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NOTICE OF MOTION AND UNOPPOSED MOTION FOR ISSUANCE OF LETTERS OF
REQUEST PURSUANT TO HAGUE CONVENTION; MEM. OF P’S AND A’S IN
SUPPORT THEREOF
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C. ANDREW KITCHEN (SBN 292609)
LINDA B. OLIVER (SBN 166720)
MAYNARD, COOPER & GALE, LLP
600 Montgomery Street, Suite 2600
San Francisco, California 94111
Telephone: (415) 646-4700
Facsimile: (205) 254-1999
E-mail: dkitchen@maynardcooper.com
loliver@maynardcooper.com
CINDY M. RUCKER (SBN 272465)
MAYNARD, COOPER & GALE, LLP
1901 Avenue of the Stars, Floor 2
Los Angeles, CA 90067
Telephone: (323) 987-3356
Facsimile: (205) 254-1999
E-mail: cmekari@maynardcooper.com
Attorneys for Defendant
PROTECTIVE LIFE INSURANCE COMPANY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
EASTERN DIVISION
RACHAEL MORAGUES CANELA,
Plaintiff,
vs.
PROTECTIVE LIFE INSURANCE
COMPANY, and DOES 1 through 10,
inclusive,
Defendants.
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CASE NO. 5:17-cv-01765-JGB-SP
DISCOVERY MOTION
NOTICE OF MOTION AND
UNOPPOSED MOTION FOR
ISSUANCE OF LETTERS OF
REQUEST FOR JUDICIAL
ASSISTANCE PURSUANT TO
HAGUE CONVENTION FROM
THIRD PARTY MEDICAL
PROVIDERS; MEMORANDUM OF
POINTS AND AUTHORITIES
Date: August 28, 2018
Time: 10:00 a.m.
Case 5:17-cv-01765-JGB-SP Document 24 Filed 07/31/18 Page 1 of 10 Page ID #:126
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NOTICE OF MOTION AND UNOPPOSED MOTION FOR ISSUANCE OF LETTERS OF
REQUEST PURSUANT TO THE HAGUE CONVENTION; MEM. OF P’S AND A’S IN
SUPPORT THEREOF
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PLEASE TAKE NOTICE that on August 28, 2018, at 10:00 a.m., or as soon
thereafter as this matter may be heard in Courtroom 3 of the above-captioned Court,
located at 3470 Twelfth Street, 3rd Floor, Riverside, California, defendant Protective
Life Insurance Company (“Protective”) will and hereby does move this Court,
pursuant to Federal Rule of Civil Procedure 28(b) and Article 1 of the Hague
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters,
March 18, 1970, 23 U.S.T. 2555, for issuance of Letters of Request, in the form
submitted as Exhibit B and C to the Declaration of Linda B. Oliver (“Oliver Decl.”),
to the Ministry of Justice of Spain, requesting that authority's assistance in obtaining
the production of documents from Hospital Universitari Germans Trias I Pujol (Can
Ruti) and Hospital Universitario Virgen Macarena (“the Spanish Hospitals”), where
Plaintiff’s decedent, Marcos Moragues Canela, was treated before his death, relating
to the above-entitled action. The records of the Spanish Hospitals are likely to include
Mr. Moragues Canela’s medical history, including his history of the use of tobacco.
The Motion is made following a pre-filing conference pursuant to Local Rule
37-1, which took place on July 24, 2018. Plaintiff's counsel, Nichole Podgurski,
indicated that Plaintiff would not oppose this motion for leave to take discovery of
the Spanish Hospitals through the Hague Convention. Oliver Decl., ¶ 2 and Exh. A.
The grounds for this motion include Protective’s Letters of Request which seek
documents that are likely to be relevant to decedent Marco Moragues Canela’s
medical and smoking history. The letter of request procedure is the exclusive method
available to Protective to obtain evidence from the Spanish Hospitals.
This motion is based upon this Notice and Motion, the attached Memorandum
of Points and Authorities, the concurrently filed Declaration of Linda B. Oliver, the
pleadings and records on file in this action, and upon any additional evidence and
argument that may be presented before or at the hearing of this motion.
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NOTICE OF MOTION AND UNOPPOSED MOTION FOR ISSUANCE OF LETTERS OF
REQUEST PURSUANT TO THE HAGUE CONVENTION; MEM. OF P’S AND A’S IN
SUPPORT THEREOF
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Respectfully submitted,
DATED: July 31, 2018 MAYNARD, COOPER & GALE, LLP
By: /s/ Linda B. Oliver
C. Andrew Kitchen
Linda B. Oliver
Attorneys for Defendant PROTECTIVE LIFE
INSURANCE COMPANY
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NOTICE OF MOTION AND UNOPPOSED MOTION FOR ISSUANCE OF LETTERS OF
REQUEST PURSUANT TO THE HAGUE CONVENTION; MEM. OF P’S AND A’S IN
SUPPORT THEREOF
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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Plaintiff Rachael Moragues Canela has sued Protective for breach of contract
and breach of implied covenant of good faith and fair dealing based upon Protective’s
determination that no benefits were payable under the life insurance policy on the life
of her late husband, Marco Moragues Canela, because it determined during the
contestable investigation after his death that he had misrepresented when he stopped
smoking cigarettes on his application for insurance. In her initial disclosures and at
her deposition, Plaintiff disclosed the names of two hospitals located in Spain, where
her husband was originally from and where he was visiting when he first became ill
before his death, Hospital Universitari Germans Trias I Pujol (Can Ruti) and Hospital
Universitario Virgen Macarena (“the Spanish Hospitals”).
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Oliver Decl., Exhs. D and
E. It is likely that during treatment at these hospitals, Mr. Moragues Canela included
information regarding his history of use of tobacco when the medical providers took
his medical history. These medical records are not available in the United States.
Accordingly, Protective moves this Court to issue the Letters of Request attached to
the Oliver Declaration as Exhibits B and C seeking the production of documents from
the Spanish Hospitals. Plaintiff’s attorney has indicated that Plaintiff will not oppose
this motion. Oliver Decl., Exh. A.
II. ARGUMENT
A. The Court Has Authority to Issue the Letters of Request
The Hague Convention on the Taking of Evidence Abroad in Civil or
Commercial Matters (“Hague Evidence Convention”) enables the judicial authority
of a signatory state to request the competent authority of another signatory state to
1 In her disclosures, Plaintiff provided slightly different spellings for the medical
providers, but Protective’s attorneys have determined that these are the names of the
hospitals located in Spain in the cities provided.
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NOTICE OF MOTION AND UNOPPOSED MOTION FOR ISSUANCE OF LETTERS OF
REQUEST PURSUANT TO THE HAGUE CONVENTION; MEM. OF P’S AND A’S IN
SUPPORT THEREOF
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assist in the procurement of evidence by way of a letter of request. Hague Convention
of Taking Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, 23
U.S.T. 2555, Art. 1. “[T]he text of the Convention draws no distinction between
evidence obtained from third parties and that obtained from the litigants
themselves[.]” Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for the S.
Dist. of Iowa, 482 U.S. 522, 541 (1987). Since both the United States and Spain are
signatories to the Hague Evidence Convention,
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litigants in the United States may
utilize the Hague procedures to obtain evidence from third parties in Spain, provided
such requests for evidence are issued “in accordance of the provisions of law of [the
Requesting] State [.]” Hague Evidence Convention, Art. 1.
In the United States, “[a] letter of request ... may be issued[] on appropriate
terms after an application and notice of it[.]” Fed. R. Civ. P. 28(b)(2)(A). In
determining whether to grant a letter of request, courts consider international comity
factors. Aerospatiale, 482 U.S. at 543-44. The Court assesses: “(1) the importance to
the litigation of the documents or other information requested; (2) the degree of
specificity of the request; (3) whether the information originated in the United States;
(4) the availability of alternative means of securing the information; and (5) the
extent to which noncompliance with the request would undermine important interests
of the United States, or compliance with the request would undermine important
interest of the state where the information is located.” Aerospatiale, 482 U.S. at 544.
In the Ninth Circuit, two additional factors often are considered: “the extent and
nature of the hardship that inconsistent enforcement would impose upon the person,
... [and] the extent to which enforcement by action of either state can reasonably be
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https://www.hcch.net/en/instruments/conventions/status-table/?cid=82 (last visited
July 31, 2018)(status table showing that U.S. signed the Hague Convention in 1970
and Spain in 1976). See also 28 U.S.C. § 1781.
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expected to achieve compliance with the rule prescribed by that state.” Richmark
Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1475 (9th Cir. 1992).
As the following sections explain, the relevant factors weigh in favor of
granting Protective's motion and issuing the Letters of Request.
B. The Aerospatiale and Richmark Factors Weigh in Favor of Issuing a
Letter of Request
1. The Documents Sought by Protective Are Highly Relevant
The first factor articulated in Aerospatiale, 482 U.S. at 543 (the relevancy of
the sought-after discovery) strongly supports issuing Protective's Letters of Request.
The documents sought from the Spanish Hospitals include contemporaneous
evidence of Mr. Moragues Canela’s medical history, which will include a discussion
of the patient’s smoking history. Accordingly, these records are highly relevant to
Protective’s determination that it was entitled to rescind Mr. Moragues Canela’s
policy because of his misrepresentations regarding his smoking history.
2. Protective's Letters of Request Are Sufficiently Specific
Protective's requests are specific and clear and have been narrowly crafted to
seek relevant materials that are likely to be useful. Specifically, Protective seeks Mr.
Moragues Canela’s medical records while treated at the Spanish Hospitals. Plaintiff
herself disclosed the hospitals as sources of discoverable information in her initial
disclosures. Oliver Decl., Exhibit D. Such requests are appropriately limited in scope
because they are “enumerated in the letter of request and have a direct and clear
nexus with the subject matter of the litigation.” Aerospatiale, 482 U.S. at 565.
3. The Interests of the United States and Spain Are Served by
Issuing Protective’s Letters of Request
The United States has an important interest in vindicating the rights of litigants
and enforcing judgments in its courts. Coloplast A/S v. Generic Med. Devices, Inc.,
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NOTICE OF MOTION AND UNOPPOSED MOTION FOR ISSUANCE OF LETTERS OF
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No. C-10227, 2011 U.S. Dist. LEXIS 145738, at *12 (W.D. Wash. Dec. 19, 2011).
Spain also has a legitimate interest in permitting parties to resort to proper use of
Hague Convention procedures. Protective's Letters of Request are limited in scope
and will not impose unreasonable burdens on the Spanish Hospitals. Accordingly, the
interests of the United States and Spain weigh in favor using the Hague procedures
and issuing Protective's Letters of Request.
4. Protective's Letters of Request Presents No Hardship in
Compliance
Because Protective's Letters of Request are narrowly tailored, the Requests will
not impose undue hardship upon the Spanish Hospitals. To the extent this Court or
the Spanish judicial authority believes that the payment of reasonable fees or
expenses are appropriate to compensate the Spanish Hospitals, Protective will pay
those expenses. Thus, this factor, too, weighs in favor of issuing Protective's Letters
of Request.
The proposed Letters of Request set forth the information required by the
Hague Convention. If the Court grants this motion and signs the proposed order,
Protective will have the Letters of Request translated into Spanish and give the Court
the translations so that the Court can transmit both the original Letters of Request,
signed and sealed by the Court, and the translations to Spain’s Central Authority.
III. CONCLUSION
For the reasons discussed herein, Protective respectfully asks the Court to grant
this unopposed motion, enter the proposed order, and issue and transmit the proposed
Letters of Request, along with Spanish translations to be supplied by Protective, to
Spain’s designated Central Authority for receiving such requests.
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Respectfully submitted,
DATED: July 31, 2018 MAYNARD, COOPER & GALE, LLP
By: /s/ Linda B. Oliver
C. Andrew Kitchen
Linda B. Oliver
Attorneys for Defendant PROTECTIVE LIFE
INSURANCE COMPANY
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NOTICE OF MOTION AND UNOPPOSED MOTION FOR ISSUANCE OF LETTERS OF
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SUPPORT THEREOF
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PROOF OF SERVICE
STATE OF CALIFORNIA )
COUNTY OF SAN FRANCISCO )
I am employed in the County of San Francisco, State of California. I am over
the age of 18 and not a party to the within action. My business address is 600
Montgomery Street, Suite 2600, San Francisco, California 94111. On the date
indicated below, I served the foregoing document described as:
NOTICE OF MOTION AND UNOPPOSED MOTION FOR ISSUANCE OF
LETTERS OF REQUEST FOR JUDICIAL ASSISTANCE PURSUANT TO
HAGUE CONVENTION FROM THIRD PARTY MEDICAL PROVIDERS;
MEMORANDUM OF POINTS
[X] BY CM/ECF ELECTRONIC SERVICE: The interested party(ies) set forth
below are registered CM/ECF users with the Court, and have consented to service
through the Court’s automatic transmission of a notice of filing.
Michael B. Horrow, Esq.
Nichole D. Podgurski, Esq.
Stephen Diamond, Esq.
DONAHUE & HORROW, LLP
1960 E. Grand Ave., Suite 1215
El Segundo, California 90245
Telephone: (310) 322-0300
Email: mhorrow@donahuehorrow.com
npodgurski@donahuehorrow.com
sdiamond@donahuehorrow.com
Attorneys for Plaintiff
I declare that I am employed in the office of a member who has been admitted
to the bar of this Court, at whose direction the service was made. I declare under
penalty of perjury under the laws of the United States of America that the foregoing
is true and correct.
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NOTICE OF MOTION AND UNOPPOSED MOTION FOR ISSUANCE OF LETTERS OF
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Executed July 31 2018, at San Francisco, California.
________________________________
Rachel Ouk
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