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  • PEOPLE OF THE STATE OF CALIFORNIA VS. MORGAN STANLEY SECURITIES/INVESTMENT document preview
  • PEOPLE OF THE STATE OF CALIFORNIA VS. MORGAN STANLEY SECURITIES/INVESTMENT document preview
  • PEOPLE OF THE STATE OF CALIFORNIA VS. MORGAN STANLEY SECURITIES/INVESTMENT document preview
  • PEOPLE OF THE STATE OF CALIFORNIA VS. MORGAN STANLEY SECURITIES/INVESTMENT document preview
  • PEOPLE OF THE STATE OF CALIFORNIA VS. MORGAN STANLEY SECURITIES/INVESTMENT document preview
  • PEOPLE OF THE STATE OF CALIFORNIA VS. MORGAN STANLEY SECURITIES/INVESTMENT document preview
  • PEOPLE OF THE STATE OF CALIFORNIA VS. MORGAN STANLEY SECURITIES/INVESTMENT document preview
  • PEOPLE OF THE STATE OF CALIFORNIA VS. MORGAN STANLEY SECURITIES/INVESTMENT document preview
						
                                

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“4 James P. Rouhandeh (admitted pro hac vice) rouhandeh@davispolk.com Antonio J. Perez-Marques (admitted pro hac vice) antonio.perez@davispolk.com Jessica L. Turner (admitted pro hac vice) jessica.turner@davispolk.com Sheila R. Adams (admitted pro hac vice) sheila.adams@davispolk.com Matthew Cormack (admitted pro hac vice) matthew.cormack@davispolk.com DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, New York 10017 Telephone: (212) 450-4000 Facsimile: (212) 701-5800 Patrick D. Robbins (SBN 152288) probbins@shearman.com Mikael Abye (SBN 233458) mikael.abye@shearman.com SHEARMAN & STERLING LLP 535 Mission Street, 25th Floor San Francisco, California 94105 Telephone: (415) 616-1100 Facsimile: (415) 616-1199 Counsel for Defendants ELECTRONICALLY FILED Superior Court of California, County of San Francisco 10/29/2018 Clerk of the Court BY: VANESSA WU Deputy Clerk Neal A. Potischman (SBN 254862) neal.potischman@davispolk.com DAVIS POLK & WARDWELL LLP 1600 El Camino Real Menlo Park, California 94025 Telephone: (650) 752-2000 Facsimile: (650) 752-2111 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, - against - MORGAN STANLEY & CO. LLC, f/k/a MORGAN STANLEY & CO. INCORPORATED; MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC, f/k/a MORGAN STANLEY MORTGAGE CAPITAL INC.; MORGAN STANLEY ABS CAPITAL I INC.; MORGAN STANLEY CAPITAL ITINC.; SAXON FUNDING MANAGEMENT LLC; SAXON ASSET SECURITIES COMPANY; and DOES 1-100, Defendants. CASE NO. CGC-16-551238 DECLARATION OF JESSICA L. TURNER IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR ISSUANCE OF INTERNATIONAL LETTERS OF REQUEST REDACTED Date: November 19, 2018 Time: 2:00 p.m. Dept.: 304 Before the Honorable Curtis E.A. Karnow Date Action Filed: Trial Date: April 1, 2016 February 17, 2020 PUBLIC —- REDACTS MATERIALS FROM CONDITIONALLY SEALED RECORD DECLARATION OF JESSICA L. TURNER IN OPP. TO PLAINTIFF'S MOT. FOR ISSUANCE OF INT’L LETTERS OF REQUEST CASE No. CGC-16-551238“4 I, Jessica L. Turner, hereby declare: 1. Iam an attorney duly licensed to practice law in the state of New York, and I am an associate in the law firm Davis Polk & Wardwell LLP. My office is located at 450 Lexington Avenue, New York, New York 10017. I am counsel for defendants Morgan Stanley & Co. LLC; Morgan Stanley Mortgage Capital Holdings LLC; Morgan Stanley ABS Capital I Inc.; Morgan Stanley Capital I Inc.; Saxon Funding Management LLC; and Saxon Asset Securities Company (collectively, “defendants”) in this case, and I have been admitted to this Court pro hac vice. I submit this declaration in support of defendants’ Opposition to Plaintiff's Motion for Issuance of International Letters of Request. 2. The Memorandum of Points and Authorities in Support of Plaintiffs Motion for Issuance of International Letters of Request (the “MPA”) identifies ten topics on which plaintiff seeks deposition testimony. All ten topics were the subject of certain depositions in 4bu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., No. 08-CV-7508 (S.D.N.Y. Aug. 25, 2008) (“ADCB”), the transcripts of which have been produced to plaintiff in this litigation. Attached hereto as Exhibit 1 is a non-exhaustive list of depositions from the ADCB litigation that address the topics identified in the MPA. 3. Attached hereto as Exhibit 2 is a true and correct copy of a trade ticket dated September 12, 2006, and produced with the Bates number beginning CalPERS-0231248. 4. Attached hereto as Exhibit 3 is a true and correct excerpt of the responses to Interrogatory Nos. | and 2 in Lieu of PMK Topic 2 from Defendants’ Third Amended Responses to Interrogatories in Lieu of Person Most Knowledgeable Testimony dated May 14, 2018. 5. Attached hereto as Exhibit 4 is a true and correct copy of an email dated January 19, 2007, from Bradley Petersen and produced with the Bates number beginning MS_CAAG 6041048, and excerpts of the attachment, an Excel file produced with the Bates number beginning MS_CAAG _ 6041050. 6. Attached hereto as Exhibit 5 is a true and correct copy of The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, March 18, 1970, 23 U.S.T. 2555, T.LA.S. No. 7444. 1 DECLARATION OF JESSICA L. TURNER IN Opp. TO PLAINTIFF’S MOT. FOR ISSUANCE OF INT’L LETTERS OF REQUEST CASE NO. CGC-16-551238“4 7. Attached hereto as Exhibit 6 is a true and correct copy of an email dated January 30, 2004, from Emilie Bouthors and produced with the Bates number beginning MS_CAAG _ 4665365. The attachment to this email has been omitted. 8. Attached hereto as Exhibit 7 is a true and correct copy of an email dated May 10, 2005, from Dorothee Fuhrmann and produced with the Bates number beginning MS_CAAG 4631012, and the attachment, a document produced with the Bates number beginning MS_CAAG 4631014. A second attachment to this email has been omitted. 9. Attached hereto as Exhibit 8 is a true and correct copy of a document dated July 2005, titled “Cheyne Capital Management Limited: Presentation to Prospective Commercial Paper and Medium Term Note Investors” and produced with the Bates number beginning MS_CAAG 4290732. 10. Attached hereto as Exhibit 9 is a true and correct excerpt—with an annotation as per Cal. Rules of Court, rule 3.1116—of the Deposition Transcript of Martin Gregg Drennan from ADCB dated February 28, 2011, and produced with the Bates number beginning MS_CAAG 7966433. 11. Attached hereto as Exhibit 10 is a true and correct excerpt—with an annotation as per Cal. Rules of Court, rule 3.11 16—of the Deposition Transcript of Martin Gregg Drennan from ADCB dated March 1, 2011, and produced with the Bates number beginning MS_CAAG 7966224. 12. Attached hereto as Exhibit 11 is a true and correct excerpt of the response to Special Interrogatory No. 275 from Morgan Stanley Defendants’ Omnibus Objections and Responses to Plaintiff's Third Set of Special Interrogatories, Nos. 255-258, 269-270, 272-276, 284, 295-296, 299-302, 304-305, 329, 395-398 dated September 7, 2018. 13. Attached hereto as Exhibit 12 is a true and correct copy of an email dated May 2, 2005, from Helen Chang and produced with the Bates number beginning MS_CAAG 3792049. 14. Attached hereto as Exhibit 13 is a true and correct copy of an email dated May 4, 2005, from Helen Chang and produced with the Bates number beginning MS_CAAG 3794071. 2 DECLARATION OF JESSICA L. TURNER IN Opp. TO PLAINTIFF’S MOT. FOR ISSUANCE OF INT’L LETTERS OF REQUEST CASE NO. CGC-16-551238“4 15. Attached hereto as Exhibit 14 is a true and correct copy of an email dated January 18, 2005, from Martin Gregg Drennan and produced with the Bates number beginning MS_CAAG 4226896. The attachments to this email have been omitted. 16. Attached hereto as Exhibit 15 is a true and correct copy of an email dated April 16, 2005, from Dorothee Fuhrmann and produced with the Bates number beginning MS_CAAG 4575268. 17. Attached hereto as Exhibit 16 is a true and correct excerpt—with an annotation as per Cal. Rules of Court, rule 3.1116—of the Deposition Transcript of Rany Moubarak from ADCB dated November 6, 2009, and produced with the Bates number beginning MS_CAAG 7967756. 18. Attached hereto as Exhibit 17 is a true and correct excerpt—with annotations for the Court’s reference—of the transcript of the July 14, 2017 Case Management Conference. 19. Attached hereto as Exhibit 18 is a true and correct copy of the Case Management Order No. 4 dated July 14, 2017. 20. Attached hereto as Exhibit 19 is a true and correct copy of an email from Marcie Farano dated August 24, 2017. 21. Attached hereto as Exhibit 20 is a true and correct excerpt—with an annotation for the Court’s reference—of the transcript of the November 29, 2017 Case Management Conference. 22. Attached hereto as Exhibit 21 is a true and correct copy of the affidavit of Simon Jonathan Bailey Clarke dated October 29, 2018. 23. Attached hereto as Exhibit 22 is a true and correct copy of the Ninth Amended Complaint as it was publicly filed in ADCB on January 9, 2012. The redactions in the document were contained in the public filing. 3 DECLARATION OF JESSICA L. TURNER IN Opp. TO PLAINTIFF’S MOT. FOR ISSUANCE OF INT’L LETTERS OF REQUEST CASE NO. CGC-16-551238Nv I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this Of Gay of October 2018 in New York, New York. haat essica L. 4 DECLARATION OF JESSICA L. TURNER IN OPP, TO PLAINTIFF’S MOT, FOR ISSUANCE OF INT’L LETTERS OF REQUEST CASE NO. CGC-16-551238EXHIBIT 1 Conditionally Under SealEXHIBIT 2 Conditionally Under SealEXHIBIT 3 Conditionally Under SealEXHIBIT 4 Conditionally Under SealEXHIBIT 5Convention adopted at the Eleventh Session of The Hague..., T.LA.S. No. 7444 (1972) T.LA.S. No. 7444 (U.S. Treaty), 23 U.S.T. 2555 (U.S. Treaty), 1972 WL 122493 (U.S. Treaty) UNITED STATES 6F AMERICA Multilateral Taking of Evidence Abroad Convention adopted at the Eleventh Session of The Hague Conference on Private International Law October 26, 1968; Opened for signature at The Hague March 18, 1970; Signed on behalf of the United States of America July 27, 1970; Ratification advised by the Senate of the United States of America June 13, 1972; Ratified by the President of the United States of America July 15, 1972; Ratification of the United States of America deposited with the Ministry of Foreign Affairs of the Netherlands August 8, 1972; Proclaimed by the President of the United States of America September 15, 1972; Entered into force with respect to the United States of America October 7, 1972. October 7, 1972. BY THE PRESIDENT OF THE UNITED STATES OF AMERICA A PROCLAMATION CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS CHAPTER I-LETTERS OF REQUEST ARTICLE | ARTICLE 2 ARTICLE 3 ARTICLE 4 ARTICLE 5 ARTICLE 6 ARTICLE 7 ARTICLE 8 ARTICLE 9 ARTICLE 10 ARTICLE I1Convention adopted at the Eleventh Session of The Hague..., T.LA.S. No. 7444 (1972) ARTICLE 12 ARTICLE 13 ARTICLE 14 CHAPTER H-TAKING 6F EVIDENCE BY DIPLOMATIC OFFICERS, CONSULAR AGENTS AND COMMISSIONERS ARTICLE 15 ARTICLE 16 ARTICLE 17 ARTICLE 18 ARTICLE 19 ARTICLE 20 ARTICLE 21 ARTICLE 22 CHAPTER III - GENERAL CLAUSES ARTICLE 23 ARTICLE 24 ARTICLE 25 ARTICLE 26 ARTICLE 27 ARTICLE 28 ARTICLE 29 ARTICLE 30 ARTICLE 31 ARTICLE 32 ARTICLE 33Convention adopted at the Eleventh Session of The Hague..., T.LA.S. No. 7444 (1972) ARTICLE 34 ARTICLE 35 ARTICLE 36 ARTICLE 37 ARTICLE 38 ARTICLE 39 ARTICLE 40 ARTICLE 41 ARTICLE 42 BY THE PRESIDENT OF THE UNITED STATES 6F AMERICA A PROCLAMATION CONSIDERING THAT: *1 The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, adopted at the Eleventh Session of The Hague Conference on Private International Law on October 26, 1968, was opened for signature at The Hague on March 18, 1970, and was signed for the United States of America on July 27, 1970, the text of which in the French and English languages is annexed: The Senate of the United States of America by its resolution of June 13, 1972, two-thirds of the Senators present concurring, gave its advice and consent to the ratification of that Convention: The President ratified the Convention on July 15, 1972, and the instrument of ratification was deposited with the Ministry of Foreign Affairs of the Netherlands on August 8, 1972; Article 37 of the Convention provides that it shall enter into force on the sixtieth day after the deposit of the third instrument of ratification: and The Convention accordingly will enter into force for the United States of America on October 7, 1972, instruments of ratification having been deposited by Denmark and Norway on June 20, 1972 and August 3, 1972, respectivelys NOW, THEREFORE, I, Richard Nixon, President of the United States of America, proclaim and make public the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, to the end that it shall be observed and fulfilled with good faith on and after October 7, 1972 by the United States of America and by the citizens of the United States of America and all other persons subject to the jurisdiction thereof. WESConvention adopted at the Eleventh Session of The Hague..., T.LA.S. No. 7444 (1972) IN TESTIMONY WHEREO®F, I have signed this proclamation and caused the Seal of the United States of America to be affixed. DONE at the city of Washington this fifteenth day of September in the year of our Lord one thousand nine hundred seventy-two and of the Independence of the United States of America the one hundred ninety-seventh. RICHARD NIXON [SEAL] By the President: WILLIAM P ROGERS Secretary of State CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS The States signatory to the present Convention, Desiring to facilitate the transmission and execution of Letters of Request and to further the accommodation of the different methods which they use for this purpose, Desiring to improve mutual judicial co-operation in civil or commercial matters, Have resolved to conclude a Convention to this effect and have agreed upon the following provisions - CHAPTER I-LETTERS OF REQUEST ARTICLE 1 In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act. A Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated. The expression ‘other judicial act’ does not cover the service of judicial documents or the issuance of any process by which judgments or orders are executed or enforced, or orders for provisional or protective measures. ARTICLE 2 A Contracting State shall designate a Central Authority which will undertake to receive Letters of Request coming from a judicial authority of another Contracting State and to transmit them to the authority competent to execute them. Each State shall organize the Central Authority in accordance with its own law. Letters shall be sent to the Central Authority of the State of execution without being transmitted through any other authority of that State. ARTICLE 3 A Letter of Request shall specify - WESConvention adopted at the Eleventh Session of The Hague..., T.1.A.S. No. 7444 (1972) (a) the authority requesting its execution and the authority requested to execute it, if known to the requesting authority: (b) the names and addresses of the parties to the proceedings and their representatives, if any; (c) the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto; (d) the evidence to be obtained or other judicial act to be performed. Where appropriate, the Letter shall specify, inter alia - (e) the names and addresses of the persons to be examined; (f) the questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined; (g) the documents or other property, real or personal, to be inspected; (h) any requirement that the evidence is to be given on oath or affirmation, and any special form to be used; (i) any special method or procedure to be followed under Article 9. A Letter may also mention any information necessary for the application of Article 11 No legalization or other like formality may be required. ARTICLE 4 A Letter of Request shall be in the language of the authority requested to execute it or be accompanied by a translation into that language. Nevertheless, a Contracting State shall accept a Letter in either English or French, or a translation into one of these languages, unless it has made the reservation authorized by Article 33. A Contracting State which has more than one official language and cannot, for reasons of internal law, accept Letters in one of these languages for the whole o! territory, shall, by declaration, specify the language in which the Letter or translation thereof shall be expressed for execution in the specified parts of its territory. In case of failure to comply with this declaration, without justifiable excuse, the costs of translation into the required language shall be borne by the State of origin. A Contracting State may, by declaration, specify the language or languages other than those referred to in the preceding paragraphs, in which a Letter may be sent to its Central Authority. Any translation accompanying a Letter shall be certified as correct, either by a diplomatic officer or consular agent or by a sworn translator or by any other person so authorized in either State. ARTICLE 5 If the Central Authority considers that the request does not comply with the provisions of the present Convention, it shall promptly inform the authority of the State of origin which transmitted the Letter of Request, specifying the objections to the Letter. WESTLConvention adopted at the Eleventh Session of The Hague..., T.1.A.S. No. 7444 (1972) ARTICLE 6 If the authority to whom a Letter of Request has been transmitted is not competent to execute it, the Letter shall be sent forthwith to the authority in the same State which is competent to execute it in accordance with the provisions of its own law. ARTICLE 7 The requesting authority shall, if it so desires, be informed of the time when, and the place where, the proceedings will take place, in order that the parties concerned, and their representatives, if any, may be present. This information shall be sent directly to the parties or their representatives when the authority of the State of origin so requests. ARTICLE 8 A Contracting State may declare that members of the judicial personnel of the requesting authority of another Contracting State may be present at the execution of a Letter of Request. Prior authorization by the competent authority designated by the declaring State may be required. ARTICLE 9 The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed. However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties. A Letter of Request shall be executed expeditiously. ARTICLE 10 In executing a Letter of Request the requested authority shall apply the appropriate measures of compulsion in the instances and to the same extent as are provided by its internal law for the execution of orders issued by the authorities of its own country or of requests made by parties in internal proceedings. ARTICLE II In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence - (a) under the law of the State of executions or (b) under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the instance of the requested authority, has been otherwise confirmed to that authity by the requesting authority. A Contracting State may declare that, in addition, it will respect privileges and duties existing under the law of States d in that declaration. other than the State of origin and the State of execution, to the extent specif WESTLConvention adopted at the Eleventh Session of The Hague..., T.1.A.S. No. 7444 (1972) ARTICLE 12 The execution of a Letter of Request may be refused only to the extent that - (a) in the State of execution the execution of the Letter does not fall within the functions of the judiciary: or (b) the State addressed considers that its sovereignty or security would be prejudiced thereby. Execution may not be refused solely on the ground that under its internal law the State of execution claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not admit a right of action on it. ARTICLE 13 The documents establishing the execution of the Letter of Request shall be sent by the requested authority to the requesting authority by the same channel which was used by the latter. In every instance where the Letter is not executed in whole or in part, the requesting authority shall be informed immediately through the same channel and advised of the reasons. ARTICLE 14 The execution of the Letter of Request shall not give rise to any reimbursement of taxes or costs of any nature. Nevertheless, the State of execution has the right to require the State of origin to reimburse the fees paid to experts and interpreters and the costs occasioned by the use of a special procedure requested by the State of origin under Article 9, paragraph 2. The requested authority whose law obliges the parties themselves to secure evidence, and which is not able itself to execute the Letter, may, after having obtained the consent of the requesting authority, appoint a suitable person to do so. When seeking this consent the requested authority shall indicate the approximate costs which would result from this procedure. If the requesting authority gives its consent it shall reimburse any costs incurred: without such consent the requesting authority shall not be liable for the costs. CHAPTER HI-TAKING OF EVIDENCE BY DIPLOMATIC OFFICERS, CONSULAR AGENTS AND COMMISSIONERS ARTICLE 15 In a civil or commercial matter, a diplomatic officer or consular agent of a Contracting State may, in the territory of another Contracting State and within the area where he exercises his functions, take the evidence without compulsion of nationals of a State which he represents in aid of proceedings commenced in the courts of a State which he represents. ‘A Contracting State may declare that evidence may be taken by a diplomatic officer or consular agent only if permission to that effect is given upon application made by him or on his behalf to the appropriate authority designated by the declaring State. ARTICLE 16 A diplomatic officer or consular agent of a Contracting State may, in the territory of another Contracting State and within the area where he exercises his functions, also take the evidence, without compulsion, of nationals of the State WESTLConvention adopted at the Eleventh Session of The Hague..., T.1.A.S. No. 7444 (1972) in which he exercises his functions or of a third State, in aid of proceedings commenced in the courts of a State which he represents, if- (a) a competent authority designated by the State in which he exercis generally or in the particular case, and s his functions has given its permission either (b) he complies with the conditions which the competent authority has specified in the permission. A Contracting State may declare that evidence may be taken under this Article without its prior permission. ARTICLE 17 In a civil or commercial matter, a person duly appointed as a commissioner for the purpose may, without compulsion, take evidence in the territory of a Contracting State in aid of proceedings commenced in the courts of another Contracting State if- (a) a competent authority designated by the State where the evidence is to be taken has given its permission either generally or in the particular case; and (b) he complies with the conditions which the competent authority has specified in the permission. A Contracting State may declare that evidence may be taken under this Article without its prior permission. ARTICLE 18 A Contracting State may declare that a diplomatic officer, consular agent or commissioner authorized to take evidence under Articles 15, 16 or 17, may apply to the competent authority designated by the declaring State for appropriate assistance to obtain the evidence by compulsion. The declaration may contain such conditions as the declaring State may see fit to impose. If the authority grants the application it shall apply any measures of compulsion which are appropriate and are precribed by its law for use in internal proceedings. ARTICLE 19 The competent authority, in giving the permission referred to in Articles 15, 16 or 17, or in granting the application referred to in Article 18, may lay down such conditions as it deems fit, inter alia, as to the time and place of the taking of the evidence. Similarly it may require that it be given reasonable advance notice of the time, date and place of the taking of the evidence; in such a case a representative of the authority shall be entitled to be present at the taking of the evidence. ARTICLE 20 In the taking of evidence under any Article of this Chapter persons concerned may be legally represented. ARTICLE 21 Where a diplomatic officer, consular agent or commissioner is authorized under Articles 15, 16 or 17 to take evidence - (a) he may take all kinds of evidence which are not incompatible with the law of the State where the evidence is taken or contrary to any permission granted pursuant to the above Articles, and shall have power within such limits to administer an oath or take an affirmation; WESTLConvention adopted at the Eleventh Session of The Hague..., T.1.A.S. No. 7444 (1972) (b) a request to a person to appear or to give evidence shall, unless the recipient is a national of the State where the action is pending, be drawn up in the language of the place where the evidence is taken or be accompanied by a translation into such languager (c) the request shall inform the person that he may be legally represented and, in any State that has not filed a declaration under Article 18, shall also inform him that he is not compelled to appear or to give evidence; (d) the evidence may be taken in the manner provided by the law applicable to the court in which the action is pending provided that such manner is not forbidden by the law of the State where the evidence is taken (e) a person requested to give evidence may invoke the privileges and duties to refuse to give the evidence contained in Article 11. ARTICLE 22 The fact that an attempt to take evidence under the procedure laid down in this Chapter has failed, owing to the refusal of a person to give evidence, shall not prevent an application being subsequently made to take the evidence in accordance with Chapter I. CHAPTER Il - GENERAL CLAUSES ARTICLE 23 A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries. ARTICLE 24 A Contracting State may designate other authorities in addition to the Central Authority and shall determine the extent of their competence. However, Letters of Request may in all cases be sent to the Central Authority. Federal States shall be free to designate more than one Central Authority. ARTICLE 25 A Contracting State which has more than one legal system may designate the authorities of one of such s shall have exclusive competence to execute Letters of Request pursuant to this Convention. stems, which ARTICLE 26 A Contracting State, if required to do so because of constitutional limitations, may request the reimbursement by the State of origin of fees and costs, in connection with the execution of Letters of Request, for the service of process necessary to compel the appearance of a person to give evidence, the costs of attendance of such persons, and the cost of any transcript of the evidence. Where a State has made a request pursuant to the above paragraph, any other Contracting State may request from that State the reimbursement of similar fees and costs. WESTLConvention adopted at the Eleventh Session of The Hague..., T.1.A.S. No. 7444 (1972) ARTICLE 27 The provisions of the present Convention shall not prevent a Contracting State from - (a) declaring that Letters of Request may be transmitted to its judicial authorities through channels other than those provided for in Article 2: (b) permitting, by internal law or practice, any act provided for in this Convention to be performed upon less restrictive conditions; (©) permitting, by internal law or practice, methods of taking evidence other than those provided for in this Convention ARTICLE 28 The present Convention shall not prevent an agreement between any two or more Contracting States to derogate from - (a) the provisions of Article 2 with respect to methods of transmitting Letters of Request; (b) the provisions of Article 4 with respect to the languages which may be used: (c) the provisions of Article 8 with respect to the presence of judicial personnel at the execution of Letters; (d) the provisions of Article 11 with respect to the privileges and duties of witnesses to refuse to give evidencey (e) the provisions of Article 13 with respect to the methods of returning executed Letters to the requesting authority: (f) the provisions of Article 14 with respect to fees and costs; (g) the provisions of Chapter II. ARTICLE 29 Between Parties to the present Convention who are also Parties to one or both of the Conventions on Civil Procedure signed at the Hague on the 17th of July 1905! and the Ist of March 1954, this Convention shall replace Articles 8-16 of the earlier Conventions. ARTICLE 30 The present Convention shall not affect the application of Article 23 of the Convention of 1905, or of Article 24 of the Convention of 1954. ARTICLE 31 Supplementary Agreements between Parties to the Conventions of 1905 and 1954 shall be considered as equally applicable to the present Convention unless the Parties have otherwise agreed. ARTICLE 32 Without prejudice to the provisions of Articles 29 and 31, the present Convention shall not derogate from conventions containing provisions on the matters covered by this Convention to which the Contracting States are, or shall become Parties. WESTLConvention adopted at the Eleventh Session of The Hague..., T.LA.S. No. 7444 (1972) ARTICLE 33 A State may, at the time of signature, ratification or accession exclude, in whole or in part, the application of the provisions of paragraph 2 of Article 4 and of Chapter II. No other reservation shall be permitted. Each Contracting State may at any time withdraw a reservation it has made; the reservation shall cease to have effect on the sixtieth day after notification of the withdrawal. When a State has made a reservation, any other State affected thereby may apply the same rule against the reserving State. ARTICLE 34 A State may at any time withdraw or modify a declaration. ARTICLE 35 A Contracting State shall, at the time of the deposit of its instrument of ratification or accession, or at a later date, inform the Ministry of Foreign Affairs of the Netherlands of the designation of authorities, pursuant to Articles 2, 8, 24 and 25. A Contracting State shall likewise inform the Ministry, where appropriate, of the following - (a) the designation of the authorities to whom notice must be given, whose permission may be required, and whose assistance may be invoked in the taking of evidence by diplomatic officers and consular agents, pursuant to Articles 15, 16 and 18 respectivelys (b) the designation of the authorities whose permission may be required in the taking of evidence by commissioners pursuant to Article 17 and of those who may grant the assistance provided for in Article 18; (c) declarations pursuant to Articles 4, 8, 11, 15, 16, 17, 18, 23 and 27; (d) any withdrawal or modification of the above designations and declarations; (e) the withdrawal of any reservation. ARTICLE 36 Any difficulties which may arise between Contracting States in connection with the operation of this Convention shall be settled through diplomatic channels. ARTICLE 37 The present Convention shall be open for signature by the States represented at the Eleventh Session of the Hague Conference on Private International Law. It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands. WESTLConvention adopted at the Eleventh Session of The Hague..., T.LA.S. No. 7444 (1972) ARTICLE 38 The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument of ratification referred to in the second paragraph of Article 37. The Convention shall enter into force for each signatory State which ratifies subsequently on the sixtieth day after the deposit of its instrument of ratification. ARTICLE 39 Any State not represented at the Eleventh Session of the Hague Conference on Private International Law which is a Member of this Conference or of the United Nations or of a specialized agency of that Organization, or a Party to the Statute of the International Court of Justice * may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 38. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The Convention shall enter into force for a State acceding to it on the sixtieth day after the deposit of its instrument of accession. The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the a ‘ion shall be deposited at the Ministry of Foreign Affairs of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States. ion. Such dec! The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the sixtieth day after the deposit of the declaration of acceptance. ARTICLE 40 Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect on the date of entry into force of the Convention for the State concerned. At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands. 4 The Convention shall enter into force for the territories mentioned in such an extension on the sixtieth day after the notification indicated in the preceding paragraph. ARTICLE 41 The present Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 38, even for States which have ratified it or acceded to it subsequently. If there has been no denunciation, it shall be renewed tacitly every five years. Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six months before the end of the five year period. It may be limited to certain of the territories to which the Convention applies. WESTLConvention adopted at the Eleventh Session of The Hague..., T.1.A.S. No. 7444 (1972) The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in force for the other Contracting States. ARTICLE 42 The Ministry of Foreign Affairs of the Netherlands shall give notice to the States referred to in Article 37, and to the States which have acceded in accordance with Article 39, of the following - (a) the signatures and ratifications referred to in Article 37: (b) the date on which the present Convention enters into force in accordance with the first paragraph of Article 38; (c) the accessions referred to in Article 39 and the dates on which they take effect; (d) the extensions referred to in Article 40 and the dates on which they take effect; (e) the designations, reservations and declarations referred to in Articles 33 and 35; (f) the denunciations referred to in the third paragraph of Article 41. IN WITNESS WHERE6F the undersigned, being duly authorised thereto, have signed the present Convention. DONE at The Hague, on the 18th day of March 1970, in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of which a certified copy shall be sent, through the diplomatic channel, to each of the States represented at the Eleventh Session of the Hague Conference on Private International Law. FOR THE FEDERAL REPUBLIC OF GERMANY, (s.) HANS ARNOLD WESConvention adopted at the Eleventh Session of The Hague..., T.1.A.S. No. 7444 (1972) FOR AUSTRIA, FOR BELGIUM, FOR CANADA, FOR DENMARK, FOR SPAIN, FOR THE UNITED STATES OF AMERICA, FOR FINLAND, FOR FRANCE, FOR GREECE, FOR IRELAND, FOR ISRAEL, FOR ITALY, FOR JAPAN, FOR LUXEMBOURG, FOR NORWAY, (s.) G. ROGSTAD FOR THE NETHERLAND: FOR PORTUGAL, (s.) CONSTANTINO RIBEIRO VAZ FOR THE UNITED ARAB REPUBLIC, FOR THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, (s.) EDWARD TOMKINS FOR SWEDEN, FOR SWITZERLAND, FOR CZECHOSLOVAKIA, FOR TURKEY, FOR YUGOSLAVIA, 17 APR. 1970 (F. G. Boulonois)Convention adopted at the Eleventh Session of The Hague..., T.LA.S. No. 7444 (1972) Footnotes 1 99 British Foreign and State Papers 990. 2 286 UNTS 265 3 TS 993: 59 Stat. 1055. S Extended to Guam, Puerto Rico, and the Virgin Islands pursuant to notification sent by the American Embassy at The Hague on Feb. 6, 1913. T.LA.S. No. 7444 End of Document © 2018 Thomson Reuters, No claim to original U.S, Government Works. WESTLEXHIBIT 6 Conditionally Under SealEXHIBIT 7 Conditionally Under SealEXHIBIT 8 Conditionally Under SealEXHIBIT 9 Conditionally Under SealEXHIBIT 10 Conditionally Under SealEXHIBIT 11 Conditionally Under SealEXHIBIT 12 Conditionally Under SealEXHIBIT 13 Conditionally Under SealEXHIBIT 14 Conditionally Under SealEXHIBIT 15 Conditionally Under SealEXHIBIT 16 Conditionally Under SealEXHIBIT 17SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO BEFORE THE HONORABLE CURTIS E.A. KARNOW, JUDGE PRESIDING DEPARTMENT NUMBER 304 ---000--- PEOPLE OF THE STATE OF CALIFORNIA, Plaintiffs, vs. Case No. CGC-16-551238 MORGAN STANLEY & CO. LLC, f£/k/a MORGAN STANLEY & CO. INCORPORATED; MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC f/k/a MORGAN STANLEY MORTGAGE CAPITAL INC.; MORGAN STANLEY ABS CAPITAL I INC.; MORGAN STANLEY CAPITAL I INC.; SAXON FUNDING MANAGEMENT LLC; SAXON ASSET SECURITIES COMPANY; and DOES 1-100, Defendants. Reporter's Transcript of Proceedings Friday, July 14, 2017 REPORTED BY: MARY ANN SCANLAN CSR 8875 RMR-CCRR-CRR-CLRPeople v. Morgan Stanley 7/14/2017 15 1 they look at the documents, the same documents, and some 2 want a person's deposition and others do not, so I 3 really don't have an estimate. 4 THE COURT: Fair enough. 5 Thank you very much. 6 What is your estimate -- you don't know for 7 sure now, of course, but a range of number of 8 depositions you think you'd need to get in after you've 9 gotten the documents after Phase 2? 10 MS. FARANO: I wouldn't want to be wedded to 11 it at this point, Your Honor, not having reviewed 12 documents. 13 THE COURT: Of course. 14 MS. FARANO: But in terms of an estimate, 15 probably in the neighborhood of 30 in the U.S. -- and I 16 want to emphasize this part -- on the Cheyne SIV, a 17 non-prioritized security, there will be some 18 international depositions. 19 Part of the reason we want those documents 20 sooner rather than later is there's a whole application 21 process under the Hague Convention that we're going to 22 have to go through. In our experience, it can take four 23 to five to six months before we can actually take those 24 depositions. 25 So we want to have the documents. We want to SCANLAN STONE REPORTERS 415.834.1114People v. Morgan Stanley 7/14/2017 16 be sure our sense of who those deponents are -- and right now we're not completely in the dark, we'd estimate it in the neighborhood of eight to ten international, but we want to be sure we have the right people and right documents to use at the depositions. THE COURT: With respect to those international depositions, you don't necessarily have to make all of the applications at once. You might know that there are four people for sure you're going to need to take, for example, right? You can proceed to at least get to paperwork going on those. 24 25 MS. FARANO: That is true, Your Honor, and the other piece of it is that for Morgan Stanley employees, if there was an agreement between the parties that the depositions could happen here, we might be able to expedite the process that way. THE COURT: Right. How many of these folks, the international folks, do you think are not related to a party? MS. FARANO: In terms of current employees, there might be two that are. THE COURT: Only two that are? MS. FARANO: It's a small number. THE COURT: Is there some way that you can get a pretty good feeling on who you want to depose SCANLAN STONE REPORTERS 415.834.1114People v. Morgan Stanley 7/14/2017 19 helpful for me to set some of these interim dates as well, but we understand that we've got this sort of flexibility built in the sense that if you get something untoward and your responsibilities have been doubled in terms of trying to get something produced, we can start playing with some of those dates. I don't want to give too much encouragement to that, because then people will look at these dates and say, well, if we don't make it, we can always go back to the judge and he'll give us another four or five months or something like that. I think it's helpful to have these dates as targets, understanding that unforeseeable circumstances might force at least some of the interim dates that can be pushed a little. 24 25 MR. ROUHANDEH: Another point is that if the AG's office believes they need 13 months to do the depositions and part of that reason is they may need to go through the Hague Convention, they do have 10 million pages in their investigation related to the Cheyne SIV, and so -- although it might be premature to start that process in motion, they certainly could get it set -- get it started while the documents in Phase 2 were being produced. THE COURT: I think that's right. I think they can get started. I don't know how far they can SCANLAN STONE REPORTERS 415.834.1114People v. Morgan Stanley 7/14/2017 20 1 get. They may not be able to decide on exactly every 2 single human being that they want to depose, but my 3 guess is that, talking with you, looking at what they 4 already have, they probably have a pretty good idea or 5 they could get a pretty good idea in the next couple of 6 months as to who the international deponents are and, by 7 and large, get all that paperwork going. 8 MR. ROUHANDEH: And I don't mean to suggest, 9 Your Honor, that I think it's unreasonable to have 13 10 months of discovery in light of the numbers which we 11 just heard of how many people they might want to depose. 12 That is a lot of people, but if they need that much time 13 to take those depositions, we're saying we need a fair 14 amount of time to get the documents produced and for us 15 to proceed. 16 THE COURT: I appreciate that. 17 MR. ROUHANDEH: Thank you, Your Honor. 18 THE COURT: I know documents -- documents take 19 a lot of time and it's expensive. 20 Let's turn to the 437c(t) issue. 21 It does require a stipulation and, actually, 22 it requires a signature from the Court as well, to get 23 that motion process going. So if the parties are in 24 agreement -- and I think it's -- I don't think there's 25 anything to lose. SCANLAN STONE REPORTERS 415.834.1114EXHIBIT 18wo we YN DA HY BF WwW Ww NWN NY N KY ND YD Be Be we ewe ew wee ee QI A A BF BH = SOD MP ADH A FF YW NH BF ST AERIS f / 60857624 \ } Jul 14 2017 03:35PM Ore: <4 Served eit Fi San Francisco County Superior Court JUL 14 2017 CLE F, COURT By: Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO PEOPLE OF THE STATE OF Case No. CGC — 16-551238 CALIFORNIA, Plaintiff, - CASE MANAGEMENT ORDER NO.4 MORGAN STANLEY, et al. Defendants. I held a case management conference (CMC) this date. The next CMC is set for October 11, 2017 at 9:00 a.m. The parties’ joint CMC statement should reflect their views on (i) setting a trial date, and estimates from both sides on the number of days or hours to be allocated; (ii) the timing of mediation. Based on the parties’ views in their CMC statements and presented orally, discovery cut off dates are set below. I have assumed roughly 30 depositions after the close of document discovery, but also that the parties have the staffing capability to take about 4 of them per month, suggesting not more than eight months is needed; and I have added an additional month. Both sides estimate four months for expert discovery. Prioritized discovery of both parties completed': December 15, 2017. ' This is defined in C.C.P. § 2024.010. Case No. CGC-13-532467 -1-Completion of all document production (including that called for by current and any future demands’): August 1, 2018. Completion of percipient discovery: May 1, 2019. Completion of expert discovery: September 1, 2019. These dates may be modified by the parties on written agreement, noted to the court ina subsequent CMC statement, except the parties may not modify without court approval the completion dates for percipient or expert discovery. While the dates above and the parties’ discussion of them generally assume discovery will occur in phases, e.g., general document production after prioritized production, experts only after percipient discovery is complete, and so on, this may not be necessary and the parties should consider overlapping phases to in effect increase the time allocated. The parties should commence their preparations for international depositions as soon feasible, i.e. when the identity of the deponent is known. Too, it may not be necessary to wait until all discovery is complete to file summary judgment/adjudication or other dispositive motions, and issues typically handled shortly before trial, such as the admissibility of evidence (such as expert opinion) and jury instruction conferences (if there is a serious disagreement on the law) may be handled substantially before trial. I encourage the parties confer and arrange for a C.C.P. § 437c(t) proceeding by preparing the required declarations and “joint stipulation” called for by that statute. They should also confer to determine if they might agree on the use of a statistical review to generate results either on liability or damages without having to litigate each loan (or other use of statistics). If there is no agreement, one party may nevertheless contend a statistical approach is valid. To be ? Further document demands in particular should be served as soon as feasible, to avoid disagreements extending into the time set aside for depositions and other work. Case No. CGC-13-532467 ~2-Co em YN DAW PB YW NE NR NY NR YN KR KN DN Be Be we we eB eB Re ee eB YA A FO NH & FS OC mM ADA Bw KH SK SD useful in the discovery context, this issue should be the subject of discussion among counsel promptly. These issues (§ 437c(t), use of statistics) may be addressed in the next CMC, but the parties need not wait until then to present stipulations and proposals. 4q SS Curtis E.A. Karnow Judge Of The Superior Court Dated: July 14, 2017 Case No. CGC-13-532467 -3-CERTIFICATE OF ELECTRONIC SERVICE (CCP 1010.6(6).& CRC 2.260(g)) J, DANIAL LEMIRE, a Deputy Clerk of the Superior Court of the County of San Francisco, certify that I am not a party to the within action. On NUL 14 2017 ; lelectronically served THE ATTACHED DOCUMENT via File & ServeXpress on the recipients designated on the Transaction Receipt located.on the File & ServeXpress website. Dated: QUE 14 2017 * DANIAL LEMIRE; Deputy ClerkEXHIBIT 19Page 1 of 2 From: Marcie Farano [mailto:Marcie.Farano@doj.ca.gov] Sent: Thursday, August 24, 2017 2:32 PM To: Reiser, Craig M. Cc: Adams, Sheila R.; Perez-Marques, Antonio J.; Rouhandeh, James P.; Emily Kalanithi; Joanna Forster; Rick Acker Subject: MS International Depositions Dear Craig: At the July 14, 2017 CMC, we broached the issue of overseas depositions of Morgan Stanley employees (current and former). While these anticipated depositions would primarily relate to the Cheyne SIV and not the prioritized securities, we did tell Judge Karnow that we would initiate a meet and confer with defendants and provide an initial list of the international depositions we are currently considering. Given the time and expense of taking foreign depositions, the stated goal of this meet and confer process is to determine whether Davis Polk intends to represent any of the deponents and, if so, whether defendants and the witnesses will stipulate to having their depositions take place in the United States. Below is a list of 7 international, Morgan Stanley or MS affiliate depositions we are currently considering. As you can see from the list, only one of these witnesses was previously deposed in the Abu Dhabi litigation. Michael Nolan Alex Khein Justin Worrall Helen Chang Dorothee Fuhrmann Emilie Bouthors Gregg Drennan eeoeoeecee For each of the above, please advise as to whether Davis Polk will represent these individuals at deposition, whether the deposition(s) can go forward in the United States and, where applicable, accept service and waive the requirements of the Hague Convention. We are happy to further discuss these issues at your convenience. Thanks, Marcie Marcie Keenan Farano Deputy Attorney General California Department of Justice Office of the Attorney General 455 Golden Gate Avenu