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Tiger Capital, LLC v. Phl Variable Insurance Co.

United States District Court, Second Circuit

August 26, 2013

TIGER CAPITAL, LLC, Plaintiff,
v.
PHL VARIABLE INSURANCE COMPANY, Defendant.

MEMORANDUM AND ORDER

JAMES C. FRANCIS, IV, Magistrate Judge.

Tiger Capital, LLC ("Tiger") brings this action against the PHL Variable Insurance Company ("PHL") challenging PHL's 2011 cost of insurance rate adjustment. This case is related to Fleisher v. Phoenix Life Insurance Co., No. 11 Civ. 8405, and U.S. Bank National Association v. PHL Variable Co., No. 12 Civ. 6811. The defendant now moves for an order compelling the plaintiff to produce responsive documents and to produce Barry Zyskind for a deposition.

Background[1]

On August 29, 2012, PHL propounded its First Set of Requests for Production of Documents ("RFP"). (Defendant PHL Variable Insurance Company's First Set of Requests for Production ("RFP"), attached as Exh. A to Declaration of Ben V. Seessel dated Aug. 6, 2013 ("Seessel Decl.")). The plaintiff, in September 2012, collected approximately two million documents that were potentially responsive including 200, 000 documents from Steven Ungar, Tiger's in-house counsel. (Declaration of Phillip M. Manela dated Aug. 16, 2013 ("Manela Decl."), ¶¶ 2-3). The plaintiff, however, did not produce any documents until January 31, 2013, and made two additional productions on February 8 and March 19, 2013, producing in total 6, 295 documents with 111, 368 bates numbered pages. (Seessel Decl., ¶ 3; Letter of Phillip M. Manela dated Jan. 31, 2013, attached as Exh. C to Seessel Decl.; Letter of Phillip M. Manela dated Feb. 8, 2013, attached as Exh. D to Seessel Decl.; Letter of Phillip M. Manela dated March 19, 2013, attached as Exh. E to Seessel Decl.).

On June 27, 2013, PHL served a notice of deposition for Barry Zyskind, Chief Executive Officer of AmTrust Financial Services, Inc. ("AmTrust"), Tiger's parent company. (Notice of Deposition dated June 27, 2013, attached as Exh. K to Seessel Decl.). Tiger did not formally object to the deposition but would not commit to his appearance. (Seessel Decl., ¶ 18).

On July 5, 2013, Tiger informed PHL that it had "identified' a very large number of responsive non-privileged documents'" which contained some non-responsive information but would not produce them unless PHL's counsel agreed not to use the non-responsive information or share it with their client. (Seessel Decl., ¶ 4). The defendant brought a motion to compel the production of those documents (Docket no. 35), which it later withdrew, having resolved the issue with the plaintiff. (Memorandum Endorsement dated July 22, 2013, at 1).

On July 12, July 25, and August 2, 2013, the plaintiff produced additional documents, consisting of 18, 164 documents, or 141, 690 bates numbered pages. (Seessel Decl., ¶¶ 6-7; Letter of Phillip M. Manela Dated July 25, 2013, attached as Exh. G to Seessel Decl.; Letter of Phillip M. Manela Dated Aug. 2, 2013, attached as Exh. H to Seessel Decl.; Defendant's Memorandum of Law in Support of Its Motion to Compel Production of Documents and Appearance at Noticed Deposition ("Def. Memo.") at 3).

On July 5, 2013, the defendant asked the plaintiff to provide a firm date by which it would provide a privilege log and the plaintiff responded that it believed that "nothing ha[d] been redacted or withheld as privileged from the documents Tiger [had] produced thus far." (Seessel Decl., ¶ 15). Tiger later informed PHL that it had "identified a large number of documents with Steve Ungar's name, ' and was in the process of reviewing these for privilege....'" (Seessel Decl., ¶ 16).

Discussion

A. Document Production

PHL seeks to compel Tiger to produce all responsive documents. In response, Tiger contends that it has produced "[m]any, if not all" of the documents sought by the defendant and any delay in production is a result of the large volume of potentially responsive documents and its limited resources. (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Compel ("Pl. Memo.") at 2-3; Declaration of Phillips M. Manela dated Aug. 16, 2013 ("Manela Decl."), ¶¶ 1, 4, 7, 10). It has not objected to the production of documents identified in the defendant's motion. Accordingly, the plaintiff shall produce the following documents to the extent that they are non-privileged within a week of this order:

• Purchase and sale agreements regarding all PHL policies Tiger has acquired (RFP No. 4);
• Transaction memoranda regarding all completed or contemplated purchases of PHL policies (RFP No. 12);
• Documents reflecting due diligence performed by Tiger regarding the purchase of PHL ...

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