United States District Court, W.D. Kentucky, Louisville Division
RICHARD E. DAVIS, PLAINTIFF
HARTFORD LIFE & ACCIDENT INSURANCE COMPANY, DEFENDANT
OPINION AND ORDER
King, Magistrate Judge
Judge Thomas B. Russell referred this matter to Magistrate
Judge Lanny King for resolution of discovery issues. (Docket
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.
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. (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.
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).
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).
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).
Some of Davis' additional requests to produce are
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
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.
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
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).
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
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).
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.
Hartford argues that Davis' additional requests exceed
the bounds of permissible ERISA discovery and the Court's
prior November 2015 Order (Docket # 35), are repetitive,
and are too broad in both scope and time. Davis disagrees.
Davis' requests to produce are granted in part and denied
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
• “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
No. 27. HLAIC's “Claims Excellence”
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.
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.
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.
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. 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.
No. 28. Each contract/agreement between HLAIC and
Hartford Fire Insurance Company
(“Hartford Fire”) relating to the administration
of long-term disability claims.
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.
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
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 ...