United States District Court, W.D. Kentucky, Louisville Division
JENNIFER A. DURAND, On behalf of herself and on Behalf of all others similarly situated PLAINTIFFS
THE HANOVER INSURANCE GROUP, INC., And THE ALLMERICA FINANCIAL CASH BALANCE PENSION PLAN DEFENDANTS
MEMORANDUM OPINION AND ORDER
BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE.
the Court are the following related motions: Defendants
motion to enforce the scheduling order and for a protective
order regarding untimely additional privilege
challenges (DN 235 SEALED); Plaintiffs' motion to
update and amend the Court's December 17, 2013 class
certification order (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.
History and Nature of the Motion
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.).
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
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 (Id. PageID # 9-14).
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.
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.
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
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 as a member of
the Class and the 2004-2006 Distribution Subclass; and
Tedesco 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).
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).
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).
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).
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).
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).
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).
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.
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).
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.
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.
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).
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).
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
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 (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).
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).
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 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.
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).
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).
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).
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
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
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).
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.).
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)).
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.
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.).
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
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.
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
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).
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.
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.
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
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).
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).
Proposed Amendments Regarding the Lump Sum Class
pertinent part, the class definition currently reads as
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 ...