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Davis v. Hartford Life & Accident Insurance Co.

United States District Court, W.D. Kentucky, Louisville Division

January 9, 2018

RICHARD E. DAVIS, PLAINTIFF
v.
HARTFORD LIFE & ACCIDENT INSURANCE COMPANY, DEFENDANT

          OPINION AND ORDER

          Lanny King, Magistrate Judge

         Senior Judge Thomas B. Russell referred this matter to Magistrate Judge Lanny King for resolution of discovery issues. (Docket # 51).

         Plaintiff, Richard E. Davis (“Davis”), filed a Motion to Compel Defendant, Hartford Life & Accident Insurance Company (“HLAIC” or “Hartford”), to provide responses to his requests for production that were issued on August 23, 2017. (Docket # 95). Hartford filed a Response in opposition, arguing that Davis' request is untimely because discovery closed on March 31, 2017, and asserting that Davis seeks documents that were previously prohibited from being released in the Court's March 2017 Order regarding Davis' first Motion to Compel. (Docket # 97). Davis' Reply restates his position and addresses each of Hartford's arguments. (Docket # 99). Fully briefed, this Motion is ripe for adjudication. For reasons detailed below, Plaintiff's Motion to Compel is GRANTED IN PART and DENIED IN PART.

         Background

         At the heart of this dispute is a disagreement over additional requests for production made after both discovery and deposition deadlines had passed. Davis asserts a breach of contract claim, pursuant to the Employment Retirement Income Security Act of 1974 (“ERISA”), in relation to Hartford's denial of his disability benefits.[1] (Docket # 1 at 2; 27 at 1). After deposing Hartford's 30(b)(6) witness, Davis requested additional documents for production. The Court held several status conferences and ordered Hartford to supplement its responses to Davis' request for production. After receiving Hartford's supplemented responses, Davis filed this Motion to Compel.

         Relevant Procedural Background

         On March 31, 2017, the Court held a telephonic status conference with the parties regarding discovery matters. (Docket # 83). The Court noted in the March 2017 Order that, upon information of the parties, Hartford had provided written discovery responses to Davis on March 29, 2017, the night before the call, and that Davis' counsel had not had time to review all of the responsive documents to determine whether a motion to compel was still necessary. (Docket # 83). The Court also noted that the parties had agreed that various depositions were not yet scheduled because they were contingent on Hartford's discovery responses. (Docket # 83). Thus, with respect to the discovery deadlines, the March 2017 Order provides, “[t]he discovery deadline of March 31, 2017 as set forth in the Agreed Scheduling Order (Docket # 74) shall be vacated and extended only for the purposes of completing depositions.” (Docket # 83).

         The Court held another telephonic status conference with the parties on April 17, 2017. (Docket # 84). In the April 2017 Order, the Court reiterated that “[t]he discovery deadline of March 31, 2017, as set forth in the Agreed Scheduling Order (Docket # 74) which was later vacated by this Court (Docket # 83), shall be extended only for the purposes of completing depositions.” (Docket # 84). Additionally, the April 2017 Order provides that all depositions must be scheduled and completed no later than June 15, 2017. (Docket # 84). Davis deposed two of the witnesses before the June 15th deadline. (Docket # 85, 86, 87). However, the parties entered an agreed order to extend the deposition deadline for the 30(b)(6) witness to July 19, 2017. (Docket # 89). Davis deposed the 30(b)(6) witness on July 13, 2017 (Docket # 90) and subsequently issued to Hartford an additional request for production. (Docket # 95-1, 2).

         Following Davis' additional written discovery requests, the Court held two telephonic status conferences. (Docket # 93, 94). During the second telephonic status conference on September 28, 2017, the Court ordered Hartford to supplement its responses to Davis' additional request for production and, if needed, directed Davis to file a Motion to Compel his requests for production. (Docket # 94). On October 23, 2017, Davis filed this Motion to Compel. (Docket # 95).

         Discussion

         A. Some of Davis' additional requests to produce are timely.

         The initial issue is whether Davis' additional requests to produce are timely.

District courts exercise extremely broad discretion in controlling discovery. Federal Rule of Civil Procedure 37 permits a party to move for an order to compel a complete response to properly submitted interrogatories or requests for production of documents. However, “[i]f a delay in moving to compel results in substantial prejudice to the party to whom it is directed, the district court may hold the requesting party has waived the right to compel a response.”

Hyland v. Homeservices of Am., Inc., No. 3:05-CV-612, 2012 WL 1680109, at *16-18 (W.D. Ky. May 14, 2012) (citations omitted). Generally, the discovery deadline specifies the date on which all discovery must be completed. See Arnott v. Ashland Hosp. Corp., No. 0:15-CV-0032-DLB, 2016 WL 7974071, at *1 (E.D. Ky. Apr. 14, 2016) (discussing Fed.R.Civ.P. 33(b)(3) and 34(b)). However, courts have allowed discovery requests that would require responses after the close of discovery in certain circumstances. Indeed, this Court has broad discretion under the rules of civil procedure to manage the discovery process. Marie v. Am. Red Cross, 771 F.3d 344, 366 (6th Cir. 2014).

         Davis admits that the Court's March 2017 Order specifically provides that the discovery deadline of March 31, 2017 was extended only for the purposes of completing the depositions. Nevertheless, Davis contends that the surrounding circumstances and conversations that took place with the Court during multiple status conferences permitted him to issue the additional requests after the depositions were taken. Davis argues that he informed the Court during the status conferences that there may be additional discovery needed based upon the testimony from the depositions - specifically the testimony of Hartford's 30(b)(6) witness. Davis asserts that the Court agreed that additional discovery may be needed and necessary, but was not willing to completely reopen discovery. Thus, Davis contends that the Court entered an order directing the parties to complete the depositions with the understanding that Davis could seek additional discovery that may arise specifically out of the depositions.

         Hartford responds that the Court's language in the March 2017 Order (Docket # 83) indicates that the Court made a deliberate decision not to extend written discovery, effectively concluding the written discovery phase of this case on March 31, 2017. Hartford argues that during the April 10 status conference, the parties discussed discovery deadlines but that the Court subsequently entered an updated scheduling order which confirmed that there were “no additional issues with Defendant's written discovery responses” and that the discovery deadline would be extended through June 15, 2017 but “only for the purposes of completing depositions.” (Id. at 11-12) (quoting Docket # 84). Accordingly, Hartford asserts that the March 2017 Order clearly and strictly limited any remaining discovery to depositions. (Docket # 97, p. 11-14).

         In this case, several status conferences were held in order to discuss the movement of discovery deadlines. Throughout the course of this litigation, the Court moved discovery deadlines by agreement of the parties. Although the Court was unwilling to re-open discovery and extend it, there was an understanding that new information and/or relevant and necessary information may be discussed during depositions that were not yet taken. In order to keep the discovery deadlines intact, this Court extended the discovery deadline for purposes of completing depositions with the understanding that Davis may seek additional discovery based on those depositions. Thus, the Court permits additional requests to produce on information that was discussed during the deposition(s).

         Hartford asserts that the Federal Rules of Civil Procedure further prohibit Davis' tactics in trying to obtain a second bite at the written discovery apple. Hartford relies on Federal Rule of Civil Procedure 26(b), which provides that the court “must limit the frequency or extent of discovery… if it determines that… the party seeking discovery has had ample opportunity to obtain the information by discovery in this action.” Fed.R.Civ.P. 26(b). Hartford contends that Davis has had ample opportunity to obtain discovery over the last two years and that the Federal Rules of Civil Procedure supports “shutting down any more delay and increase of costs in this fee-shifting litigation.” (Docket # 97, p. 13, n.3).

         However, over the course of the last three years, there have been numerous discovery disputes between the parties which have resulted in a delay of the discovery process. Indeed, Hartford filed a Motion for Protective Order on Deposition Notices after receiving the first set of deposition notices. (Docket # 66). Moreover, over the course of 2016 and 2017, Davis issued deposition notices to Hartford four separate times before Hartford's witnesses were actually deposed. (Docket # 61, 62, 63, 75, 76, 79, 80, 85, 86, 87, 90). Any “delay” that Hartford has experienced from Davis' additional production requests may be faulted to both parties. Therefore, the Court finds that Davis' additional requests to produce, based on information learned in the depositions, are timely.

         Additionally, Hartford argues that Davis' additional requests exceed the bounds of permissible ERISA discovery and the Court's prior November 2015 Order (Docket # 35)[2], are repetitive, and are too broad in both scope and time. Davis disagrees.

         B. Davis' requests to produce are granted in part and denied in part.

         As the Court cautioned in the November 2015 Order, discovery in this case is to be limited to conflict of interest and allegations of bias. Docket # 35, p. 6. Appropriate areas of discovery include whether “(i) there is a history of biased claim denials; (ii) the employer has made measures to reduce bias and promote accuracy; and (iii) company policies reward or encourage denials.” Kasko v. Aetna Life Ins. Co., 33 F.Supp.3d 782, 788 (E.D. Ky. 2014) (citing Raney v. Life Ins. Co. of N. Am., No. 08-169-JMH, 2009 WL 1044891, at *3 (E.D. Ky. 2009)). This Court follows other courts in the Sixth Circuit, which have compiled a list of “permitted areas of inquiry-topics on which discovery related to an inherent conflict of interest may be had by an ERISA plaintiff.” Docket # 35, pp. 6-7 (citing Busch v. Hartford Life & Accident Ins. Co., No. CIV.A. 5:10-00111, 2010 WL 3842367, at *4 (E.D. Ky. Sept. 27, 2010)). This list includes:

• “incentive, bonus or reward programs or systems formal or informal for any employees involved in any meaningful way in reviewing disability claims.” Myers v. Prudential Ins. Co. of Am., 581 F.Supp.2d 904, 914 (E.D. Tenn. 2008).
• “contractual connections between [plan administrator/payor] ... and the reviewers utilized in Plaintiff's claim ... and financial payments paid annually to the reviewers from the [administrator/payor].” Pemberton v. Reliance Standard Life Ins. Co., No. CIV. A. 08-86-JBC, 2009 WL 89696, at *3 (E.D. Ky. Jan. 13, 2009).
• “statistical data regarding the number of claims files sent to the reviewers and the number of denials which resulted.” Id.
• “number of times the reviewers found claimants able to work in at least a sedentary occupation or found that claimants were not disabled.” Id.
• “documentation of administrative processes designed only to check the accuracy of grants of claims (limited to claims guidelines actually consulted to adjudicate plaintiff's claims).”

Docket # 35, pp. 6-7 (citing Gluc v. Prudential Life Ins. Co. of Am., No. 3:14-CV-519-DJH, 2015 WL 4746249, at *6 (W.D. Ky. Aug. 5, 2015) (quoting Bird v. GTX, Inc., No. 08-2852-JPM-CGC, 2009 WL 3839478, at *3 (W.D. Tenn. Nov. 13, 2009)). Furthermore, specific categories of information that are not within the areas of permitted discovery are areas falling under the general category of reviewer credibility. See Docket # 35, p. 7. With this standard in mind, the Court moves on to the substance of the parties' dispute.

         i. No. 27. HLAIC's “Claims Excellence” Manual

         In request to produce (“RPD”) number 27, Davis requests Hartford's “Claims Excellence” Manual. Hartford argues that Davis is seeking the same document that he unsuccessfully sought in the first Motion to Compel, which dealt with Davis' first set of requests to produce, numbers 2 and 3, in which Davis sought “[c]laim administration materials and manuals utilized by, or available to, the long term disability claims unit” as well as “[t]raining materials and manuals utilized by, or available to, the long term disability claims unit.” (Docket # 97-12). In the November 2015 Order, the Court found that both of Davis' RPD numbers 2 and 3 were “overly broad and [sought] information Davis is not entitled to discover.” Docket # 35, p. 20.

         Davis contends that while the Court initially denied Davis' request for this information (Docket # 35), the Court “left open the door” for Davis to provide a more specific request. Davis argues that Hartford's 30(b)(6) witness identified the “Claims Excellence” Manual as the document that contained Hartford's policies and procedures. Although Davis concedes that the 30(b)(6) witness did not specifically state that those involved in the administration of Davis' claim and appeal referenced the “Claims Excellence” manual, Davis argues that the witness confirmed that those involved with Davis' claim were trained using the “Claims Excellence” and that the “Claims Excellence” Manual would necessarily inform employees on how to handle Davis' claim and appeal.

         Contrarily, Hartford contends that the Court did not “leave the door open” for Davis to request a more specific manual. Hartford argues that the Court ultimately denied Davis' request and Davis never moved for reconsideration of this holding; therefore, the denial serves as the definitive law of this case and forecloses Davis' request. Further, Hartford asserts that the Court's prior discovery holding expressly cautioned that discovery into claims manuals was limited to materials “actually consulted” or relied upon in adjudicating the claim at issue. Hartford argues that Davis concedes, and has not proved, that Hartford actually consulted the “Claims Excellence” Manual in adjudicating Davis' specific claim.

         Significantly, Hartford fails to cite to any case law that supports its position that once this Court finds that a request to produce is too broad to be enforced, the party is now foreclosed from requesting more specific documents. Indeed, as Davis points out, a narrow request may fit within the confines of ERISA discovery as well as the Court's prior November 2015 Order.[3] Nevertheless, the Court would reach the same conclusion whether or not Davis was ultimately foreclosed from requesting the “Claims Excellence” Manual. Davis is not entitled to the “Claims Excellence” Manual because he has not proven that it was used in conjunction with Davis' denial of claim and appeal. After review of the deposition transcript of Annette Moore, the 30(b)(6) witness, it is clear that the “Claims Excellence” Manual contains the policies and the standard procedures for ensuring Hartford Fire complies with ERISA claim regulations, and more specifically, denying claims for benefits. (Docket # 95-4, Moore Dep. 72:7-10; 78:7-13; 84:13-21). Moore also testified that the “Claims Excellence” Manual may be used as a reference tool for questions that may arise during claims handling and that employees train directly from the Manual. (Docket # 95-4, Moore Dep. 73: 7-11; 73:21-75:13). However, Moore did not testify that employees actually consulted with or used the “Claims Excellence” Manual in Davis' claim or appeal. As explained in the Court's previous November 2015 Order, an ERISA plaintiff, such as Davis, may obtain “documentation of administrative processes designed only to check the accuracy of grants of claims (limited to claims guidelines actually consulted to adjudicate plaintiff's claims).” Docket # 35, pp. 6-7 (emphasis added) (citations omitted). Therefore, Davis' Motion to Compel RPD number 27 is DENIED.

         ii. No. 28. Each contract/agreement between HLAIC and Hartford Fire Insurance Company (“Hartford Fire”) relating to the administration of long-term disability claims.

         iii. No. 29. Each contract/agreement between HLAIC and Hartford Fire Insurance Company relating to claims services, including the use of Hartford Fire employees, systems, and assets.

         In RPD numbers 28 and 29, Davis requests contracts and agreements between Hartford and Hartford Fire relating to the administration of long-term disability claims and the use of Hartford Fire employees, systems, and assets. Davis argues that, in order to sufficiently address the standard of review in briefing, Davis has and continues to seek information into the relationship between Hartford and Hartford Fire Insurance. Conversely, Hartford contends that that the temporal scope of the request is overly burdensome and intended to harass Hartford. Further, Hartford asserts that Davis has already obtained written discovery and testimony addressing this topic, including: sworn interrogatory statements, deposition testimony, and evidence in the Administrative Record.

         Neither party cites to the fact that the Court already ruled on Davis' RPD number 17 in the first Motion to Compel. (Docket # 35, pp. 21-22). In RPD number 17, Davis requested “[e]ach document demonstrating any delegation of discretionary authority.” Docket # 97-12. In response, Hartford pointed to the administrative record and referred Davis to U.S. Bank Long Term Disability Group Plan. Docket # 35, pp. 21-22. The Court denied Davis' Motion to Compel and held that Hartford provided Davis with a direct citation to the administrative record, which should have been sufficient to determine if there is ...


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