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on DWN nN BW NY KF ODO UO WAI Duna FP WW NY KF OO

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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

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Defendant Life Insurance Company of the Southwest (“LS W’’) 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,

2 66

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)

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documents in the policyholder files (e.g., Agent’s Reports) might be sufficient to
determine illustration receipt. /d. 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 (1) 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. Jd. at 3-4. But evidence can be relevant and probative, even if
standing alone it doesn’t prove a disputed fact.' 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

' 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.).
-2-

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

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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.
Il. CONCLUSION

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

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

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

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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 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

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

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