Black v. USAA Financial Advisors, Inc. et al

RESPONSE in Opposition re MOTION to Compel

S.D. Miss.November 28, 2017

4843-0096-1623 2923471-000030 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION DR. ELLIOTT BLACK, III PLAINTIFF V. CIVIL ACTION NO. 1:17-cv-00150-LG-RHW USAA FINANCIAL ADVISORS, INC., and USAA INVESTMENT MANAGEMENT CO. DEFENDANTS ______________________________________________________________________________ RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL ______________________________________________________________________________ COME NOW USAA Financial Advisors, Inc., and USAA Investment Management Co. (collectively, the "USAA Defendants") and file this Response in Opposition to Plaintiff's Motion to Compel.1 Plaintiff's Motion to Compel should be denied because (1) the USAA Defendants have provided (or have agreed to provide) all available information in response to most of the requests placed at issue, and (2) the USAA Defendants' objections to the remaining requests should be sustained, because those requests have nothing to do with the convenience of venue in Mississippi, and seek to place unreasonable burdens on the USAA Defendants. 1. Plaintiff's Motion seeks more fulsome responses to five of his discovery requests, but the USAA Defendants have already provided, or agreed to provide, all the information they have in response to most of the requests. 2. In particular, the USAA Defendants have provided the following responses: 1 In his Motion, the Plaintiff makes several statements that are not relevant to the issue at hand. For instance, Plaintiff submits arguments regarding the legal standard for accounts titled as joint tenancies with the right of survivorship. The USAA Defendants are not submitting argument on these points, but their silence is not intended to be, and should not be interpreted as, a waiver against any such substantive arguments. Case 1:17-cv-00150-LG-RHW Document 24 Filed 11/28/17 Page 1 of 5 2 4843-0096-1623 2923471-000030 a. With respect to Plaintiff's Interrogatory No. 2 (Paragraph 18 of Plaintiff's Motion), on October 25, 2017, the USAA Defendants agreed to search for and produce all communications with Plaintiff or his father since 2000 that they have a record of. Exhibit 1, E-Mails to Plaintiff's Counsel. The USAA Defendants have produced some information as promised, and are in the process of completing the necessary searches to conclude their production. b. With respect to Interrogatory No. 3 (Paragraph 20 of Plaintiff's Motion), and Document Request No. 1 (Paragraph 24 of Plaintiff's Motion) the response to Interrogatory No. 2 (including the promised supplementation) is in large part responsive. In addition, the USAA Defendants have produced the yearly account statements sent to Mr. Black and Dr. Black which they still have. Other than monthly statements, the USAA Defendants have no other responsive materials.2 c. With respect to Plaintiff's Interrogatory No. 4 (Paragraph 22 of Plaintiff's Motion), on October 25, 2017, the USAA Defendants "supplement[ed] their interrogatory response regarding lawsuits to provide that they have not been sued in Mississippi in the last seven years. That is [as] far back as their lawsuit data runs." Put simply, Plaintiff has been on notice for more than two weeks that the USAA Defendants have provided all information they have that is responsive to this Interrogatory.3 This, despite the irrelevance of the Interrogatory, as will be explained herein. 3. The USAA Defendants have maintained a work-product, attorney-client privilege objection to the foregoing requests regarding communications in case there are summaries of any such conversation prepared by undersigned counsel, or by employees of the USAA Defendants. If there are any such summaries, a privilege log will be provided as required by this Court's rules. 4. As the foregoing demonstrates, the USAA Defendants have provided substantive, meaningful responses to four of the five discovery requests placed at issue in Plaintiff's Motion. 2 It is possible that there may be advertisements which are responsive, but for the reasons explained herein, advertisements should not be subject to discovery. 3 Undersigned counsel has made further inquiry with the USAA Defendants and confirmed that the response should not have been limited to the USAA Defendants being sued; they were also not a plaintiff in any Mississippi lawsuit over the same time period. The error in phrasing is attributable to undersigned counsel, not to the USAA Defendants. Regardless, the Plaintiff did not raise this omission as a basis for proceeding with his Motion, or it could have been clarified earlier. Case 1:17-cv-00150-LG-RHW Document 24 Filed 11/28/17 Page 2 of 5 3 4843-0096-1623 2923471-000030 With respect to those four requests, the only responsive information that the USAA Defendants have failed to provide are the solicitations sent to the Plaintiff or his father. Plaintiff has not cited any authority to show this information is relevant, and, the lone Mississippi case on point suggests it is not relevant. Paul v. International Precious Metals Corp., 613 F. Supp. 174 (S.D. Miss. 1985) (transferring venue to Florida despite Plaintiff's objection that advertisement circulated in Mississippi established jurisdiction and venue). 5. Document Request No. 3 is the only discovery request that the USAA Defendants have declined to provide any response to. It seeks records of their employees' travel to Mississippi for the last ten years and eleventh months. However, prior activity in the forum is simply not relevant to the issue of venue in this case. Blake v. Archer Drilling LLC, 2014 WL 3696280 (S.D. Tex. 2014) ("However, the fact that Defendant may have previously litigated in the [subject forum] does not meant that litigating the present case in another division would not be more convenient and in the interest of justice."); Body Sci. LLC v. Boston Sci. Corp., 846 F. Supp. 2d 980, 997 (N.D. Ill. 2012) (venue is litigated based not on prior cases, but on a "case-by- case basis."). Merely because employees of the USAA Defendants may have travelled to Mississippi in the past does not render such travel convenient. Further, it would be nearly impossible for the USAA Defendants to even search for responsive material; both are large companies, with many employees. Short of interviewing nearly every employee in the company (and past employees), there is simply no way for the USAA Defendants to determine who has travelled to the State in the last ten years and eleven months. And that would only be the first layer of searches; after determining the appropriate names, the USAA Defendants would then have to undergo an extensive search to determine what, if any records, remained from those Case 1:17-cv-00150-LG-RHW Document 24 Filed 11/28/17 Page 3 of 5 4 4843-0096-1623 2923471-000030 visits. The USAA Defendants should not be required to undergo such burdensome, costly discovery for a topic that is irrelevant to venue. 6. Finally, while Plaintiff does not seek any additional information regarding the USAA Defendants' response to Document Request No. 5, he gratuitously criticizes the USAA Defendants for what he perceives as an inconsistency between the USAA Defendants' discovery response and briefing. This has nothing to do with the Motion to Compel, and appears to be an attempt to prejudice the Court against the USAA Defendants. The USAA Defendants will respond to this point at the appropriate time—namely, when the Plaintiff files his Response to the Motion to Transfer Venue and the USAA Defendants file their Reply. 7. The USAA Defendants have agreed to supplement nearly all of the request that the Plaintiff put into issue with his Motion. They request that the Court deny any further supplementation beyond what they have already agreed to provide. This the 28th day of November, 2017. USAA FINANCIAL ADVISORS, INC. and USAA INVESTMENT MANAGEMENT CO. By Their Attorneys, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC BY: s/D. Sterling Kidd Sterling Kidd (MS Bar #103670) Case 1:17-cv-00150-LG-RHW Document 24 Filed 11/28/17 Page 4 of 5 5 4843-0096-1623 2923471-000030 OF COUNSEL: D. Sterling Kidd (MS Bar #103670) skidd@bakerdonelson.com BAKER, DONELSON, BEARMAN CALDWELL & BERKOWITZ, PC One Eastover Center 100 Vision Drive, Suite 400 Jackson, Mississippi 39211 Telephone: (601) 351-8932 Facsimile: (601) 974-8932 CERTIFICATE OF SERVICE I hereby certify that I filed the foregoing Motion to Compel with the Court's electronic filing system which forwarded a copy to all counsel of record. This the 28th day of November, 2017. s/D. Sterling Kidd D. Sterling Kidd Case 1:17-cv-00150-LG-RHW Document 24 Filed 11/28/17 Page 5 of 5