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Durand v. The Hanover Insurance Group, Inc.

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

February 16, 2018

JENNIFER A. DURAND, On behalf of herself and on Behalf of all others similarly situated PLAINTIFFS
v.
THE HANOVER INSURANCE GROUP, INC., And THE ALLMERICA FINANCIAL CASH BALANCE PENSION PLAN DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          H. BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE.

         Before the Court are the following related motions: Defendants motion to enforce the scheduling order and for a protective order regarding untimely additional privilege challenges[1] (DN 235 SEALED); Plaintiffs' motion to update and amend the Court's December 17, 2013 class certification order[2] (DN 239, 240); and Plaintiffs' motion for in camera review of 218 additional documents that Defendants are withholding on privilege grounds (DN 242 SEALED). Plaintiffs have responded to Defendants' motion (DN 238 SEALED); Defendants have responded to Plaintiffs' motions (DN 246 SEALED, DN 250 SEALED); and Plaintiffs have filed replies in support of their motions (DN 253 SEALED, DN 257 SEALED). These matters are ripe for determination.

         Procedural History and Nature of the Motion

         The facts of this case have been fully recited on a number of occasions. Accordingly, the Court will only summarize the facts necessary to adequately address the pending motions. Plaintiff Jennifer A. Durand filed the original class action complaint that named as Defendants: the Hanover Insurance Group, Inc. (“Hanover”) and the Allmerica Financial Cash Balance Pension Plan (“Plan”) (DN 1 PageID # 8). The complaint alleges that Hanover (formally known as Allmerica Financial Corporation) was the sponsor, administrator, and a named fiduciary of this employee pension benefit plan (Id.).

         The Plan belongs to a subset of “defined benefit plans” that is known as “cash-balance” plans. Durand v. Hanover Ins. Group, Inc., 560 F.3d 436, 437 (6th Cir. 2009) (citing ERISA § 3(35), 29 U.S.C. § 1002(35)) (“Durand I”). When an employee who is vested in such a plan, leaves his or her employment with such a plan sponsor, the employee has the option of choosing whether the benefit will be distributed in the form of a single-life annuity, under which payments begin when the departing employee reaches retirement age, or a lump sum payment, made at the time of the employee's departure. Durand I, 560 F.3d at 438 (citation omitted).

         The original complaint alleges that Hanover or one of its affiliates employed Durand from October 17, 1995 until April 30, 2003, and she accrued pension benefits under the Plan throughout the approximately seven and a half years of her employment (Id. PageID # 8-9). It asserts that after ending her employment with Hanover, Durand elected to receive her fully-vested Plan benefits in the form of a lump-sum payment (DN 1 PageID # 9-12). Durand claims that the projection rate in the Plan's whipsaw calculation methodology violated ERISA because it understated the present value of her accrued benefit and, as a result, she suffered a partial forfeiture of her vested, accrued benefits[3] (Id. PageID # 9-14).

         Specifically, the complaint alleges that the Plan used a 401(k)-style investment menu to determine the interest earned by members' hypothetical accounts (Id. PageID # 9-14). Instead of using the interest credit rate that Durand selected from the 401(k)-style investment menu, Hanover and the Plan purportedly used the lower 30-year Treasury bond rate “(“GATT”) as the projection rate in the Plan's “whipsaw” calculation, in violation of 29 U.S.C. §§ 1053(e) and 1055(g) (ERISA §§ 203(e) and 205(g)) (Id.). Durand v. Hanover Ins. Group, Inc., 806 F.3d 367, 369 (6th Cir. 2015) (“Durand II”). The Plan again applied the GATT rate to discount the projected amount of Durand's benefit at normal retirement age back to its present value in 2003, thereby nullifying the effect of the projection-forward and resulting in a wash because the lump sum Durand received was identical to the amount in her hypothetical account at the time. Id. at 372.

         The complaint sets forth a broad definition of class membership at paragraph 30 (DN 1 PageID # 12). However, other allegations in the complaint made clear that class membership was contingent upon the Plan participant being vested and receiving a lump-sum distribution that understated the present value of his or her accrued benefit as a result of the Plan using the above described whipsaw calculation methodology that allegedly violated ERISA (Id. PageID # 9-14). Durand II, 806 F.3d at 372-73.

         The Sixth Circuit concluded that the original complaint focused on the lump-sum calculation and asserted only a whipsaw claim under 29 U.S.C. §§ 1053(a), (e) and 1055(g), 26 U.S.C. §§ 411(a) and 417(e). Durand II, 806 F.3d at 372-73. Further, the Sixth Circuit explained “[a] whipsaw claim alleges that a departing employee's lump-sum distribution understates the present value of her accrued benefit because of the use of a calculation methodology-in this case, a projection rate-that violates ERISA requirements.” Id. (citation omitted).

         In the amended complaint, filed December 15, 2009, Walter Wharton and Michael Tedesco joined Durand as individual plaintiffs and representatives of a putative class, seeking relief under ERISA § 502(a), 29 U.S.C. § 1132(a) (DN 46). The amended complaint named Durand as a member of the Class and the Pre-2004 Distribution Subclass; Wharton[4] as a member of the Class and the 2004-2006 Distribution Subclass; and Tedesco[5] as a member of the Class and the Post-2006 Distribution Subclass (Id. PageID #616-18). The amended complaint again named the Hanover Insurance Group, Inc. and the Allmerica Financial Cash Balance Pension Plan as Defendants (Id. PageID # 617).

         The amended complaint joined Wharton in Durand's original whipsaw claim (Id. PageID # 636-37). All three Plaintiffs asserted a new claim that challenged the method of crediting interest, sometimes referred to as an “interest crediting floor claim” (Id. PageID # 638, 640, 643; DN 71 PageID # 1234). Wharton and Tedesco claimed that the 2004 Plan amendment, that eliminated investment-experience interest crediting, constituted an impermissible cut-back of accrued benefits, in violation of ERISA § 204(g), 29 U.S.C. § 1054(g) (DN 46 PageID # 636, 640-45). Additionally, Wharton and Tedesco asserted that the Plan did not provide proper notice of the 2004 Plan amendment (Id. PageID # 629, 642, 644). The amended complaint, on behalf of all putative class members, also asserted claims that Hanover and the Plan had breached their fiduciary duties, under ERISA, to plan members in their administration of the Plan (DN 46 PageID # 645-48).

         Hanover and the Plan moved to dismiss the additional claims in the amended complaint on several grounds, including the statute of limitations (DN 51). The Court ruled that the following claims in the amended complaint were time-barred: (1) the interest crediting floor claim (challenged the method of crediting interest); (2) the cutback claim; (3) the improper notice claim, arising under § 204(h), in connection with the 2004 Plan amendment; and (4) all of the breach of fiduciary duty claims (DN 71 PageID # 1248-54). The Court observed “[t]he claims remaining in this action, therefore, are the original whipsaw claims of the plaintiff Durand with the joinder of the plaintiff Wharton” (Id. PageID # 1254).

         Durand, Wharton, and Tedesco moved the Court for reconsideration and/or clarification of its order dismissing certain claims as time-barred (DN 73). The Court concluded its timeliness analysis remained valid as to all of the previously addressed claims in the amended complaint, except the whipsaw-related fiduciary claim (DN 78 PageID # 1362-69). The Court noted that Defendants' motion had not challenged the timeliness of the whipsaw-related fiduciary claim and that such a determination was premature (Id. PageID # 1369). Further, the Court indicated it would defer ruling on the viability of the whipsaw-related fiduciary claim until full presentation of the issue on proper motion (Id. PageID # 1369-70). The Court indicated the “remaining claims are those of Durand and Wharton for benefits and breach of fiduciary duty arising from the alleged illegal methodology for calculating lump-sum distribution” (Id. PageID # 1371, emphasis added).

         The parties litigated the merits of Wharton's whipsaw benefits claim and whipsaw-related breach of fiduciary duty claim through a motion for partial summary judgment filed by Defendants (DN 82, 83). Hanover and the Plan argued, as a result of the 2004 Plan amendment, Wharton had no legally cognizable claims because the lump sum distribution to Wharton was within a safe harbor recognized by the IRS and the courts as not violating ERISA (Id. PageID # 1382-85). The Court agreed with Defendants and granted their motion for partial summary judgment as to Wharton's whipsaw and whipsaw-related breach of fiduciary duty claims (DN 102 PageID # 1589-90). Further, the Court expressly ordered “the claims of plaintiff Walter J. Wharton, and the prospective class members he represents, are DISMISSED with prejudice, there being no genuine issue of material fact and the defendants being entitled to judgment as a matter of law” (Id. PageID # 1600).

         Notably, in this same memorandum opinion and order, the Court addressed Plaintiffs' motion for class certification (DN 97, 102). Defendants opposed some, but not all, of Plaintiffs' proposals (DN 82, 99). The Court granted, in part, Plaintiffs' motion for class certification (DN 102 PageID # 1590, 1600). More specifically, the Court denied the motion as to the Wharton subclass because their claims were dismissed with prejudice (DN 102 PageID # 1590, 1600). The Court also directed the parties to jointly file a revised order certifying classes, claims and defenses, and appointing class counsel (Id. PageID # 1600).

         On December 17, 2013, the Court issued an order certifying the classes, claims, and defenses and appointing class counsel (DN 110). The Court found that Plaintiffs had established the prerequisites for class certification pursuant to Fed.R.Civ.P. 23(a) and that the requisites of Rule 23(b)(1)(A), (b)(1)(B), and (b)(2) had been met with regard to the lump-sum benefit whipsaw calculation and related fiduciary breach claims remaining in the case and that Plaintiffs' counsel should be appointed class counsel pursuant to Fed.R.Civ.P. 23(g) (Id. PageID # 1724-25). The order established an overall class (the “Lump Sum Class”) of vested Plan participants who received a lump sum distribution between March 1, 1997 and December 31, 2003 (Id. PageID # 1725). The order certified Durand as the overall class representative (Id.). Additionally, the order established a subclass (“Subclass A”) made up of class members who received their lump sum distribution between March 1, 1997 and March 12, 2002 (Id.). The order certified James A. Fisher, who received a lump sum distribution in 2000, the subclass representative (Id.). Having concluded the Wharton and Tedesco claims lacked merit, the Court declined to certify these plaintiffs as class representatives (DN 118 PageID # 1730).

         On December 17, 2013, the Court granted Plaintiffs' motion for entry of a final order on the post-2003 claims brought by Wharton and Tedesco (DN 104, 111) and issued a final judgment (DN 112) on its three orders dismissing their claims (DN 71, 78, 102). Additionally, the Court made clear all that remained for adjudication were the whipsaw and whipsaw-related breach of fiduciary claims (DN 111 PageID # 1687). Plaintiffs filed a timely notice of appeal (DN 120), and their appeal proceeded before the Sixth Circuit.

         Meanwhile, on December 9, 2014, Defendants filed a motion for summary judgment as to the claims of Subclass A (DN 127). Defendants argued the members of Subclass A should be dismissed with prejudice because their whipsaw claims are untimely (Id.). Plaintiffs responded with a motion to confirm the case management plan and defer briefing on Defendants' summary judgment motion (DN 128). Defendants responded to Plaintiffs' motion (DN 131) and Plaintiffs replied (DN 133).

         In a memorandum opinion and order issued on April 1, 2015, the Court stayed Defendants' motion for summary judgment pending completion of limited discovery on the Subclass A statute of limitations defense (DN 136). Thereafter, on May 11, 2015, the Court signed an agreed scheduling order regarding the completion of limited discovery on the Subclass A statute of limitations defense claims (DN 141). The agreed order included an acknowledgement by the parties that an amended scheduling order would be appropriate after the Sixth Circuit ruled on the pending appeal of the Wharton/Tedesco claims (Id.). Thereafter, amendments were made to the scheduling order as the discovery process proceeded.

         Meanwhile, the Sixth Circuit issued its opinion on November 6, 2015. Durand II, 806 F.3d at 367. The Sixth Circuit observed that Plaintiffs' appeal challenged only the dismissal of the cutback claims and breach of fiduciary duty claims related to the 2004 Amendment because they “abandoned the whipsaw claims of Wharton and the class members he sought to represent.” Id. at 370. The Sixth Circuit affirmed the Court's ruling that the cutback claims and related breach of fiduciary duty claims were untimely. Durand II, 806 F.3d at 374-77.

         In February, March, and April of 2016, Plaintiffs filed motions to compel related to documents they sought through written discovery that Defendants' refused to produce on claims of relevance, attorney-client privilege, and/or work-product protection (DN 168, 172, 180). In October 2016, the Court ruled on those motions (DN 208, 209, 210). Defendants moved for reconsideration (DN 212) as to seven documents that the Court concluded were subject to production under the fiduciary exception to the attorney-client privilege and work product doctrine (DN 209). In January 2017, the Court denied that motion (DN 216).

         In February 2017, Defendants filed a petition for writ of mandamus with the Sixth Circuit (DN 217) and moved the Court to stay enforcement of portions of the underlying order (DN 209) pending resolution of their petition. The Court granted the motion to stay (DN 220). In May 2017, the Sixth Circuit issued an order denying Defendants' petition for writ of mandamus (DN 221).

         In June 2017, the Court issued an order lifting the stay and directed Defendants to produce full versions of the documents identified in their motion for reconsideration (DN 222). In July 2017, the Court executed an agreed scheduling order for discovery and summary judgment briefing (DN 225). Of particular relevance to the motions presently before the Court, the scheduling order established an October 13, 2017 deadline for completing written fact discovery and a November 30, 2017 deadline for completing all fact witness depositions (Id.).

         On October 12, 2017, Defendants filed a motion for a limited extension of time in which to negotiate a non-waiver stipulation with Plaintiffs or to file a motion for a protective order before producing 26 privileged documents, containing communications seeking or providing legal advice about draft 204(h) notices (the “204(h) documents”), that Defendants maintained did not fall within the fiduciary exception to the attorney-client privilege[6] (DN 227). Although these 204(h) documents were not mentioned in Plaintiffs' motion to compel production of allegedly privileged documents (DN 168), Defendants recognized that the Court considered an email chain that involved legal advice regarding a draft 204(h) notice (HanoverPriv0087b) and ordered it produced because the communications fell within the fiduciary exception to the attorney-client privilege (DN 227 citing DN 209 at 44-45). Acknowledging the likelihood that the Court would reach a similar conclusion as to the 204(h) documents, Defendants explained they intended to produce the 204(h) documents once they had made clear, through a stipulated order or protective order, that their act of production did not constitute a waiver of their right to argue on appeal that the Court's rulings on the attorney-client privilege, the work-product doctrine, and the fiduciary exception were erroneous and that these documents should be excluded from production (DN 227). On October 20, 2017, the Court granted Defendants' motion for extension of time (DN 233).

         On October 18, 2017, five days after the deadline for completing written fact discovery, Defendants filed a motion for entry of an agreed order and stipulation regarding production of the 204(h) documents (DN 230). Defendants indicated they would be producing the 204(h) documents to Plaintiffs subject to this non-waiver stipulation (DN 230). On October 20, 2017, the Court granted Defendants' motion (DN 232).

         Plaintiffs report that Defendants actually produced only 19 of the 204(h) documents on October 18, 2017 (DN 257 SEALED PageID # 5111). According to Plaintiffs, Defendants produced the 7 other 204(h) documents on December 5, 2017 (Id.).

         The Parties' Arguments

         Before the Court are Defendants' motion to enforce the scheduling order and for a protective order forbidding Plaintiffs additional privilege challenges as untimely (DN 235 SEALED), Plaintiffs motion to update and amend the Court's December 17, 2013 class certification order (DN 239), and Plaintiffs motion for in camera review of 218 additional documents that Defendants are withholding on privilege grounds (DN 242 SEALED). These related motions arise out of the 204(h) documents that Defendants produced, subject to a nonwaiver stipulation, on October 18 and December 5, 2017.

         The parties have differing views regarding the timeliness of Plaintiffs' motions, the relevance of the 204(h) documents to the remaining claims and defenses, and whether the 204(h) documents provide an appropriate basis for amending the class certification order and conducting an in camera review of additional documents Defendants have withheld on claim of privilege. In making their arguments the parties have focused on the following 204(h) documents: (1) a November 6, 2003 letter from Leslie Klein, Allmerica's outside counsel, to J. Kendall Huber, Allmerica's General Counsel, discussing the enclosed draft 204(h) notice to Plan participants regarding the proposed 2004 Plan amendment (the “Klein-Huber Letter”) (HanoverPriv174450-52); (2) a May 2004 legal research memo prepared by Dominic DeMatties for Leslie Klien, both of whom are Allmerica's outside counsel, discussing a draft 204(h) notice to Plan participants regarding a proposed 2005 Plan amendment (the “DeMatties Memo”) (HanoverPriv174495-99); and (3) a string of email messages, beginning on November 17, 2003 and ending on November 19, 2003, between Allmerica in-house counsel and Human Resources personnel, including the Plan administrator Barbara Rieck, discussing Plan participant reaction to the 204(h) notice about the 2004 Plan amendment (the “November 17-19, 2003 Email String”) (HanoverPriv174491-93 and HanoverPriv174418-23) (DN 238 SEALED Attachments 2, 3 and 4).

         A

         The Court will begin with Defendants' motion to enforce scheduling order and for protective order regarding untimely additional privilege challenges (DN 235 SEALED). Their motion is brought pursuant to Rules 16(b)(4) and 26(c), and pursuant to the Court's inherent power to manage its schedule (DN 235 SEALED, DN 235-8 Proposed Order).

         The Court conducted a telephonic conference on November 3, 2017, and issued an order addressing part of Defendants' motion (DN 241). Specifically, the Court held the scheduling order deadlines in abeyance and ordered briefing to proceed on Plaintiffs' motions (Id.). In light of this ruling, the Court will construe Defendants' motion as a Rule 16(b)(4) challenge to Plaintiffs' two motions and a Rule 26(c) request for a protective order forbidding Plaintiffs' additional privilege challenges (DN 239 and DN 242 SEALED).

         1. The Parties' Arguments

         Defendants' assert that Plaintiffs' motions are untimely because the applicable scheduling order deadlines have expired (DN 235 SEALED PageID # 4179-81). Essentially, Defendants argue Plaintiffs were not diligent in conducting discovery because they could have sought and obtained the 204(h) documents months earlier and, relatedly, moved for in camera review of additional privileged documents weeks before the written discovery deadline expired on October 13, 2017 (DN 235 SEALED PageID # 4177-79, 4182-86). Defendants argue, due to this lack of diligence, Plaintiffs cannot demonstrate “good cause” to modify the applicable scheduling order deadlines and, therefore, the Court should enforce the scheduling order deadlines and deny Plaintiffs' untimely motions (DN 235 SEALED citing Fed.R.Civ.P. 16(b)(4); Bradford v. Shrock, No. 3:11-CV-00488-DJH, 2017 WL 3444801, at *2 (W.D. Ky. Aug. 10, 2017)). Additionally, and relatedly, Defendants assert they have, for nearly four years, conducted discovery and prepared their case based on the classes and claims delineated in the class certification order (DN 110) and, if the order is amended to include additional participants, they will be materially prejudiced because discovery will have to be reopened to explore those new claims (DN 235 SEALED citing Leary v. Daeschner 349 F.3d 888, 908 (6th Cir. 2003) (consider prejudice to the opposing party in deciding whether to amend a scheduling order)).

         Defendants disagree with Plaintiffs' characterization of the significance of the 204(h) documents (DN 235 SEALED). Defendants contend the 204(h) documents do not provide a basis for challenging their claim of privilege on any additional documents or for moving to amend the class certification order to include additional participants (Id.).

         Plaintiffs assert that the October 17, 2016 order, directing Defendants to produce an email communication about a draft 204(h) notice, put Defendants on notice that the Court would conclude the 204(h) documents are also subject the fiduciary exception and should be produced in a timely manner (DN 238 SEALED PageID # 4294 citing DN 209). Plaintiffs contend, because Defendants did not appeal the ruling as to that document, the 204(h) documents should have been produced by December 2016 or January 2017 (DN 238 SEALED). Plaintiffs point out Defendants finally produced the 204(h) documents on October 18, 2017, five days after the scheduling order deadline for completing written discovery (Id.). Plaintiffs argue Defendants' inordinate delay in producing the 204(h) documents, not Plaintiffs' lack of diligence in pursuing discovery, provides “good cause” to extend the scheduling order deadlines applicable to their two motions (DN 238 SEALED).

         Plaintiffs assert that until they received the documents on October 18, 2017, they had no reason to question Defendants' claim of privilege on any additional documents or move to amend the class certification order to include additional participants (Id.). Plaintiffs contend the 204(h) documents are of the utmost relevance to the whipsaw related breach of a fiduciary duty claims and provide sufficient information to make a prima facie showing that the crime-fraud exception and/or the fiduciary exception apply to additional documents Defendants have wrongfully designated as privileged (DN 238 SEALED PageID #4274-75). Plaintiffs contend the Court should conduct an in camera review of the additional documents before the depositions of fact witnesses begin because they intend to depose the people who sent or received most of those communications (Id.).

         2. Analysis

         The Federal Rules of Civil Procedure commit to the district court's sound discretion whether to amend a pretrial scheduling order. Fed.R.Civ.P. 16(b)(4). Specifically, Rule 16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge's consent.” The Sixth Circuit has indicated “[t]he primary measure of Rule 16's ‘good cause' standard is the moving party's diligence in attempting to meet the case management order's requirements.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (citation and internal quotations omitted); see also, Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003) (A court “may modify a scheduling order for good cause only if a deadline cannot reasonably be met despite the diligence of the party seeking the extension.”). “Another relevant consideration is possible prejudice to the party opposing the modification.” Inge, 281 F.3d at 625 (citation omitted). The Court must first find that the moving party proceeded diligently before considering whether the nonmoving party is prejudiced, and only then to ascertain if there are any additional reasons to deny the motion. Smith v. Holston Med. Grp., P.C., 595 F. App'x 474, 479 (6th Cir. 2014). Thus, the movant who fails to show “good cause” will not be accorded relief under Rule 16(b)(4) merely because the opposing party will not suffer substantial prejudice as a result of the modification of the scheduling order. Interstate Packaging Co. v. Century Indemnity Co., 291 F.R.D. 139, 145 (M.D. Tenn. 2013) (citing Leary, 349 F.3d at 906, 909; Korn v. Paul Revere Life Ins. Co., 382 F. App'x 443, 449 (6th Cir. 2010)).

         Following entry of the class certification order on December 13, 2012(DN 110), the scheduling order amendments did not establish a deadline for filing a motion to amend the class certification order. Additionally, past scheduling orders established deadlines for Plaintiffs to file a motion to compel production of documents that Defendants are withholding on claim of privilege (see DN 139, 140, 141, 151-1, 152). Additionally, the Court twice extended Plaintiffs' deadline (DN 166, 167) and Plaintiffs' filed their motion on February 26, 2016 (DN 168). However, subsequent amendments to the scheduling order did not establish a deadline for filing such a motion.

         Notably, in their arguments, both parties rely on the most recent amendments to the scheduling order (DN 225). Primarily, they focus on the October 13, 2017 deadline for completion of all written fact discovery which established a three month period in which to complete all written discovery (Id.). The parties also discuss the September 15, 2017 date for exchanging their proposed fact witness deposition lists and the November 30, 2017 deadline for completing all fact witness depositions (Id.).

         The record shows on October 18, 2017, three days after the written discovery deadline expired, Defendants produced 19 of the 204(h) documents. On December 5, 2017, Defendants produced the 7 other 204(h) documents (DN 257 SEALED PageID # 5111). This means although production of the 204(h) documents may have begun three days after the applicable scheduling order deadline expired, it was not completed until 50 days later.

         After considering the parties' arguments and the record, the Court notes the issue of Plaintiffs' diligence is a close call. However, the Court cannot ignore the fact that Plaintiffs did not have the opportunity to begin reviewing the 204(h) documents until five days after the October 13, 2017 deadline expired. Unquestionably, Plaintiffs were diligent in filing the two motions after reviewing the documents. Therefore, the Court finds that good cause exists to modify the scheduling order deadlines with regard to both of Plaintiffs' motions.

         Moving to the issue of prejudice under Rule 16(b)(4). Courts consider the extent of prejudice to the nonmoving party to ascertain whether any additional reasons exist to deny the motion. Smith, 595 F. App'x at 479. Here, Defendants have at best made a generalized claim of prejudice arising out of Plaintiffs' two motions (DN 235 SEALED). Further, the alleged prejudice, additional discovery and motion practice, would have occurred if Defendants produced the 204(h) documents months sooner because Plaintiffs would have filed their two motions. Additionally, until the Court rules on Plaintiffs' two motions it would be speculative at best to predict the need for additional discovery and motion practice. Thus, the Court concludes that Defendants have failed to demonstrate they will suffer substantial prejudice as a result of modifying deadlines in the scheduling order.

         The Court will now address Defendants' request for relief under Rule 20(c). The Rule affords the Court with the discretion to further limit the scope of discovery under certain circumstances. See Levitin v. Nationwide Mut. Ins. Co., No. 2:12-CV-34, 2012 WL 6552814, at *3 (S.D. Ohio Dec. 14, 2012). Specifically, the Court may issue a protective order “forbidding the disclosure or discovery” or “forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters” to prevent “annoyance, embarrassment, oppression, or undue burden or expense” where the movant has established “good cause” for such an order. Fed.R.Civ.P. 26(c)(1)(A) and (D); Levitin, 2012 WL 6552814, at *3; Nix v. Sword, 11 Fed.Appx. 498, 500 (6th Cir.2001). “To show good cause, a movant for a protective order must articulate specific facts showing clearly defined and serious injury resulting from the discovery sought and cannot rely on mere conclusory statements.” Nix, 11 Fed.Appx. at 500 (internal quotation marks and citation omitted).

         Again, Defendants have at best made a generalized claim of prejudice arising out of Plaintiffs' request for an in camera review of additional documents Defendants claim are privileged (DN 235 SEALED). Additionally, until the Court rules on the merits of Plaintiffs' motion the question of prejudice would be at best speculative. Thus, Defendants have failed to articulate specific facts showing a clearly defined and serious injury.

         In sum, Defendants' motion (DN 235 SEALED) is denied, and the Court will address the merits of Plaintiffs' motion to update and amend the class certification order (DN 239) and motion for in camera review of 218 additional documents Defendants are withholding on privilege grounds (DN 242 SEALED). Additionally, Defendants motion for expedited hearing (DN 236) is denied.

         B

         Next, the Court will address Plaintiffs' motion to update and amend the Court's class certification order (DN 239). They propose some minor modifications to the Lump Sum Class definition and a mix of minor and substantial changes to the Subclass A definition (Id.). Their motion is brought pursuant to Rule 23(c)(1)(C) (DN 239, DN 239-1 Proposed Order).

         In pertinent part Rule 23 reads, “[a]n order that grants or denies class certification may be altered or amended before final judgment.” Fed.R.Civ.P. 23(c)(1)(C). The Sixth Circuit has indicated that district courts have a “continuing obligation to ensure that the class certification requirements are met, and [may] alter or amend the certification order as circumstances change.” Randleman v. Fidelity Nat'l Title Ins. Co., 646 F.3d 347, 352 (6th Cir. 2011). This means that district courts have an ongoing duty to assess the propriety of class certification and they must be prepared under Rule 23(c) to alter or amend the class certification as necessary. See, e.g., Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 618 (6th Cir.2013) (Commenting that “a district court's responsibilities with respect to Rule 23(a) do not end once the class is certified.”); Barney v. Holzer Clinic, Ltd., 110 F.3d 1207, 1214 (6th Cir.1997) (duty to ensure that the prerequisites of Rule 23(a) are satisfied continues after initial certification); Sutton v. Hopkins Cnty., Ky., 2007 WL 119892, at *2 (W.D.Ky. Jan. 11, 2007) (“Pursuant to Fed.R.Civ.P. 23, the district court is charged with the duty of monitoring its class decisions in light of the evidentiary development of the case [and] must define, redefine, subclass, and decertify as appropriate in response to the progression of the case from assertion to facts.” (internal quotation marks and citations omitted)); accord Burns v. U.S. R.R. Ret. Bd., 701 F.2d 189, 191-92 (D.C.Cir.1983) (Ginsburg, J. Ruth Bader) (as the case progresses the original definition and certification may need to be altered or amended).

         Essentially, Rule 23(c)(1)(C) is triggered by the development of more facts that may render the original determination unsound. In re FleetBoston Fin. Corp. Sec. Litig., 253 F.R.D. 315, 338 (D.N.J. 2008) (citing Fed.R.Civ.P. 23 Adv. Comm. Notes, Subdivision (c)(1) (1966)). Thus, as discovery progresses, a district court may need to make appropriate adjustments to the class definition. In re Whirlpool Corp. Front-Loading Prod. Liab. Litig., 302 F.R.D. 448, 459, 462-63 (N.D. Ohio 2014). Prejudice to a defendant is a consideration in the decision whether to recertify a class. Id. at 463-65 (court considered whether the prejudice was severe enough to preclude an adjustment to the class definition). Further, when the parties' own proposals for adjustments to the class definition are not adequate or accurate; the district court has an obligation to create a new class definition sua sponte. Id. at 462-63 (citations omitted).

         1. Proposed Amendments Regarding the Lump Sum Class

         In pertinent part, the class definition currently reads as follows:

1. The proposed overall Lump Sum Class, propose to be represented by Plaintiff Jennifer A. Durand who received a lump sum distribution from the Plan in 2003, is defined as:
All persons who participated in the Allmerica Cash Balance Pension Plan who vested in and accrued benefit under the Plan's cash balance formula and received a lump sum distribution from the Plan between March 1, 1997 and December 31, 2003; and the beneficiaries and estates of such persons.

(DN 110 PageID # 1725). Plaintiffs recommend the Lump Sum Class be redesignated as the Whipsaw Benefits Class because its members are asserting timely claims under ERISA § 502(a)(1)(B) and/or § 502(a)(3), for additional lump-sum pension benefits due under the terms of the Plan and ERISA (DN 239-1 PageID # 4394-95). Plaintiffs also recommend removing from the class the Plan participants who received lump sum distributions between March 1, 1997 and March 12, 2002 because those participants do not have viable whipsaw claims. Thus, Plaintiffs are suggesting ...


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