance with the
rules established by the Court, and there is a presumption
that if a policyholder received any part of an illustration,
he received a complete illustration. FRE 401, 402, 602;
See Cal. Ins. Code § 10509.955(b)(6) (prohibiting an
insurer or agent from providing an applicant with “an
incomplete illustration’); Civ. Code § 3548

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW
Case No. CV 10-9198 JVS (RNBx)

10

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB Document 436 Filed 05/08/13 Page 12o0f15 Page ID

#:19907

Evidence

Grounds for Objection(s)

(presumption that “[t]he law has been obeyed.”’);
Hinckley v. Bechtel Corp., 41 Cal. App. 3d 206, 212-13
(1974).

2. Misleading; rule of completeness. Exhibit K, which
contains selected excerpts from the file for policy
LS0178299, may mislead the trier of fact as it falsely
suggests that the file for policy LSO178299 contains an
illustration that is missing pages, when in fact the policy
file produced by LSW in February 2012 (bearing
Bates numbers LSW-E8849926-LS W-E8850195)
contains a complete version of the illustration created
on October 8, 2008 (at Bates numbers LSW-
E8850157-LSW-E8850181), which was signed by the
policyholder on October 8, 2008 (the same date as
policy application), establishing subclass membership.
Exhibit K may further mislead the trier of fact, as it
falsely suggests that the file for policy LSO178299 is
inconclusive with respect to evidence of sales illustration
receipt or that it would be difficult to determine whether
the holder of policy LSO178299 received a sales
illustration, when in fact the policy file contains both
an Agent’s Report which states that an illustration
was used and a policy application in which the sales
illustration certification box is not checked, which
also establish subclass membership. Plaintiffs offer the
complete sales illustration, the Agent’s Report, and the
policy application for policy LSO178299 under the rule
of completeness. FRE 106, 403; see Dinglasan Dec. Re
Monahan Dec. {]11, Ex. I.

12.| Exhibit L, which
Ms. Monahan
declares, in 20,
is “‘a true and
correct copy of
excerpts from the
file for policy
LS0145682,
which contains

1. Lacks foundation for relevance; vague, ambiguous,
and conclusory. Ms. Monahan provides no foundation
for the relevance of Exhibit L or the fact that the file for
policy LS0145682 “contains an Agent’s Report that
includes information about illustration use which
contradicts other file contents.””» Ms. Monahan also fails
to specify what it means for the Agent’s Report to
“contradict[] other file contents.” FRE 403, 602, 611(a).

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW
Case No. CV 10-9198 JVS (RNBx)

11

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB Document 436 Filed 05/08/13 Page 13 0f15 Page ID

#:19908

information about
illustration use
which contradicts
other file
contents.”

Evidence Grounds for Objection(s)
ae cee Ms. Monahan provides no foundation to establish the
eth ee relevance of the fact that the policy file contains an
includes

application on which the sales illustration certification
box is checked (which does not mean a sales illustration
was not used), especially in this instance, where the
policy file contains an Agent’s Report for policy
LS0145682 which states that “illustration software”
was used. Nor does Ms. Monahan provide any
foundation to establish that the Agent’s Report
“contradicts” other file contents. The Agent’s Report
attached as part of Exhibit L is sufficient to establish
subclass membership by itself in accordance with the
rules set forth in the Court’s November 9, 2012 Order
regardless of whether the box on the application is
checked. FRE 401, 402, 602.

2. Misleading. Ms. Monahan’s testimony that the
Agent’s Report for policy LS0145682 “includes
information about illustration use which contradicts
other file contents” may mislead the trier of fact, as it
falsely suggests that the fact that the sales illustration
certification box on the application is checked is proof
that no sales illustration was used. In actuality, that the
policy application checkbox is checked means only that
an illustration of the policy applied for was not used or
enclosed with the application; it does not mean a sales
illustration was not used and is equally consistent with
use of a sales illustration that differs from the policy
applied for. FRE 403; see Plaintiffs’ Submission Re
Identification of Class Members, Dkt. 339, at 3-5; Supp.
Dinglasan Dec., Dkt. 339-2; Plaintiffs’ Motion for Leave
to File a Reply to LSW’s Substituted Supplemental
Memorandum, Dkt. 348 at 4-5; Plaintiffs’ Memorandum
in Opposition to LSW’s Motion to Appoint a Special
Master, Dkt. 413, at 21-23.

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW
Case No. CV 10-9198 JVS (RNBx)

12

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB Document 436 Filed 05/08/13 Page 14o0f15 Page ID

#:19909

Evidence Grounds for Objection(s)
13.) Exhibit M, which | 1. Lacks foundation for relevance. Ms. Monahan

Ms. Monahan provides no foundation for the relevance of Exhibit M or

declares, in {21, | the fact that the file for policy LS0204769 “contains an

is “a true and application on which the note ‘NA’ is written next to the

correct copy of Sales Illustration Certification.”

excerpts from the

file for policy First, Ms. Monahan provides no foundation that it would

LS0204769, be necessary to consult the application in this instance

which contains because the file for policy LS0204769 contains an

an application on | Agent’s Report which states that an illustration was

which the note used and a sales illustration that was signed on or

‘NA’ is written __| before the date of policy issuance, which establish

next to the Sales | Subclass membership in accordance with the rules set

Illustration forth in the Court’s November 9, 2012 Order. FRE 401,

Certification.” 402, 602.
2. Misleading; rule of completeness. Exhibit M, which
contains selected excerpts from the file for policy
LS0204769, may mislead the trier of fact as it falsely
suggests that the file for policy LS0204769 is
inconclusive with respect to evidence of sales illustration
receipt or that it would be difficult to determine whether
the holder of policy LS0204769 received a sales
illustration, when in fact the policy file contains an
Agent’s Report which states that an illustration was
used and a sales illustration that was signed on or
before the date of policy issuance, which establish
subclass membership. Plaintiffs offer the Agent’s
Report and sales illustration for policy LSO204769 under
the rule of completeness. FRE 106, 403; see Dinglasan
Dec. Re Monahan Dec. {{12, Ex. J.

14. 1. Lacks foundation for relevance. Ms. Monahan

Exhibit N, which
Ms. Monahan
declares, in 22,
is “a true and
correct copy of
excerpts from the
file for policy
LS0202372,

provides no foundation for the relevance of Exhibit N or
the fact that the file for policy LSO202372 “contains
internal correspondence referencing an illustration.”

First, Ms. Monahan provides no foundation that it would
be necessary to consult the internal correspondence
attached as Exhibit N because the file for policy

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW
Case No. CV 10-9198 JVS (RNBx)

13

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111

Case 2:10-cv-09198-JVS-RNB Document 436 Filed 05/08/13 Page 15o0f15 Page ID

#:19910

Evidence

Grounds for Objection(s)

which contains
internal
correspondence
referencing an
illustration.”

LS0202372 contains an Agent’s Report which states
that an illustration was used, which establishes
subclass membership in accordance with the rules set
forth in the Court’s November 9, 2012 Order.

Second, even if one were to consult internal
correspondence referencing an illustration (such as that
attached as Exhibit N), Ms. Monahan provides no
foundation to establish that it would be difficult to
determine that the internal correspondence refers to an
illustration having been used in the sale. FRE 401, 402,
602.

2. Misleading; rule of completeness. Exhibit N, which
contains selected excerpts from the file for policy
LS0202372, may mislead the trier of fact as it falsely
suggests that the file for policy LS0202372 is
inconclusive with respect to evidence of sales illustration
receipt or that it would be difficult to determine whether
the holder of policy LS0202372 received a sales
illustration, when in fact the policy file contains an
Agent’s Report which states that an illustration was
used, which establishes subclass membership. Plaintiffs
offer the Agent’s Report for policy LS0202372 under the
rule of completeness. FRE 106, 403; see Dinglasan Dec.
Re Monahan Dec. 413, Ex. K.

DATED: May 8, 2013

KASOWITZ BENSON TORRES & FRIEDMAN
LLP

By: _s/Brian P. Brosnahan
Brian P. Brosnahan

PLAINTIFFS’ OBJECTIONS TO MONAHAN DECLARATION CONCERNING POLICY FILE REVIEW
Case No. CV 10-9198 JVS (RNBx)

14