Summary:The plaintiff sought documents from Apollo in response to a subpoena issued on June 20, 2023. The Court granted the plaintiff's Motion to Compel and ordered Apollo to provide the plaintiff with full and complete responses to the Requests for Production. The Court also directed Apollo to produce a privilege log that is “sufficiently robust” and include several specific categories of information relating to the materials being withheld.
Court:United States District Court, D. Connecticut
Date decided:
Judge:Spector, Robert M.
THE ESTATE OF RUSSELL MECHLING, BY ITS EXECUTOR ELLEN ULMER, Plaintiff, v. U.S. BANK NATIONAL ASSOCIATION and FINANCIAL CREDIT INVESTMENT III SPV-A (CAYMAN), L.P., Defendants Case No. 3:23-cv-00025-VAB United States District Court, D. Connecticut Signed October 06, 2023 Counsel Gregory James Star, Matthew Bleich, Adam Kohn, Cozen O'Connor, Philadelphia, PA, Holly G. Rogers, Michael W. Stenger, Melick & Porter, LLP, Southbury, CT, for Plaintiff. Michael S. Cryan, ArentFox Schiff LLP, Boston, MA, David James Ward, ArentFox Schiff LLP, New York, NY, for Defendant U.S. Bank National Association. Andrew M. Zeitlin, Shipman & Goodwin, Stamford, CT, for Defendant Financial Credit Investment III SPV-A (Cayman), L.P. Spector, Robert M., United States Magistrate Judge Opinion *1 Signed by Judge Robert M. Spector on October 6, 2023. Entered: 10/06/2023 ORDER granting 113 Motion to Compel. On August 7, 2023, the plaintiff and non-party Apollo Global Management, Inc. (“Apollo”) jointly filed a Motion for Discovery Conference, and therein described a dispute concerning Apollo's failure to provide the plaintiff with documents in response to a set of eight Requests for Production (“RFPs”) included in a subpoena issued by the plaintiff to Apollo on June 20, 2023. (See Doc. No. 79). In an effort to resolve this dispute by, inter alia, narrowing the scope of the RFPs at issue, the plaintiff and Apollo have since met with the Court at length on two different occasions (see Doc. Nos. 86, 98), and have also privately met and conferred numerous times. Still, the plaintiff and Apollo have not been able to resolve this dispute, or reach any compromise (see Doc. No. 109). As such, and because the parties have been unable to reach any agreement regarding compliance with the subpoena's requests, on September 22, 2023, the plaintiff filed the instant Motion to Compel Apollo's full compliance with the aforementioned subpoena, and the RFPs set forth therein. (Doc. No. 113). Apollo thereafter filed its opposition to the plaintiff's Motion to Compel, and the plaintiff filed a reply brief. (Doc. No. 115, 116). Having considered the merits of the instant motion, and upon additional due consideration of the various filings previously submitted by the plaintiff and Apollo in connection with this dispute (see Doc. Nos. 79, 91, 94, 102, 107), the Court hereby GRANTS the plaintiff's Motion to Compel and ORDERS Apollo to comply with the subpoena dated June 20, 2023 and provide the plaintiff with full and complete responses to RFP Nos. 1 through 8. The plaintiff brings the instant lawsuit seeking to recover the proceeds of two separate, $5 million life insurance policies taken out on decedent Russel Mechling (the “Mechling Policies”). (See generally, Second Amended Complaint (“SAC”), Doc. No. 106). The plaintiff alleges that, as Russel Mechling's estate, it is equitably entitled to those proceeds, insofar as the Mechling Policies were initially procured absent any insurable interest, and therefore amount to unlawful stranger-originated life-insurance (“STOLI”) policies. (Id.). The plaintiff contends that the Mechling Policies were initially procured in 2007 by a “STOLI Promoter” called “Oceanus, LLC,” and later acquired by defendant Financial Credit Investment III SPV-A (Cayman), L.P. (“FCI Cayman”) in 2017, as part of a broader portfolio acquisition. (Id. at 6-7). According to the plaintiff, prior to the acquisition, Apollo had expressed concerns to FCI Cayman that the policies originated via Oceanus, LLC may not have been supported by insurable interest. (Id. at 8). On June 20, 2023, the plaintiff served Apollo with a subpoena, which included the eight RFPs in question. (See Doc. No. 79). Generally speaking, the RFPs seek materials in Apollo's possession, custody, or control pertaining to the Mechling Policies, and in particular, the various acquisitions of life insurance portfolios that may have included the Mechling Policies since 2007--some or all of which the plaintiff contends included due-diligence reviews related to the existence of insurable interest in those policies. While Apollo has apparently produced the relevant “policy files” for the Mechling Policies, it has otherwise not provided any responses to the RFPs at issue. The plaintiff argues that that the documents sought are highly relevant, and that Apollo has not otherwise made a sufficient showing that the document requests are overly burdensome. (See Doc. No. 113). Apollo also contends, in its opposition memorandum, that discovery in this case should be stayed, and that in any event, the RFPs at issue are overbroad and the Court should, at most, limit Apollo's responses to documents concerning the Mechling Policies. (See Doc. No. 115). *2 Apollo has not filed a separate motion to stay discovery or a motion for a protective order. Importantly, the parties seemingly agree that for the purposes of this motion, despite being a “non-party,” Apollo, as manager of defendant FCI Cayman, has access to the same set of available documents. Moreover, Apollo and FCI Cayman are presently represented by the same counsel (see Doc. Nos. 80, 110). Accordingly, the Court cannot presently determine whether Apollo is a true “non-party” under these circumstances, and finds that the instant dispute may be analyzed under Rule 26. Nevertheless, had this motion been analyzed under Rule 45, or otherwise in the context of a motion to quash, the Court's determination as to the relevance of the RFPs at issue would be the same. See Jacobs v. Town of Palm Beach, No. 19-MC-153 (SRU), 2020 WL 13547679, at *1 (D. Conn. Jan. 21, 2020) (“A subpoena issued to a non-party pursuant to Rule 45 is subject to Rule 26(b)(1)’s overriding relevance requirement.”). As a threshold matter, and as explicitly stated to counsel for Apollo on the record at the discovery conference held on August 24, 2023, there currently is no pending motion to stay discovery that has been referred to the undersigned for resolution. As a result, the undersigned does not intend, and has no authority, to stay discovery in this matter. Moreover, even to the extent that FCI Cayman's motion to dismiss can also be construed as a motion to stay discovery, that motion (see Doc. No. 114) is pending before the Court (Bolden, J.) and has not been referred to the undersigned. Finally, and most significantly, the Court (Bolden J.) has previously and explicitly indicated its intention to move forward with discovery in this matter notwithstanding any pending motion to dismiss. (See Doc. No. 31). Turning to the crux of the instant motion, despite the arguable overbreadth of the RFPs at issue (e.g., RFP No. 1 “all documents or communications... that mention the Policies or the Insured”), the Court cannot find that, on balance, the RFPs fail to seek relevant materials. Indeed, the materials sought would seem to be highly relevant, insofar as they are likely to be probative of the insurable interest/STOLI issue at the heart of this litigation. Doe v. Wesleyan Univ., No. 19-CV-1519 (JBA) (TOF), 2021 WL 4704852, at *3 (D. Conn. Oct. 8, 2021) (“Subject to the proportionality requirement and other limitations set forth in Rule 26, a party may discover relevant, non-privileged information in the other party's possession.”) (citing Fed. R. Civ. P. 26(b)(1)); see also Huseby, LLC v. Bailey, No. 20-CV-00167 (JBA), 2021 WL 3206776, at *6 (D. Conn. July 29, 2021) (“Information is relevant if it (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”) (citing Fed. R. Evid. 401) (internal quotations omitted); Martino v. Nationstar Mortg. LLC, No. 17-CV-1326 (KAD), 2019 WL 2238030, at *1 (D. Conn. May 23, 2019) (at the discovery stage, relevance is “an extremely broad concept”). More specifically, the plaintiff argues--and the Court agrees--that the documents sought may bear on the central issue of “whether the Mechling policies were STOLI and to whether Apollo/FCI knew or had reason to know that the policies were STOLI.” (See Doc. No. 113 at 10). Accordingly, and without any agreement by the parties to narrow the scope of the RFPs at issue, the Court is left with little choice but to grant the instant motion, and compel Apollo's compliance with the plaintiff's subpoena. As Apollo has not yet provided any responses to the RFPs at issue in the subpoena, the Court declines at this juncture to adopt Apollo's proposal that its disclosures be limited to “documents concerning the Mechling Policies,” and in doing so, preemptively narrow the scope of the document production. (See Doc. No. 115). Apollo is hereby directed to comply with the subpoena and provide its responses to the plaintiff's RFPs on or before November 6, 2023. *3 In its motion, the plaintiff also argues that any privilege log provided with Apollo's document production must be “sufficiently robust,” and include several specific categories of information relating to the materials being withheld. (See Doc. No. 113 at 13). The Court agrees with the plaintiff that any such privilege log should be produced by Apollo in short order, and if possible, contemporaneously with the underlying document production. However, the Court is disinclined to instruct Apollo on how to assemble and produce their privilege log, and as such, declines to adopt the plaintiff's proposal at this time. If, upon review, the plaintiff believes that any privilege log provided by Apollo in connection with its forthcoming document production is not “sufficiently robust,” the plaintiff shall meaningfully endeavor to resolve any such dispute without Court intervention. If those efforts are unsuccessful, the parties may jointly request a conference with the undersigned, and one will be scheduled promptly. The same meet and confer protocol shall also be adhered to in the event that the plaintiff is unsatisfied with Apollo's responses to the RFPs at issue. It is so ordered.