1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO APPONT SPECIAL MASTER, 10-09198 JVS(RNBx) ActiveUS 107284822v.1 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 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.: 10-09198 JVS(RNBx) NOTICE OF MOTION AND MOTION TO APPOINT SPECIAL MASTER Judge: Hon. James V. Selna Date: April 22, 2013 Time: 1:30 P.M. Courtroom: 10C Case 2:10-cv-09198-JVS-RNB Document 408 Filed 03/18/13 Page 1 of 6 Page ID #:18138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 - NOTICE OF MOTION AND MOTION TO APPOINT SPECIAL MASTER, 10-09198 JVS(RNBx) ActiveUS 107284822v.1 NOTICE OF MOTION AND MOTION TO STRIKE ERRATA SHEETS, DEPOSITION EXHIBIT, AND DEPOSITION TESTIMONY TO THE COURT, PLAINTIFFS, AND ALL COUNSEL OF RECORD: 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 Street, Santa Ana, California, 92701, Defendant Life Insurance Company of the 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 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. 2. Once a special master has been selected and retained, LSW shall provide 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 shall provide the special master with one copy of an application, an 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 sales illustration certification form. 3. The special master shall then promptly begin reviewing the policy files to determine whether the owner of each policy is a member of the Illustrations Case 2:10-cv-09198-JVS-RNB Document 408 Filed 03/18/13 Page 2 of 6 Page ID #:18139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 - NOTICE OF MOTION AND MOTION TO APPOINT SPECIAL MASTER, 10-09198 JVS(RNBx) ActiveUS 107284822v.1 subclass, defined in the Court’s order granting in part and denying in part Plaintiffs’ motion for class certification (Dkt. 353). 4. 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. 5. 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. 6. 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. 7. The Court shall review all objections de novo. 8. The special master shall not engage in any ex parte communications with the Court or with either party. Case 2:10-cv-09198-JVS-RNB Document 408 Filed 03/18/13 Page 3 of 6 Page ID #:18140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - NOTICE OF MOTION AND MOTION TO APPOINT SPECIAL MASTER, 10-09198 JVS(RNBx) ActiveUS 107284822v.1 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 the Proposed Order. 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 gathering documentation or preparing a report. 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 381). Pursuant to Federal Rule of Evidence 502(d), the production of documents to the special master shall not waive the attorney-client privilege, the attorney work product doctrine, or any other applicable privilege or protection in this or any other proceeding. This Motion is made following several discussions between counsel pursuant to Local Rule 7-3 and 37-1. 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 hearing. Case 2:10-cv-09198-JVS-RNB Document 408 Filed 03/18/13 Page 4 of 6 Page ID #:18141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 5 - NOTICE OF MOTION AND MOTION TO APPOINT SPECIAL MASTER, 10-09198 JVS(RNBx) ActiveUS 107284822v.1 Respectfully submitted, WILMER CUTLER PICKERING HALE AND DORR LLP By: /s/ Jonathan A. Shapiro Jonathan A. Shapiro (257199) Andrea J. Robinson (pro hac vice) Timothy J. Perla (pro hac vice) Attorneys for Defendant Life Insurance Company of the Southwest Case 2:10-cv-09198-JVS-RNB Document 408 Filed 03/18/13 Page 5 of 6 Page ID #:18142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 6 - NOTICE OF MOTION AND MOTION TO APPOINT SPECIAL MASTER, 10-09198 JVS(RNBx) ActiveUS 107284822v.1 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 thereon fully prepaid, in the United States mail addressed as set forth below. I personally caused to be hand delivered the document(s) listed above to the person(s) 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. 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 Case 2:10-cv-09198-JVS-RNB Document 408 Filed 03/18/13 Page 6 of 6 Page ID #:18143