Rosen v. UNUM Provident Corporation

Filing 65

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 7/10/15. (SAC )

FILED
2015 Jul-10 PM 02:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LAWRENCE ROSEN, M.D.,

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Plaintiff,
v.
PROVIDENT LIFE AND
ACCIDENT INSURANCE
COMPANY,

CIVIL ACTION NO.
2:14-CV-00922-WMA

Defendant.
MEMORANDUM OPINION
Under the Federal Rules of Civil Procedure, parties have a
general duty to disclose and to cooperate during discovery. See
Fed. R. Civ. Proc. 26. “In general, it is hoped that reasonable
lawyers can cooperate to manage discovery without the need for
judicial intervention.” Fed. R. Civ. Proc. 26, Advisory Committee
Notes. In the above entitled case, instead of cooperating as
envisioned by the rule makers, the parties, particularly defendant
Provident Life and Accident Insurance Company (“Provident”), have
excessively filed layer upon layer of intertwined discovery motions
and objections to discovery requests.
“Federal Rule of Civil Procedure 26 authorizes a court to
limit discovery where such discovery is cumulative or duplicative,
the party seeking discovery has had ample opportunity to obtain the
information, and the discovery is unduly burdensome or expensive,
taking

into

account

the

needs

1

of

the

case,

the

amount

in

controversy,

limitations

on

the

parties'

resources,

and

the

importance of the issues at stake in the litigation.” Panola Land
Buyers Ass'n v. Shuman, 762 F.2d 1550, 1558-59 (11th Cir. 1985). A
“party resisting discovery must show specifically how . . . each
interrogatory is not relevant or how each question is overly broad,
burdensome or oppressive.” Id. at 1559 (citation omitted). In this
case that burden is on Provident. The scope of discovery is largely
within the discretion of the trial court because “[d]iscovery
should be tailored to the issues involved in the particular case.”
Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570
(11th

Cir.

1992).

Exercising

this

discretion,

the

court

now

undertakes to resolve the parties’ multi-faceted discovery dispute.
Shortly

after

this

court’s

January

21,

2015

memorandum

opinion, order, and addendum (Doc. 38, 39, and 40), which this
court believed would smooth out the discovery flaps,1 plaintiff
Lawrence

Rosen

(“Rosen”)

filed

a

renewed

motion

to

compel

production of documents (Doc. 44) and a renewed motion to compel
deposition testimony (Doc. 45). Provident replied to both motions
on March 9, 2015 (Doc. 47 and 48), whereupon Rosen filed responses
on March 19, 2015 (Doc. 50 and 51). Provident then filed a separate
motion to strike Rosen’s replies, objecting to and moving to
exclude allegedly inadmissible documents and references. (Doc. 52).

1

Rosen originally filed a motion to compel production of
documents (Doc. 27) and a motion to compel deposition testimony
(Doc. 29) on November 13, 2014.
2

On April 20, 2015, Provident moved for a protective order
(Doc. 55), to which Rosen replied on April 22, 2015 (Doc. 56). On
April 27, 2015, Provident filed a motion to compel production of
documents. (Doc. 57). Rosen replied on April 29, 2015 (Doc. 58),
and Provident responded June 11, 2015 (Doc. 60). Finally, on May
28, 2015,

Rosen

filed

a

motion

to

compel,

supplementing

his

previously filed renewed motion to compel. (Doc 59). Provident
replied on June 24, 2015. (Doc. 61).
Having been monumentally briefed, the motions are now under
submission. For the reasons expressed below, the court will deny
Provident’s motion to strike (Doc. 52), motion for a protective
order (Doc. 55), and motion to compel (Doc. 57), and will grant
Rosen’s renewed motion to compel and supplement to his renewed
motion to compel (Doc. 44 and Doc. 59) and renewed motion to compel
deposition testimony (Doc. 45).
I.

Provident’s motion to strike
“The United States Supreme Court has recognized that the

discovery rules are to be accorded a broad and liberal treatment,
and discovery should be allowed if the information sought appears
reasonably calculated to lead to the discovery of admissible
evidence.” Dunbar v. United States, 502 F.2d 506, 509 10 (5th Cir.
1974) (citing Hickman v. Taylor,329 U.S. 495, 507-508 (1947)).
Here, Provident’s motion to strike, labeled as an objection
and motion to exclude, seeks to exclude certain documents and

3

references contained in Rosen’s various motions also currently
under submission, on the basis that the information is inadmissible
hearsay and not relevant. (Doc. 52 at 1). However, Provident
deliberately overlooks the purpose of these certain documents and
references and incorrectly points to admissibility at trial as the
basis for their exclusion. (Doc. 52). Rosen does not offer these
documents and references from other factual findings in other cases
or court proceedings for any dispositive value in this case.
Rather, Rosen clearly offers these documents and references to
“highlight the fact that the documents [] requested exist and []
are easily accessible by Provident.” (Doc. 50 at 4). Even without
these certain documents and references, Rosen’s requests are far
from being “simply a ‘fishing expedition’ whose burdens or expenses
“outweigh[] [their] likely benefit.”

Shannon v. Albertelli Firm,

P.C., 2015 WL 2114055, at *4 (11th Cir. May 7, 2015). Rather, these
documents actually reduce the discovery burden on Provident by
providing additional clarity as to the information Rosen seeks to
discover.

Id.

Therefore,

Provident’s

objection

and

motion

to

exclude inadmissible documents and references will be denied.
Provident’s motion approaches the prohibited line under the
federal rules between a legal contention warranted by reason and
existing law and sanctionable frivolousness. Fed. R. Civ. Proc. 11.
A motion to strike “is a drastic remedy to be resorted to only when
required for the purposes of justice . . . [and] should be granted

4

only when the pleading to be stricken has no possible relation to
the controversy.” Augustus v. Bd. of Pub. Instruction of Escambia
Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962); see Bonner v.
Prichard, 661 F.2d 1206, 1209 (5th Cir. 1981). “A court may take
judicial notice of its own records and the records of inferior
courts.” United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir.
1987); see Fed. R. Evid. 201. Under the disfavored posture of a
motion to strike, Provident seeks to strike Rosen’s reference to
the judicial records in other district court cases, in stark
contrast to the established notions of judicial notice. (Doc. 52).
Being a legal contention within the boundaries of Rule 11 is even
more problematic for Provident inasmuch as Rosen merely offers
these documents in his discovery motions to prove the documents
exist and not the truth of the documents. See Bryant v. Avado
Brands, Inc., 187 F.3d 1271, 1277 (11th Cir. 1999) (distinguishing
between judicial notice of public records offered only for the
purpose of determining what statements the documents contain, not
to prove the truth of the documents).
II.

Provident’s motion for a protective order
“The Federal Rules of Civil Procedure strongly favor full

discovery whenever possible.” Farnsworth v. Procter & Gamble Co.,
758 F.2d 1545, 1547 (11th Cir. 1985). Therefore, “a protective
order shall issue only upon a showing of “good cause” [so that]
[t]he burden is upon the movant to show the necessity of its
5

issuance,

which

demonstration

of

contemplates
fact

as

a

particular

distinguished

from

and

specific

stereotyped

and

conclusory statements.” United States v. Garrett, 571 F.2d 1323,
1326 n.3 (5th Cir. 1978) (emphasis added); see Bonner, 661 F.2d at
1209.
Provident’s

proposed

protective

order

does

not

identify

particular or specific documents. Instead it merely identifies
categories that it thinks should remain confidential and remarkably
allows the parties in good faith to designate confidential “any
other document, information, or testimony.” (Doc. 55 at 13). While
Provident’s motion does speak about specific documents it likely
would categorize as “confidential,” such items as “Performance
Based Incentive (PBI) FAQ’s, Long Term Incentive (LTI) FAQ’s,
Compensation Program Summary, Benefits Center Recognition Awards
Brochure, and Spotlight Program description” (Doc. 55 at 3), these
documents are not identified in the protective order nor is their
relationship to one of the stated general categories identified or
explained (Doc. 55 at 12-18). While an “umbrella” protective order
may

be

appropriate

document-by-document

in
review

certain
of

“complicated

discovery

cases

materials

where

would

be

unfeasible,” Provident does not demonstrate or even try to explain
why this case warrants such an approach. In re Alexander Grant &
Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987).
At best, Provident’s reasons for the general protective order
6

are hypothetical and conclusory. For example, Provident cites the
trade secret language of Rule 26(c)(1)(G) as its basis for a
general protective order and argues it will restrict disclosure of
documents

pertaining

to

compensation,

bonus,

and

performance

criteria similar to how other courts that have restricted discovery
on those grounds. (Doc. 55 at 4-7). Yet, the trade secret provision
of Rule 26 is merely one discretionary factor for a protective
order under Rule 26, and a court is under no obligation to protect
trade secrets in every case. See Fed. R. Civ. Proc. 26 (“[t]he
court may, for good cause, issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue burden
or expense, including one or more of the following . . . a trade
secret

or

confidential

research,

development,

or

commercial

information not be revealed”) (emphasis added). Provident fails to
demonstrate how

such information is proprietary to Provident or

how its disclosure injures Provident beyond its alleged violations
of law.
Provident

argues

that

its

protective

order

is

warranted

because discovery may reveal Provident’s internal operations and
procedures

and

that

allowing

disclosure

as

“broader

during

discovery than the question of relevance and materiality is at
trial” (Doc. 55 at 7-8), would destroy the concept of protection.
However, Provident overlooks that such information is the very
object of Rosen’s RICO claims and ripe for discovery. “Conclusory

7

allegations of competitive harm from disclosure are not enough,
especially

when

the

redacted

information

is

central

to

the

resolution of the case.” Dish Network L.L.C. v. TV Net Solutions,
LLC, 2014 WL 4954683, at *2 (M.D. Fla. Oct. 2, 2014); see Pansy v.
Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994) (“[b]road
allegations

of

harm,

unsubstantiated

by

specific

examples

or

articulated reasoning, do not support a good cause showing”).
Unlike the claims in the cases cited by Provident, this case not
only involves claims against Provident for denial of insurance
benefits to Rosen, but also involves claims against Provident under
RICO, alleging Provident schemed to deny payouts to Rosen and
numerous other policyholders via

mail fraud, interference with

commerce, and racketeering. (Doc. 19 at 24-30, 40-43 and Doc. 38).
Finally, Provident asserts that a protective order is called
for to protect private and confidential information of Provident’s
insureds and claimants. (Doc. 55 at 8). Yet, Provident fails to
show why protections under the Federal Rules of Civil Procedure and
this

court’s

local

rules

are

insufficient

for

such

personal

information. See Fed. R. Civ. Proc. 5.2 and N.D. Ala. LR 5.1. Also,
Provident does not specifically identify such information nor show
that disclosure of such information “is likely to result in a
clearly defined and very serious injury to the designating party.”
Lockheed Martin Corp. v. Boeing Co., 2005 WL 5278461, at *2 (M.D.
Fla. Jan. 26, 2005).

8

Therefore, because Provident fails to demonstrate good cause
for its general protective order, its motion for a protective order
will be denied.
V.

Provident’s motion to compel production of documents
“The party resisting discovery has a heavy burden of showing

why the requested discovery should not be permitted . . . [with]
‘[t]he onus [] on the party resisting discovery to demonstrate
specifically

how

the

objected-to

information

is

unnecessary,

unreasonable or otherwise unduly burdensome.’” Henderson v. Holiday
CVS, L.L.C., 269 F.R.D. 682, 686 (S.D. Fla. 2010) (quoting Dunkin'
Donuts, Inc. v. Mary's Donuts, Inc., 2001 WL 34079319 (S.D. Fla.
2001)).
a.

Request 5

Provident’s

motion

to

compel

production

of

documents

in

request 52 is not ripe for review. Rosen asserts he has already
provided to Provident electronic Portable Document Format (“PDF”)
copies of CPT code reports from 2004 to 2007. (Doc. 60 at 2). While
Provident’s original request did not ask for the CPT reports from
January 1, 2005 to the present in electronic format, Provident’s
motion to compel now demands Rosen produce such codes in Excel
format. (Doc. 57 at 5). In Rosen’s reply, he offers to produce

2

“Any and all CPT Code records or other procedure code
records reflecting work performed by you from any hospital,
practice or clinic for which you worked from January 1, 2005, to
the present.” (Doc. 57 at 3).
9

Excel format CPT code reports from April 2007 to November 2014 “if
Provident agrees to pay the cost associated with producing those
files.” (Doc. 60 at 3). In Provident’s response, it indicates it
has agreed “to pay the reported additional, reasonable costs of a
second production of the electronic CPT codes.” (Doc. 61 at 3).
Given this apparent miraculous bit of cooperation between the
parties, the court need not compel production of Excel format CPT
code reports from April 2007 to November 2014, and Provident’s
motion to compel is no longer ripe for review.
Insofar as any dispute may continue to exist between the
parties as to Rosen producing in Excel format CPT codes prior to
April 2007, Provident’s motion to compel will be denied because
Rosen has produced such codes in electronic PDF format and further
production in another electronic Excel format is unnecessarily
duplicative, and the burden or expense of the proposed discovery
outweighs its likely benefit. Fed. R. Civ. Proc. 26(b)(d)(C). The
federal rules specifically provide that “[i]f a request does not
specify a form for producing electronically stored information, a
party must produce it in a form or forms in which it is ordinarily
maintained or in a reasonably usable form or forms [and] [a] party
need not produce the same electronically stored information in more
than one form.” Fed. R. Civ. Proc. 34(b)(2)(E)(ii)-(iii) (emphasis
added). Additionally, Provident mentions in a footnote it seeks to
compel production of electronic CPT codes from November 2014 up

10

through

the

present.

(Doc.

61

at

3).

However,

nowhere

does

Provident demonstrate it has requested such supplementary documents
from Rosen or that Rosen has refused to produce such supplementary
documents.
Therefore, apart from the parts of the motion no longer ripe
for review given this recent burst of apparent cooperation by the
parties, for any dispute that continues to remain as to request 5,
the motion will be denied.
b.

Request 24

The materials Provident seeks under request 243 fall within
the protection of the work product doctrine and therefore are not
discoverable, being outside the boundaries of Rule 26. “Not even
the most liberal of discovery theories can justify unwarranted
inquiries

into

the

files

and

the

mental

impressions

of

an

attorney.” Hickman, 329 U.S. at 510. “[T]he general policy against
invading the privacy of an attorney's course of preparation is so
well recognized and so essential to an orderly working of our
system of legal procedure that a burden rests on the one who would
invade that privacy to establish adequate reasons to justify
production through a subpoena or court order.” Id. at 512. Here,
Provident makes no attempt to establish any particular reason why

3

“Any and all documents obtained or received from third
parties or sent to third parties by you or on your behalf,
concerning or relating in any way to your allegations in the
First Amended Complaint or to Provident Life and Accident
Insurance Company.” (Doc. 57 at 6).
11

Rosen should be compelled to produce these materials. See Fed. R.
Civ. Proc. 26(3)(A). Rather, Provident argues that since the
documents are those “received from third parties,” they are outside
the scope of the work product doctrine. (Doc. 61 at 5); cf.
Hunter's Ridge Golf Co. v. Georgia-Pac. Corp., 233 F.R.D. 678, 681
(M.D. Fla. 2006) (“the work product doctrine does not shield from
discovery documents created by third-parties”). However, even for
documents created by third-parties, the work product doctrine
protects such materials where there is a showing of “a real, rather
than speculative, concern that the thought processes of counsel in
relation to pending or anticipated litigation would be exposed.”
Hunter's Ridge Golf Co., 233 F.R.D. at 681 (quoting Gould Inc. v.
Mitsui Mining & Smelting Co., Ltd., 825 F.2d 676, 680 (2nd Cir.
1987)). Provident’s broad and unfocused request asking for all
documents

that

“concern[]

or

relat[e]

in

any

way

to

your

allegations in the First Amended Complaint or to Provident” is a
overly

bold

attempt

to

discover

all

Rosen’s

materials

in

preparation of this case.
Furthermore, this inclusion of certain third-party documents
under the work product doctrine is particularly warranted “where a
request is made for documents already in the possession of the
requesting party, with the precise goal of learning what the
opposing attorney's thinking or strategy may be.” Hunter's Ridge
Golf Co., 233 F.R.D. at 681 (citing Gould Inc. v. Mitsui Mining &

12

Smelting Co., Ltd., 825 F.2d 676 (2nd Cir. 1987) and Sporck v.
Peil, 759 F.2d 312, 316 (3rd Cir. 1985)). Some of the very thirdparty materials Provident now seeks to discover under this request
are Provident’s own business records, which Provident itself has
not produced yet, and that have been identified and obtained only
by the diligence and investigation of Rosen’s counsel. (Doc. 60 at
6). Therefore, the work product doctrine protects such materials
from discovery by Provident.
While such materials are protected, under the federal rules
Rosen must still provide Provident a privilege log. See Fed. R.
Civ. Proc. 26(b)(5). However, the federal rules merely require a
party to “do so in a manner that, without revealing information
itself privileged or protected, will enable other parties to assess
the claim.” Fed. R. Civ. Proc. 26(b)(5)(A)(ii). Therefore, “in
appropriate circumstances, the court may permit the holder of
withheld

documents

to

provide

summaries

of

the

documents

by

category or otherwise to limit the extent of his disclosure.”
S.E.C. v. Thrasher, 1996 WL 125661, at *1 (S.D.N.Y. Mar. 20, 1996).
In this case, Rosen need only describe the nature of the materials
withheld by category.
Therefore, Provident’s motion to compel will be denied.
IV. Rosen’s renewed motion to compel production of documents and
supplement to his renewed motion to compel
“The party resisting production of information bears the
burden of

establishing

lack

of
13

relevancy

or

undue

burden

in

supplying the requested information.” Gober v. City of Leesburg,
197 F.R.D. 519, 521 (M.D. Fla. 2000); see Panola Land Buyers Ass'n,
762 F.2d at 1558-59. “An objection must show specifically how a
[discovery request] is overly broad, burdensome or oppressive, by
submitting evidence or offering evidence which reveals the nature
of the burden.” Coker v. Duke & Co., 177 F.R.D. 682, 686 (M.D. Ala.
1998) (citation omitted); see
Fed.

R.

Civ.

admissible

at

Proc.
the

26

trial

(“[r]elevant
if

the

information

discovery

need

appears

not

be

reasonably

calculated to lead to the discovery of admissible evidence”).
a.

Request 7

Provident

fails

to

show

why

request

74

should

not

be

discoverable. While Provident questions the direct relevance of
promotional literature and pamphlets in light of Rosen’s testimony
that he did not “receive any brochures or other materials” (Doc.
47-1 at 4), Provident fails to show how such information is not
“reasonably calculated to lead to the discovery of admissible
evidence.” Fed. R. Civ. Proc. 26(b). For Rosen’s fraud, bad faith,
and

breach

of

contract

claims,

not

only

do

these

documents

indirectly relate to Provident’s marketing and promotion of the
policies it sold to Rosen, but further, Provident makes no argument
that these materials were not received by Rosen’s insurance broker

4

“All promotional literature and sales pamphlets explaining
the type of policy that was sold to Plaintiff.” (Doc. 44 at 3-4).
14

who was involved in procuring the policies at issue here. (Doc. 19
at

3

and

Doc.

32-2).

Additionally,

these

documents

also

are

relevant to Rosen’s RICO claims, which allege Provident marketed
and promoted such policies as part of its racketeering scheme.
(Doc. 19 at 3). Therefore, pursuant to Rule 26 these materials are
relevant and must be produced.
b.

Request 9

Provident fails to show why request 95 should not be granted.
While Provident complains of the breadth of the request (Doc. 47 at
10), Rosen has agreed to limit the request as to the time period
from 2003 to the present (Doc. 50 at 10). Given Rosen’s RICO claims
alleging an extensive pattern of racketeering activity in the
handling of disability claims (Doc. 19 at 24-30, 40-43), limiting
this discovery request beyond the time period agreed to would be
improvident. Furthermore, while Provident generally argues such a
broad request is unreasonable, its argument is conclusory and fails
specifically to show why responding to such a request is not
feasible. “The recitation of expense and burdensomeness are merely
conclusory.” Panola Land Buyers Ass'n, 762 F.2d at 1559. Therefore,
pursuant to Rule 26 the request is not overboard and the materials
must be produced.

5

“All claims manuals, procedural manuals, operational
manuals, or other documents of whatever kind which direct or
instruct employees concerning the handling of disability claims.”
(Doc. 44 at 4).
15

c.

Request 12

Provident fails to show why the items in request 126 should
not be discoverable. While Provident complains of the breadth of
the request (Doc. 47 at 12-14), Rosen has agreed to revise the
request to require Provident to produce the names of every person
who purchased a series 300 individual disability policy from Brian
Askelson, the Provident agent who sold Rosen his policies, between
1988 and the time such policies were no longer sold in the mid
1990s (Doc. 50 at 11). This revised request is reasonable and
tailored to the particular circumstances of Rosen’s case, mirroring
the approach both Provident and Rosen cite in their briefing in Ex
parte Henry, 770 So. 2d 76, 80-81 (Ala. 2000). (Doc. 47 at 13 and
Doc. 50 at 11). Therefore, the revised request is consistent with
Rule 26 and such materials under request 12 must be produced.
d.

Request 13

Provident fails to show why request 137 should not be granted.
Again, while Provident complains of the breadth of the request
(Doc. 47 at 14-15), Rosen has agreed to revise the request limiting
production to the time period between 2003 and the present (Doc. 50

6

“Any complaints filed against this Defendant concerning
policies like that issues to the Plaintiff, or similar thereto,
with any State Insurance Department or other entities during the
last five (5) years.” (Doc. 44 at 6).
7

“Any and all documents of whatever type filed with the
Alabama Insurance Department relating to the type of insurance
policy sold to Plaintiff.” (Doc. 44 at 8).
16

at 11). Given Rosen’s fraud, bad faith, and RICO claims alleging an
extensive pattern of racketeering activity in the handling of
disability

claims

(Doc.

19

at

24-30,

40-43),

limiting

this

discovery request beyond the said time limit would be unduly
restrictive. Further, although Provident argues the request for
documents

“relating

to

the

type

of

insurance

policy

sold

to

[Rosen]” is too vague (Doc. 47 at 14), given that Provident itself
sold Rosen the said insurance policy, the request is clear on its
face. Therefore, the revised request is within the boundaries of
Rule 26 and such materials must be produced.
e.

Request 14

Provident fails to show why request 148 should not be granted.
Although

Provident

argues

Rosen’s

request

is

internally

contradictory (Doc. 47 at 15), on its face the request consistently
seeks documents relating to actions by the insurance department or
attorney general of a state, including correspondence within the
last five years between Provident and said insurance departments of
such states (Doc. 44 at 9). Instead, Provident’s own response is
contradictory; despite Provident’s assertion that Rosen’s request

8

“Documents evidencing or relating to any reprimands,
actions or complaints, or disciplinary actions taken against this
Defendant by the Insurance Department or Attorney General of any
state in the United States of America including Alabama. Our
response should include all correspondence between this Defendant
and the Insurance Department for the State concerning any
complaints, lawsuits or claims made by a policyholder, insured or
assignee within the last five years.” (Doc. 44 at 9).
17

14 is so vague and broad as to render impossible a response,
Provident itself states that “there have been no such actions by
the Alabama Department of Insurance or the Alabama Attorney General
within the five years.” (Doc. 47 at 16).
Further, while Provident objects to the lack of a geographic
limitation to the request (Doc. 47 at 16), it overlooks that
Rosen’s

request

is

limited

to

the

fifty

states

and,

more

importantly, is appropriate in breadth given that Rosen’s claims
under RICO allege an extensive multi-state pattern of racketeering
activity in the handling of disability claims (Doc. 19 at 24-30,
40-43). Therefore, the request is within the boundaries of Rule 26
and such materials must be produced by Provident.
f.

Request 15

Provident fails to show why request 159 should not be granted.
Provident has already provided Rosen with a list of all lawsuits in
Alabama

pursuant

geographic

scope

to

this

extending

request.
beyond

Provident
Alabama.

objects

(Doc.

47

to
at

the
17).

Specifically, Provident points to where “the Alabama courts that
have considered this issue have consistently limited the geographic
scope of production required for lawsuit information to the State
of Alabama.” (Doc. 47 at 17). However, while Rosen raises certain

9

“A copy of all lawsuits filed against this Defendant which
involves allegations of fraud, bad faith, racketeering or other
wrongdoing arising under the disability policies for the last
five (5) years.” (Doc. 44 at 10).
18

state law claims similar to these cases, Rosen also raises federal
claims under RICO alleging an extensive multi-state pattern of
racketeering activity in the handling of disability claims (Doc. 19
at 24-30, 40-43). Therefore, the scope of Rosen’s request is within
the boundaries of Rule 26 and such materials must be produced.
g.

Request 17

Provident fails to show why request 1710 should not be granted.
Again, while Provident objects to the geographic scope of the
request

beyond

Alabama

(Doc.

47

at

18-19),

the

request

is

reasonable and not otherwise unduly burdensome considering Rosen’s
claims under RICO alleging an extensive multi-state pattern of
racketeering activity in the handling of disability claims (Doc. 19
at 24-30, 40-43). Further, although “complaint” may conceivably
include a phone call or letter by an insured (Doc. 47 at 18), it is
not unreasonably vague and therefore capable of discovery. Because
the request is within the boundaries of Rule 26, such materials
must be produced.
h.

Request 19

10

“Produce all documents and records which reflect, refer
and/or relate to the names, last known addresses and telephone
numbers of each person who has filed a complaint with any State
Department of Insurance during the last five (5) years concerning
fraud, deceit, deceptive trade practices, suppression, conspiracy
to defraud, or any other type of unethical conduct by Provident
Life & Accident Insurance Company or any of its current or former
brokers and/or agents concerning disability income insurance
policies.” (Doc. 44 at 11).
19

Provident

fails

to

show

why

1911

request

should

not

be

discoverable. First, Provident’s objection that “claims examiner”
is vague (Doc. 47 at 20) is no longer ripe for review given that
Rosen has agreed to revise the request to a specific list12 of
individuals. (Doc. 50 at 12).
Further, Provident asserts that while it is willing to produce
documents about its incentive compensation and bonus plans in
general, the public policy interest against disclosure and the
privacy interest employees have in their personnel files outweighs
the

value

of

producing

such

information

specific

to

certain

employees. (Doc. 47 at 21-22); see Whittingham v. Amherst Coll.,
164 F.R.D. 124, 127 (D. Mass. 1995) (finding discovery of employee
personnel files should be limited given employee privacy interests)
and Bishelli v. State Farm Mut. Auto. Ins. Co., 2008 WL 280850, at
*4 (D. Colo. Jan. 31, 2008) (finding against production of an
employee’s

personnel

file

except

where

it

actually

contains

information that the adjuster engaged in bad faith conduct). While

11

“Produce the personnel file(s) for all the claims
examiners that have worked on Dr. Rosen’s claim made the basis of
this litigation since 2011. This should include but not be
limited to documents detailing their compensation and/or bonus
plans.” (Doc. 44 at 12).
12

“Susan M. Watkins; Patricia Clermont, RN; Andrea L.
Coraccio, M.Ed., CRC; Katie Heselton; Amy S. Holland; Kelley A.
Feeley; Jacqueline Germain, M.D.; Christina P. Lubin; Marc A.
Champoux; Lisa Ann Francoise-Fields, CPA; Matthew J. Cartier;
Mark Doyle, Jean-Marie Merritt, MA; CRC, Monika Raci; Kathleen
Hancock, RN, BSN; Judith L. Cohen; Tammy L. Kasper; and Brian C.
Joslyn.” (Doc. 50 at 13).
20

these interests certainly require close consideration by this
court,

they

are

not

dispositive.

Rather,

Rosen’s

request

is

relevant to his bad faith, fraud, and RICO claims alleging an
extensive pattern of racketeering activity in the handling of
disability claims, particularly in the way Provident compensated
and incentivized its employees. (Doc. 19 at 23-30, 40-43); see
Whittingham, 164 F.R.D. at 127-28 (noting that in the civil rights
context

personnel

establishing

a

files
pattern

are

discoverable

or

practice

where
of

relevant

to

discrimination).

Additionally, Provident fails to demonstrate how existing privacy
safeguards under the Federal Rules of Civil Procedure and this
court’s local rules are inadequate. See Fed. R. Civ. Proc. 5.2 and
N.D. Ala. LR 5.1.
Therefore, the request is within the boundaries of Rule 26 and
such materials must be produced.
i.

Requests 22 & 23

Provident fails to show why the items in requests 22 and 2313
should not be discoverable. Despite Provident’s assertion that such
materials

are

confidential,

private,

and

that

there

is

no

justification for invading that privacy (Doc. 47 at 24), the
request is relevant and reasonably calculated to lead to the
discovery of evidence relevant to Rosen’s bad faith, fraud, and

13

“Produce the CPT code analysis and ERISA related
documents contained in the claims file for Wiley H. Justice,
M.D., policy #7066319.” (Doc. 44 at 13).
21

RICO

claims

alleging

an

extensive

multi-state

pattern

of

racketeering activity in the handling of disability claims (Doc. 19
at 24-30, 40-43).
Also,

Rosen’s

Provident’s

claims

request
file

for
for

“ERISA
Dr.

related

Justice

is

documents”
relevant

in
and

discoverable given Rosen’s bad faith, fraud, and RICO claims
alleging Provident used ERISA preemption in claims involving “own
occupation” policies to deny benefits and engage in racketeering
activity (Doc. 19 at 18-19 and Doc. 50 at 14). While ERISA related
documents” in Dr. Justice’s claim file are relevant given they
involve the same the 337 “own occupation” policy at issue here,
Rosen notes that Provident appears to be saying that there were no
ERISA related documents in the claims file for Justice. (Doc. 50 at
14). Specifically, Provident claims that it “did not assert an
ERISA affirmative defense in the Justice case nor was the Justice
claim handled as an ERISA claim.” (Doc. 47 at 26). If correct, this
largely moots the issue, yet insofar as such materials do exist or
have existed, Provident will be compelled to produce such materials
under

this

request

given

that

the

request

falls

within

the

boundaries of Rule 26.
j.

Requests 29 and 30

Provident fails to show why requests 2914 and 3015 should not

14

“Produce all guidelines, policies, directives, or
instructions, howsoever denominated, that were in affect and
applicable when the list bill mechanism was instituted at
22

be granted. This court denied Provident’s motion for partial
summary judgment on ERISA preemption (Doc. 38, Doc. 39, and Doc.
40). These requests are material and relevant to Rosen’s nonpreempted bad faith, fraud claims and his RICO claim alleging
Provident

engaged

in

a

pattern

and

practice

of

using

salary

allotment agreements and list bills to use ERISA preemption in its
racketeering activity in the handling of disability claims. (Doc.
19 at 18-19). Indeed, as this court has already noted, Rosen
alleges that “Provident realized that if any of its disability
insurance policies could be shoe-horned into the ERISA mold, a
great deal of money could be saved.” (Doc. 40 at 2). Therefore, the
request is within the boundaries of Rule 26 and such materials must
be produced by Provident.
For the above mentioned reasons, Rosen’s renewed motion to
compel and supplement to his renewed motion to compel will be
granted.
V.

Rosen’s renewed motion to compel deposition testimony
Under Rule 30, when directing a deposition notice to an

organization, “[i]n its notice or subpoena, a party may name as the

Northeast Alabama Urology Center, P.C.”(Doc. 44 at 14-15).
15

“To the extent that the Defendant relies upon any salary
allotment agreement, in whole or in part, to establish the
existence of an employee benefit plan of which Plaintiff’s
insurance policies are part, produce all such agreements,
guidelines, policies directives or instructions, howsoever
denominated, applicable to the creation or use of such salary
allotment agreements.” (Doc. 44 at 8).
23

deponent a public or private corporation . . . and must describe
with reasonable particularity the matters for examination . . .
[and] [t]he named organization must then designate one or more
officers, directors, or managing agents, or designate other persons
who consent to testify on its behalf; and it may set out the
matters on which each person designated will testify” Fed. R. Civ.
Proc. 30. “Normally the process [associated with depositions under
Rule 30(b)(6) ] operates extrajudicially.” New World Network Ltd.
v. M/V NORWEGIAN SEA, No. 05-22916 CIV, 2007 WL 1068124, at *2
(S.D. Fla.

Apr.

6,

2007)

(quoting

McKesson

Corp.

v.

Islamic

Republic of Iran, 185 F.R.D. 70, 79 (D.D.C.1999). “Good cause
exists to intervene only when there has been a compelling and
sufficient demonstration that the procedures specified in the Rule
have not been or cannot be followed.” Id.
As an initial matter, Provident claims Rosen’s motion to
compel is premature because it has not been served a formal
30(b)(6) deposition notice. (Doc. 48 at 5). See e.g., Haaf v.
Flagler Const. Equip., LLC, 2011 WL 1871159, at *4 (S.D. Fla. May
16, 2011) (“[because] these general deposition topics have as yet
only been identified in an informal email and not in a notice of
deposition as contemplated by Federal Rule of Civil Procedure
30(b)(6) [t]he result is that Plaintiff in effect asks for an
impermissible advisory opinion”).
In this case it appears that at the time Rosen filed his

24

motion, despite his continued efforts, Provident had yet to follow
up on proposed deposition dates. (Doc. 45-2). While generally the
process

begins

with

a

formal

deposition

notice,

Provident’s

communication delays respecting deposition dates and designations
should not for technical inadequacies prejudice Rosen’s efforts to
depose pursuant to Rule 30(b)(6). Rule 26(g)(1) (outlining a
party’s duty during discovery requests, responses, and objections
to not “not interpose[] for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of
litigation”). Furthermore, Rosen has since sent a formal 30(b)(6)
discovery

notice

to

Provident,

which

included

the

disputed

deposition topics. (Doc. 51-1). Therefore, being ripe for review,
the court reviews Provident’s specific objections to the deposition
topics below.
a. Topic 2
Consistent with the federal rules, Rosen’s deposition topic 216
is relevant and describes with reasonable particularity the matter
for examination. Fed. R. Civ. Proc. 26(b) and 30(b)(6). While
Provident concedes that it has produced the Operations Management
and Reporting (“OMAR”) system report as it relates to Rosen’s own
disability

insurance

claim,

Provident

16

objects

to

producing

“Operations Management and Reporting (‘OMAR’) system and
monthly reports generated (weekly and monthly) for Individual
Disability claims processed by the Worcester Benefit Center.”
(Doc. 45 at 3).
25

a

witness to

testify

on

the

entire

OMAR

system

for

individual

disability claims processed by the Worcester Benefit Center. (Doc.
48 at 8). Although Provident bemoans the burden of producing a
witness to testify on the entire system, which it claims would take
months to complete and require review of millions of pages of paper
on tens of thousands of open claims (Doc. 48 at 8-9), the scope of
such testimony is reasonable, particularly in light of Rosen’s RICO
claims alleging a pattern and practice of managing the block of
disability policies to avoid coverage and increase profits (Doc. 45
at 3 and Doc. 51-4). Additionally, Provident’s claim that the topic
is irrelevant because “Disability Benefits Specialists do not have
access to the OMAR system” (Doc. 48 at 9-10) ignores the relevance
of the OMAR system to Rosen’s RICO claims. Rosen also clarifies
that producing a witness on this topic would not require reviewing
individual data on thousands of claims (Doc. 51 at 3), nor would
personal data or medical information of claimants need to be
divulged (Doc. 51 at 3). Therefore, for purposes of discovery,
topic

2

is

sufficiently

relevant

and

stated

with

reasonable

particularity. See Fed. R. Civ. Proc. 26 and 30.
b. Topics 3 & 4
Consistent with the federal rules, Rosen’s deposition topics
217 and 318 are relevant and describe with reasonable particularity

17

“Employee Bonus Compensation plans for employees working
on Individual Disability claims including performance based
incentives, how bonus criteria are established and what criteria
26

the matters for examination. Fed. R. Civ. Proc. 26(b) and 30(b)(6).
While Provident has produced its Management Incentive Compensation
Plan of 2008 and Stock Incentive Plan of 2007 (Doc. 48 at 10-11),
disclosing only these compensation documents is insufficient under
these topics, particularly given Rosen’s RICO claims. Provident
additionally

maintains

that

the

topics

are

overbroad

because

employee bonuses and incentives were not based on the number of
claims reviewed, approved, or denied and Provident bases this
conclusion on certain documents it refuses to disclose until Rosen
agrees to Provident’s protective order. (Doc. 48 at 10-12). Beyond
the fact that the logical nexus between Provident’s overbreadth
objection and the protective order is attenuated at best, as the
court explains above, Provident’s protective order will be denied.
Therefore, for purposes of discovery topics 3 and 4 are within the
acceptable boundaries of discovery. See Fed. R. Civ. Proc. 30.
c. Topics 5 and 6
Consistent with the federal rules, Rosen’s deposition topics
519 and 620 are relevant and describe with reasonable particularity
are used to award bonuses on the individual level and the
department level.” (Doc. 45 at 4).
18

“Executive Bonus Compensation plans including
performance-based incentives, how bonus criteria are established
and what criteria are used to award bonuses to each executive.”
(Doc. 45 at 4).
19

“Organization and procedural changes that were created
and implemented as a result of the Targeted Multistate Market
Conduct Examination December 31, 2002 “Initial Review” and
February 29, 2004 “Follow-Up Review” for processing individual
27

the matters for examination. Fed. R. Civ. Proc. 26(b) and 30(b)(6).
While Provident asserts that it does not know what is meant by
“organizational and procedural changes” or “as a result of” (Doc.
48 at 13), Rosen attaches as an exhibit the actual report mentioned
in the topics, thereby demonstrating the clear and precise meaning
and scope of such changes (Doc. 51-5). Therefore, for purposes of
discovery topics 5 and 6 are within the acceptable boundaries of
discovery. See Fed. R. Civ. Proc. 30.
d. Topic 7
Consistent with the federal rules, Rosen’s deposition topic 721
describes with reasonable particularity the matter for examination.
Fed. R. Civ. Proc. 26(b) and 30(b)(6). While Provident designates
a witness for the topic as it relates to Rosen and denials of his
claim,

Provident

objects

as

overly-broad

CPT

code

analytical

practices in effect from 2000 to the present. (Doc. 48 at 15).

disability (‘IDI’) policy claims.” (Doc. 45 at 5).
20

“Training that was implemented as a result of the
Targeted Multistate Market Conduct Examination December 31, 2002
“Initial Review” and February 29, 2004 “Follow-Up Review” for
processing ‘IDI’ policy claims.” (Doc. 45 at 6).
21

that:
•
•
•
•

“Analysis of CPT codes for IDI claims, including those
resulted in Dr. Rosen’s claim being paid under Residual
Disability rather than Total Disability;
CPT code analysis of Dr. Ellis’ policies
(policy#00545997, 00701856, 00410675);
CPT code analysis of Dr. Justice’s policy (policy
#007066319);
CPT code analytical practices in effect from 2000 to
the present.” (Doc. 45 at 7).
28

However, in light of Rosen’s RICO claims alleging a racketeering
scheme

to

reasonably

deny

paying

limited

particularity.

benefits,

in

(Doc.

time

51

at

the

and

5-6).

topic,
stated

Therefore,

while

broad,

with

sufficient

for

purposes

is

of

discovery topics 5 and 6 are within the acceptable boundaries of
discovery. See Fed. R. Civ. Proc. 30.
e. Topic 8
Consistent with the federal rules, Rosen’s deposition topic 822
is relevant and describes with reasonable particularity the matter
for examination. Fed. R. Civ. Proc. 26(b) and 30(b)(6). While
Provident asserts it does not know what is meant by “monitoring” or
“evaluating” in Rosen’s deposition topic (Doc. 48 at 17), Rosen
points to and attaches a 2013 Proxy Statement written by Provident
itself to its shareholders using the same terms it now claims are
unclear. (Doc. 51-2 at 26). Further, although the topic dates back
to 2008, three years before Rosen filed his disability claim (Doc.
48 at 17), the topic relates to Rosen’s RICO claims and is
reasonably calculated to discovering a pattern and practice of
managing the block of disability policies to avoid coverage and
increase profits
discovery

topic

(Doc.
8

is

45

at

8).

sufficiently

Therefore,

for

purposes

relevant

and

stated

of

with

reasonable particularity. See Fed. R. Civ. Proc. 26 and 30.

22

“Monitoring, evaluating and making recommendations to the
Board regarding matters pertaining to the Individual Disability
Closed Block segment from 2008 to present.” (Doc. 45 at 8).
29

f. Topic 9
Consistent with the federal rules, Rosen’s deposition topic 923
is relevant and describes with reasonable particularity the matter
for examination. Fed. R. Civ. Proc. 26(b) and 30(b)(6). While
Provident asserts it has “[n]o idea what Topic 9 seeks.” (Doc. 48
at 18), Rosen attaches two internal memoranda from Provident and
its 2012 annual report discussing the relationship between claims
processing and Provident’s accounting system (Doc. 51-3, 51-4, and
51-6). Further, even though the topic spans over twenty years (Doc.
48 at 18), the time period is reasonable given Rosen’s fraud, bad
faith, and RICO claims alleging Provident’s pattern and practice of
managing the block of disability policies to avoid coverage and
increase profits
discovery

topic

(Doc.
9

is

45

at

9).

sufficiently

Therefore,

for

purposes

relevant

and

stated

of

with

reasonable particularity. See Fed. R. Civ. Proc. 26 and 30.
g. Topic 10
Consistent with the federal rules, Rosen’s revised deposition
topic 1024 is relevant and describes with reasonable particularity

23

“Accounting for the Deferred Acquisition Costs (DAC) and
Reserve Charges for the Individual Disability Closed Block
segment from inception of the Individual Disability closed block
to the present.” (Doc. 45 at 8-9).
24

“Complaints and lawsuits within the last ten (10) years
that relate to individual disability policies.--The Plaintiff has
revised the document request to complaints and lawsuits within th
last five (5) years and deposition topic is revised to five (5)
years as well.” (Doc. 45 at 4).
30

the matter for examination. Fed. R. Civ. Proc. 26(b) and 30(b)(6).
Consistent with his cooperative discovery obligations under the
federal rules, Rosen revises this request to only complaints and
lawsuits within the last five years that relate to 337 policies
from policyholders in Alabama, Georgia, Florida, and Tennessee.
(Doc. 51 at 9). Provident has not responded or objected to this
revised topic. Additionally, given Rosen’s fraud, bad faith, and
RICO claims, the topic is sufficiently relevant to a pattern or
practice of denying valid claims despite complaints and lawsuits
filed against Provident. (Doc. 45 at 10). Therefore, for purposes
of discovery revised topic 10 is within the acceptable boundaries
of discovery. See Fed. R. Civ. Proc. 30.
h. Topic 11
Consistent with the federal rules, Rosen’s deposition topic
1125 is relevant and describes with reasonable particularity the
matter for examination. Fed. R. Civ. Proc. 26(b) and 30(b)(6).
Provident

asserts

that

the

topic

seeks

testimony

on

a

legal

question (Doc. 48 at 20), however, while “welfare benefit plan” is
a legal term of art relating to ERISA, Rosen’s deposition topic
focuses on Provident’s “use” of salary allotment agreements as part
of its alleged strategy to invoke ERISA preemption to deny claim
benefits. Rosen’s deposition topic does not extend to the legal

25

“The use of salary allotment agreements in establishing
that Individual Disability policies are part of a welfare benefit
plan.” (Doc. 45 at 10).
31

meaning or scope of “welfare benefit plan,” but instead focuses on
discovering certain testimony and facts surrounding Provident’s
organizational activities. Therefore, for purposes of discovery
revised topic 11 is within the acceptable boundaries of discovery.
See Fed. R. Civ. Proc. 30.
Therefore, for the above mentioned reasons, Rosen’s renewed
motion to compel deposition testimony will be granted.
VI.

Sanctions
On February 20, 2015, the court entered a scheduling order

advising the parties that “[m]otions to compel in discovery matters
should, after attempts at resolution have failed, be filed promptly
so as to avoid delays in preparations.” (Doc. 43 at 2). Because of
Provident’s continued and facially unjustified lack of expedition
and cooperation in the discovery process, which has no doubt has
led to numerous delays in preparation, the court entertains the
propriety of sanctions under Rule 37 and Rule 11.
a.

Rule 37 sanctions

Pursuant to Rule 37, where a motion to compel is granted, “the
court must, after giving an opportunity to be heard, require the
party or deponent whose conduct necessitated the motion . . . to
pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees. Fed. R. Civ. Proc. 37(a)(5) (emphasis
added). In light of the fact that Rosen’s renewed motion to compel
(Doc. 50), supplement to his renewed motion to compel (Doc. 59),

32

and renewed motion to compel deposition testimony (Doc. 45) will be
granted and Provident’s motion to compel (Doc. 57) will be denied,
Provident will be required to show cause why it is not obligated to
pay Rosen’s reasonable expenses incurred in making the motion,
including attorney’s fees.
b.

Rule 11 sanctions

Pursuant to Rule 11, a court may sua sponte order a party to
show cause why its conduct has not violated Rule 11(b), which
states

in

part

that

“the

claims,

defenses,

and

other

legal

contentions are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law or for
establishing new law . . . the factual contentions have evidentiary
support

.

.

.

[and]

the

denials

of

factual

contentions

are

warranted on the evidence.” Fed. R. Civ. Proc. 37(b)-(c) (emphasis
added).
On January 21, 2015 this court entered a memorandum opinion
and order denying Provident’s motion for partial summary judgment
based on alleged ERISA preemption, and Provident’s motion to
dismiss under Rule 12(c) based on Rosen’s RICO claims. (Doc. 38 and
39). However, despite this court’s clear ruling, Provident has
repeatedly ignored and defied this court by refusing to take the
court seriously and making voluminous filings precluded by the
earlier rulings that ERISA does not preempt Rosen’s state law
claims and that Rule 12(b)(6) does not bar Rosen’s RICO claims.
33

(Doc. 47 at 8, 11, 14, 15, 16-17, 18, 19-20, 23 and Doc. 48 at 8,
10, 11, 12, 13, 15, 16, 17, 18-19, 20).
CONCLUSION
For the reasons detailed above, the court by separate order
will deny Provident’s motion to strike (Doc. 52), its motion for a
protective order (Doc. 55), and its motion to compel (Doc. 57), and
will grant Rosen’s renewed motion to compel (Doc. 44), supplement
to his renewed motion to compel (Doc. 59), and renewed motion to
compel deposition testimony (Doc. 45). Additionally, Provident will
be required to show cause as to why sanctions are not appropriate
under Rule 37 and Rule 11.
DONE this 10th day of July, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

34