Exhibit A 

Case: 1:20-cv-03882 Document #: 91-1 Filed: 04/01/21 Page 1 of 6 PageID #:2557
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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

SUSAN WOERTH MILLER, et al., 

Plaintiffs, 

v. 

ASTELLAS US LLC, et al., 

Defendants. 

Case No. 1:20-cv-03882 

Hon. Ronald A. Guzman 

Hon. Heather K. McShain 

DEFENDANT AON HEWITT INVESTMENT CONSULTING, INC.’S SUR-REPLY IN 

OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 

Plaintiffs’ Reply underscores just how impetuous and premature Plaintiffs’ Motion to 

Compel the addition of eight new custodians was at the time it was filed, and how ill-considered 

it remains today. In that Reply,1

 plaintiffs expressly abandon their bid as to two of the 

individuals whom plaintiffs originally sought to add (Reply 11),2 and devote a total of only four 

sentences of their Reply to four others. Reply 9–10. Plaintiffs instead focus the bulk of their 

Reply on advocating for the inclusion of two individuals not sought in their Motion—or for that 

matter ever raised at any point in the meet and confer process. And, while plaintiffs also go to 

some pains to argue for the inclusion of Craig Pearlman—one of the individuals actually 

implicated by plaintiffs’ Motion—they rely upon arguments wholly different than those raised in 

 

1

 Unless otherwise noted herein, all emphasis is supplied. This sur-reply uses the same defined terms as AHIC’s 

Opposition to Plaintiffs’ Motion to Compel, ECF No. 73 (“Opp.”), 1 n.1 and refers to (i) plaintiffs’ Reply in Support 

of their Motion to Compel, ECF No. 80 as the “Reply”; (ii) the Declaration of Troy A. Doles, dated March 26, 2021, 

filed in support of the Reply, ECF No. 80–1, as the “Doles Reply Decl.”; (iii) the Declaration of Troy Doles, dated 

March 9, 2021, filed in support of the Motion to Compel, ECF No. 69–1, as the “Doles Decl. ISO Mot.”; (iv) the 

Declaration of William D. Pollak, dated March 19, in Support of AHIC’s Opposition to the Motion to Compel, ECF 

No. 73–2, as “Pollak Decl. ISO Opp.”; and (v) the March 31, 2021 Declaration of William Pollak in Support of the 

Motion for Leave to File a Sur-reply as “Mar. 31, 2021 Pollak Sur-Reply Decl.” 

2

 AHIC has separately agreed to add a third individual, Richard Swanson, as a custodian, after originally signaling 

their willingness to add him before plaintiffs filed their Motion to Compel. Doles Decl. ISO Mot., ECF No. 69–1, 

Ex. 14 at 4; Pollak Decl. ISO Opp., ECF No. 73–2, Exs. 5–6. 

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their initial brief or discussed with AHIC in the meet and confer process. Plaintiffs’ newly 

minted arguments are as inadequate as those in their initial brief, and their abrupt shift in 

positions and requested relief demonstrates their undue haste in seeking judicial intervention.3 

I. Plaintiffs’ Two New Custodians are Inappropriate Because They Are Highly 

Unlikely to Possess Non-Cumulative Relevant Documents. 

Plaintiffs seek to add two members of the uppermost echelon of AHIC’s senior 

management―Clint Cary, the former Chief Investment Officer, and David Testore, the Chief 

Operating Officer―as custodians. To try to justify this extraordinary request, plaintiffs distort 

the record by claiming that these individuals are “the AHIC leads for the Astellas relationship” 

and “interact[ed] directly with Astellas.” Reply 1–2. But plaintiffs do not (and cannot) point to 

a single interaction, communication, or meeting between Astellas and either Testore or Cary. 

Instead, the most plaintiffs can muster are a handful of emails (out of 8,000) that only 

confirm that Cary and Testore had little to no involvement with the Plan. Not only are there 

multiple existing AHIC custodians on these emails, but plaintiffs point to nothing suggesting that 

either Cary or Testore had any involvement with the Astellas Plan beyond these limited 

interactions and these emails do not suggest the existence of other responsive documents solely 

in the files of Testore or Cary that will not already be produced from AHIC’s existing 

custodians. See Doles Reply Decl. Ex. 3; id. Ex. 7; id. Ex. 8 (copying both Swanson and Doyle). 

For example, plaintiffs cite an email (id. Ex. 5) from October 2020―over four years after the 

decisions challenged in this litigation―in which Doyle inquired as to whether he would need to 

 

3

 While AHIC continues to dispute many of the inaccurate statements in plaintiffs’ Reply, AHIC has limited this surreply to the new arguments and documents that plaintiffs improperly raised for the first time in their Reply. AHIC’s 

limited sur-reply does not, for example, diminish AHIC’s disagreement with plaintiffs’ claim that certain materials 

such as the DPOC Charter and the organizational chart featured on page 5 of the Reply were produced after 

plaintiffs filed their Motion to Compel. Among other things, AHIC disputes plaintiffs’ misleading recounting of the 

parties’ meet and confer discussions and inaccurate characterizations of the burden of adding seven additional 

custodians. 

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obtain a letter of direction signed by Testore. But Testore wasn’t copied on this email and didn’t 

even sign the letter of direction referenced in the email. (See Mar. 31, 2021 Pollak Sur-Reply 

Decl., Ex. 9, AON-AST-00053613.). Nor does the fact that Testore was one of a dozen 

individuals that received an update from Doyle when AHIC was selected as the delegated 

investment manager suggest that he had any substantive involvement with the Plan. Doles Reply 

Decl. Ex. 7; see also id. Ex. 6. Plaintiffs’ reliance on Ex. 8 to justify making Cary a custodian is 

equally misplaced; this email only evidences Cary’s lack of knowledge or involvement with the 

Astellas Plan because Richard Swanson had to provide Cary with the most basic details about the 

Plan. Id. Ex. 8 (“Astellas is a current AHIC client of John Doyle’s. We’ve been talking to them 

. . . for about a year.”). Plaintiffs cannot justify the addition of the most senior members of 

AHIC’s management as custodians based merely on the assertion that AHIC’s existing 

custodians copied Testore and Cary on a grand total of three emails related to the Plan and, as 

members of senior management, they were authorized to sign certain documents (id. Ex. 9).4

 

II. None of Plaintiffs’ New Arguments Justifies the Significant Burden of Adding the 

Five Additional Custodians that Plaintiffs Sought in Their Motion to Compel. 

Unable to address the arguments in AHIC’s Opposition, plaintiffs again distort the record 

by fundamentally exaggerating Craig Pearlman’s role and incorrectly claiming that he was 

“AHIC’s point salesperson” and took “the lead role” in communicating with Astellas. Reply 7–

8. Plaintiffs do not point to a single email between Pearlman and Astellas in their Reply and the 

minutes of the Astellas Committee never mention Pearlman as having attended a meeting with 

the Committee. Instead, the new emails that plaintiffs cite involve Doyle (a custodian) 

 

4 See Enslin v. Coca-Cola Co., 2016 WL 7042206, at *3 (E.D. Pa. June 8, 2016) (denying motion to compel because 

the mere fact that certain individuals “occupied senior roles in the Company[]” was insufficient to satisfy moving 

party’s burden of “point[ing] to any evidence to suggest that a search of their ESI would produce responsive 

information that has not already been captured”); In re Morgan Stanley Mortg. Pass-Through Certificates Litig., 

2013 WL 4838796, at *2 (S.D.N.Y. Sept. 11, 2013) (same). 

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contacting Pearlman as well as Swanson (another custodian) with discrete questions (Doles 

Reply Decl. Ex. 14), requesting other RFPs as precedents (id. Ex. 13), or providing updates on 

conversations with Astellas that Pearlman did not participate in (id. Exs. 11, 12). Even if 

plaintiffs are correct that Doyle “sought direction from Pearlman,” that only underscores that any 

responsive communications involving Pearlman would already be produced from Doyle’s 

custodial files. Indeed, plaintiffs have not pointed to any emails from Doyle to Pearlman that do 

not also copy Swanson (who is also already a custodian). (Id. Exs. 11–14). Plaintiffs claim that 

Pearlman has “unique information” because he voluntarily resigned from AHIC, but they do not 

(because they cannot) point to any connection between Pearlman’s resignation and either the 

Astellas Plan or any of the issues in this litigation. Reply 8–9.5

Finally, plaintiffs offer virtually no basis for adding the remaining custodians. Indeed, 

the emails plaintiffs cite confirm that Eugene Lee was a junior analyst who did not communicate 

with Astellas or generate work product about the Astellas Plan without copying Doyle.6 John 

Compare Decl. of John Doyle ¶ 3, ECF 73–1, with Doles Reply Decl. Exs 11–12. And 

plaintiffs’ continued insistence on adding the three individuals cited in AHIC’s Rule 26(a) 

disclosures as custodians is completely undermined by their refusal to accept AHIC’s offer to 

add a custodian on that basis without prejudice to plaintiffs’ motion to compel. Mar. 31, 2021 

Pollak Sur-Reply Decl. Ex. 10; Pollak Decl. ISO Opp. Exs. 5–6. Plaintiffs simply have not come 

 

5 See Assured Guar. Mun. Corp. v. UBS Real Est. Sec. Inc., 2013 WL 1195545, at *3 (S.D.N.Y. Mar. 25, 2013) 

(rejecting “speculation that the positions of [the proposed custodians] as senior executives” was likely to increase 

the relevance of their files); see also United States ex rel. McBride v. Halliburton Co., 272 F.R.D. 235, 240–41 

(D.D.C. 2011) (noting that the court is obligated to consider, among other things, whether “the discovery sought is 

unreasonably cumulative or duplicative” and denying motion to add custodians where plaintiff, among other things, 

did not demonstrate that e-mails that had yet to be produced were crucial to her proof). 

6

 Plaintiffs have already rescinded their request to compel AHIC to add the other two junior analysts who held the 

same role as Eugene Lee, Polina Tsybrovska and Steve Tagarov, because “those individuals would provide truly 

duplicative materials to Doyle and may be excluded as custodians.” Reply 11. The same is true for Eugene Lee. 

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close to meeting their burden of demonstrating that “the additional requested custodians would 

provide unique relevant information”7 to justify the considerable burden and expense of 

searching approximately three million additional emails.8 See Opp. n.17; Pollak Decl. ISO Opp. 

¶ 7. 

Dated: April 1, 2021 Respectfully Submitted, 

/s/ Brian D. Boyle

O’MELVENY & MYERS LLP 

Brian D. Boyle (pro hac vice) 

Shannon M. Barrett (pro hac vice) 

1625 Eye Street, NW 

Washington, DC 20006-4001 

Telephone: (213) 430–6000 

Facsimile: (213) 430–6407 

bboyle@omm.com 

sbarrett@omm.com 

John R. Landis Stuart M. Sarnoff (pro hac vice) 

FOLEY & LARDNER LLP William Pollak (pro hac vice) 

321 North Clark Street, Suite 3000 Times Square Tower 

Chicago, IL 60654-4762 7 Times Square 

Telephone: (312) 832–4539 New York, NY 10036 

Telephone: (212) 326–2000 

ssarnoff@omm.com 

wpollak@omm.com 

Attorneys for Aon Hewitt Investment Consulting 

Inc. (NKA Aon Investments USA, Inc.)

 

7 Fort Worth Emps.’ Ret. Fund v. J.P. Morgan Chase & Co., 297 F.R.D. 99, 107–08 (S.D.N.Y. 2013); see Opp. 9 

n.11, 12 nn.16–17. 

8

 AHIC’s estimate of the burden associated with these additional custodians is based on the relief requested in the 

Motion to Compel. It is worth noting that while plaintiffs characterize their request for additional discovery as 

“extremely narrowed,” “targeted,” and designed to “minimize AHIC’s burden” because it is limited to “only two 

discovery requests,” (Reply 2, 11) on March 26, 2021, plaintiffs sent AHIC a letter insisting that AHIC expand the 

discovery period by a full year for eight additional Requests (Nos. 3, 4, 14, 16, 23, 25, 32, 33). Plaintiffs’ March 26 

demand would only further exacerbate the already significant burden associated with these seven additional 

custodians.

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