Preview
“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