Julie Gray v. UNUM Life Insurance Company of America et al

Filing 47

MINUTES (IN CHAMBERS) by Magistrate Judge Kenly Kiya Kato: granting in part and denying in part 40 Motion to Compel (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
EDCV 17-1778-JGB-KKx

Case No.

Date: September 21, 2018

Title: Julie Gray v. UNUM Life Insurance Company of America, et al.

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
DEB TAYLOR

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

(In Chambers) Order GRANTING IN PART and DENYING IN PART
Plaintiff’s Motion to Compel [Dkt. 40]

On August 22, 2018, Julie Gray (“Plaintiff”) filed a Motion to Compel Unum Life Insurance
Company of America (“Defendant Unum”) to provide further responses to (1) Requests for
Production, Nos. 2-5, and (2) Notice of Deposition under Federal Rule of Civil Procedure 30(b)(6)
(“Rule 30(b)(6)”), Subjects 1-5, 8-12, 14, 15, and 17. ECF Docket No. (“Dkt.”) 40.
For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART
Plaintiff’s Motion to Compel.
I.
RELEVANT BACKGROUND
This Employee Retirement Income Security Act (“ERISA”) action arises out of the alleged
wrongful termination of Plaintiff’s long term disability benefits on or about September 28, 2016.
Dkt. 1 at 4. Plaintiff initiated this action by filing a Complaint against defendants Unum Life
Insurance Company of America and the Boy Scouts of America Long Term Disability Plan
(collectively, “Defendants”). In her remaining claim, Plaintiff seeks relief from Defendants for long
term disability plan benefits, enforcement and clarification of rights, pre-judgment and postjudgment interest, and attorneys’ fees. Id. at 6. Plaintiff asserts she is “informed and believes and
thereon alleges that Defendants wrongfully denied her disability benefits under the [Long Term
Disability] Plan by other acts or omissions”. Id. at 5. Plaintiff contends that through informal
investigation, she “has ascertained that Unum has a business practice of forecasting and targeting
[disability] claims for potential ‘recoveries,’ i.e., terminations.” Dkt. 40 at 6. As such, Plaintiff
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alleges “factors unrelated to the merits of her [long term disability] claim motivated the claim
decision [to terminate her disability benefits].” Id. at 8.
On January 12, 2018, Defendants filed an Answer. Dkt. 25.
On January 16, 2018, the Court issued a Civil Trial Scheduling Order setting a discovery cutoff of June 11, 2018, a dispositive motion hearing cut-off of August 20, 2018, and a bench trial for
October 16, 2018. Dkt. 33.
On August 1, 2018, the parties filed a stipulation to continue pre-trial and trial dates. Dkt.
38. On August 2, 2018, the Court granted the parties’ stipulation and set a discovery cut-off of
October 13, 2018 and a bench trial for January 14, 2019. Dkt. 39.
On August 22, 2018, Plaintiff filed the instant Motion to Compel with Joint Stipulation
pursuant to Local Rule 37-2 seeking to compel Defendant Unum to provide further responses to (1)
Requests for Production, Nos. 2-5, and (2) Notice of Deposition under Rule 30(b)(6), Subjects 1-5,
8-12, 14, 15, and 17. Dkt. 40. On September 6, 2018, Plaintiff filed a Supplemental Brief in support
of the Motion. Dkt. 41. The Motion thus stands submitted.
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 26(b) provides that parties may obtain discovery regarding:
any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery outweighs its
likely benefit.
Fed. R. Civ. P. 26(b)(1). Relevant information “need not be admissible in evidence to be
discoverable.” Id. A court “must limit the frequency or extent of discovery otherwise allowed” if
“(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some
other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking
discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the
proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).
“[G]eneral or boilerplate objections such as ‘overly burdensome and harassing’ are improper
– especially when a party fails to submit any evidentiary declarations supporting such objections.”
A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006) (faulting defendant for
making “boilerplate objections to almost every single request for production, including broad
relevancy objections, objections of ‘overly burdensome and harassing,’ ‘assumes facts not in
evidence,’ privacy, and attorney-client privilege/work product protection”).
“A party seeking discovery may move for an order compelling an answer, . . . production, or
inspection.” Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). “[A]n evasive or incomplete disclosure, answer, or
response must be treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4).
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“The party moving to compel bears the burden of demonstrating why the information
sought is relevant and why the responding party’s objections lack merit.” Bluestone Innovations
LLC v. LG Elecs. Inc., No. C-13-01770 SI (EDL), 2013 WL 6354419, at *2 (N.D. Cal. Dec. 5,
2013). In addition, “[r]elevancy alone is no longer sufficient to obtain discovery, the discovery
requested must also be proportional to the needs of the case.” Centeno v. City of Fresno, No. 1:16CV-653 DAD SAB, 2016 WL 7491634, at *4 (E.D. Cal. Dec. 29, 2016) (citing In re Bard IVC Filters
Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)).
III.
DISCUSSION
A.

REQUESTS FOR PRODUCTION
1.

Applicable Law

Federal Rule of Civil Procedure 34 governs requests for production of documents. See Fed.
R. Civ. P. 34. “The party to whom the [Request for Production] is directed must respond in writing
within 30 days after being served.” Fed. R. Civ. P. 34(b)(2)(A). The requesting party “is entitled to
individualized, complete responses to each of the [Requests for Production] . . . , accompanied by
production of each of the documents responsive to the request, regardless of whether the
documents have already been produced.” Louen v. Twedt, 236 F.R.D. 502, 505 (E.D. Cal. 2006).
2.

Plaintiff’s Motion to Compel Requests for Production, Nos. 2-5 is GRANTED

Plaintiff’s Requests for Production, Nos. 2-5, to Defendant Unum seek the following:
•
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•

•

Request No. 2: “All Weekly Tracking Qtr. View Reports for claims within the same
Unit(s) to which THE CLAIM was assigned during the time period of May 30, 2016
through and including October 30, 2017.”
Request No. 3: “All communications within the Unit(s) to which THE CLAIM was
assigned during the time period of May 30, 2016 through and including October 30,
2017 regarding ‘recovery plans,’ as that term is described in Exhibit A, p. 22:12 to
24:24.”
Request No. 4: “All communications generated by a financial unit within UNUM
regarding the historical performance of the block of claims to which THE CLAIM
was assigned during the time period of May 1, 2016 through and including October
30, 2017.”
Request No. 5: “All communications within the Unit(s) to which THE CLAIM was
assigned during the time period of May 1, 2016 through October 30, 2017, regarding
THE CLAIM and/or any recovery plan including THE CLAIM, including, but not
limited to instant messaging communications, communications saved to individual
desktops and/or folders which included a forecast of projected recoveries.”

Dkt. 40 at 12-16. Plaintiff defines the term “THE CLAIM” as referring to “the disability claim
submitted by Julie Gray, which is the subject of this action.” Id. at 16.
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Plaintiff seeks these Requests for Production to “show that Unum’s financial conflict of
interest tainted [Plaintiff’s termination of] benefit decision.” Dkt. 40 at 21. Specifically as to
Requests 3-5, Plaintiff “seeks recovery plans and communications regarding recovery plans which
were communicated or provided to the Unit where plaintiff’s claim pended.” Dkt. 43 at 3-4.
Plaintiff argues that previous deposition testimony from former employees of Defendant Unum
“directly contradict whether Unum truly evaluates claims solely on their merit and without regard to
its financial conflict of interest. According to deposition testimony and as strongly suggested in the
Weekly Tracking Reports, Unum is motivated to terminate claims as ‘recoveries.’ This is done to
meet forecasted projections, release claim reserves and to improve the financial picture of Unum.”
Dkt. 40 at 22.
Defendant Unum objects to Request 2 as (1) vague and ambiguous; (2) overly broad; (3) not
relevant to the claims or defenses; (4) seeking confidential records; and (5) seeking information that
pertains to other insureds who have privacy rights. Dkt. 40 at 12. Defendant Unum further alleges
that “Weekly Tracking Qtr. View Reports” “were not considered, reviewed or used in the
administration of and decision made with respect to Plaintiff’s claim, or the decision to uphold the
denial on appeal”. Id. As a result, Defendant Unum is “withholding documents that are potentially
responsive to this request but irrelevant to Plaintiff’s claim.” Id.
Defendant Unum objects to Request 3 as (1) vague and ambiguous; (2) overly broad; (3) not
relevant to the claims or defenses; (4) seeking confidential records; and (5) seeking information that
pertains to other insureds who have privacy rights. Dkt. 40 at 13. Defendant Unum further asserts
it has “conducted a reasonable, proportionate and diligent inquiry and states there were no ‘recovery
plans’ considered, reviewed or used by the Director who managed the individual who made the
decision that Plaintiff was no longer entitled to benefits, the individual who made that decision (the
DBS), the Director who managed the person who upheld the decision on appeal, or the person who
made the appeal decision.” Id.
Defendant Unum objects to Request 4 as (1) overly broad; (2) vague, ambiguous,
unintelligible, unduly burdensome, and harassing; (3) not relevant to the claims or defenses; (4)
seeking confidential records; and (5) seeking information that pertains to other insureds who have
privacy rights. Dkt. 40 at 14. Defendant Unum further argues “neither Benefits Center claims
personnel nor appeals personnel have any role or responsibility in the management, reporting or
other functions of Unum Group’s finances. They do not have access to information regarding
Unum Group’s profit and loss (other than information publicly available). Any ‘Historical
performance of the block of claims to which the claim was assigned’ was not considered, reviewed
or used in the administration of and decision made with respect to Plaintiff’s claim, or the decision
to uphold the denial on appeal.” Id. at 14-15.
Defendant Unum objects to Request 5 as (1) compound; (2) overly broad; (3) vague,
ambiguous and unintelligible; (4) unduly burdensome and harassing; (5) seeking documents that are
not relevant to the claims or defenses; and (6) seeking confidential records. Dkt. 40 at 15.
Defendant Unum further asserts it has “produced a complete copy of Administrative Record, which
contains all documents compiled and considered by [Defendant Unum] in the administration of
Plaintiff’s claim, including internal communications. [Defendant Unum] has conducted a
reasonable, proportionate and diligent inquiry and states there were no ‘recovery plans’ considered,
reviewed or used in the administration of and decision made with respect to Plaintiff’s claim, or the
decision to uphold the denial on appeal.” Id. at 15-16.
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As an initial matter, the Court finds boilerplate objections such as “unduly burdensome” and
“harassing,” improper especially when Defendant Unum has failed to submit any evidentiary
declarations supporting such objections. See Garber, 234 F.R.D. at 188. Moreover, Defendant
Unum’s objections suggest that it has within its possession the documents requested by Plaintiff but
it has reviewed the documents and decided they were not relevant to Plaintiff’s claims. As such,
Defendant Unum’s burden on producing documents it has already extracted for this case is minimal.
Thus, the Court cannot rely on Defendant Unum’s conclusory objections.
Next, the Court finds Plaintiff has met her burden of “demonstrating why the information
sought is relevant and why the responding party’s objections lack merit.” See Bluestone
Innovations, 2013 WL 6354419, at *2. The Court finds Plaintiff’s Requests for Production
regarding alleged financial incentives Defendant Unum had to terminate disability claims relevant to
determining whether Defendant Unum’s decision to terminate Plaintiff’s plan for reasons other than
the merits of Plaintiff’s claim. Indeed, these Requests for Production may allow Plaintiff to
demonstrate a conflict of interest in Defendant Unum’s decision to terminate Plaintiff’s benefit. See
Welch v. Metro. Life Ins. Co., 480 F.3d 942, 949-50 (9th Cir. 2007) (observing some discovery
aimed at proving a conflict of interest may be appropriate in an ERISA action).
Finally, to the extent Defendant Unum raises any legitimate privacy concerns, privacy does
not completely bar discovery of protected material; rather, it generally requires balancing the needs
of the party seeking discovery with the burden of production. See Soto v. City of Concord, 162
F.R.D. 603, 616 (N.D. Cal. 1995). Here, Defendant Unum’s conclusory assertion of privacy is
insufficient to preclude production of relevant documents. See Solomon v. Jacobson, No. EDCV
15-1453-VAP (JPRx), 2016 WL 6039184, at *2 (C.D. Cal. Apr. 1, 2016) (finding defendant’s
“nonspecific boilerplate” responses to plaintiff’s requests for production “inadequate” under Federal
Rule of Civil Procedure 34). Moreover, the Court finds privacy concerns can be mitigated by an
appropriate protective order. See Soto, 162 F.R.D. at 616.
Hence, Plaintiff’s Motion to Compel further responses to Requests for Production, Nos. 2-5
is GRANTED subject to a protective order limiting public disclosure of the documents and use for
any purpose other than prosecuting this litigation.
B.

DEPOSITIONS
1.

Applicable Law

Federal Rule of Civil Procedure 30 governs depositions by oral examination. See Fed. R.
Civ. P. 30. Rule 30(a)(1) provides that, subject to certain limitations, “[a] party may, by oral
questions, depose any person, including a party, without leave of court . . . .” Fed. R. Civ. P.
30(a)(1). In turn, Rule 30(b)(6) provides that:
In its notice or subpoena, a party may name as the deponent a public or
private corporation, a partnership, an association, a governmental agency, or
other entity and must describe with reasonable particularity the matters for
examination. The named organization must then designate one or more
officers, directors, or managing agents, or designate other persons who
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consent to testify on its behalf; and it may set out the matters on which each
person designated will testify.
Fed. R. Civ. P. 30(b)(6) (emphasis added). Once served with the deposition notice under Rule
30(b)(6), the responding party is required to produce one or more witnesses knowledgeable about
the subject matter of the noticed topics. Great Am. Ins. Co. of New York v. Vegas Const. Co., 251
F.R.D. 534, 538 (D. Nev. 2008). The responding party has “a duty to make a conscientious, goodfaith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to
fully and unevasively answer questions about the designated subject matter.” Id. at 539 (internal
citation and quotation marks omitted).
2.

Plaintiff’s Motion to Compel Rule 30(b)(6) Depositions, Subjects 1-5, 8-12, 14,
and 17 is GRANTED

Plaintiff’s Rule 30(b)(6) Notice of Deposition requested Defendant Unum to produce
witnesses on the following subjects of testimony:
•
•
•
•
•
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•
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Subject 1: “The utilization ‘recovery plans’ by UNUM personnel as that term is described
in Exhibit A hereto, pp. 22:12 to 24:24.”
Subject 2: “The factors utilized by UNUM personnel of claims when determining
whether a claim has a potential for a ‘recovery,’ as that term is described in Exhibit A,
pp. 22:12 to 24:24.”
Subject 3: “The communication of the ‘Plans’ within UNUM, as reflected in the Weekly
Tracking Quarter View Reports, an example of which is attached hereto as Exhibit B.
Subject 4: “The business practices of UNUM with respect to record keeping of
projections and actual realizations of recovery plans.”
Subject 5: “UNUM’s interpretation and use of the information reported on the Weekly
Tracking Quarter View Report, attached hereto as Exhibit B.”
Subject 8: “The existence and amount of the recovery plans, for the Unit(s) to which
THE CLAIM was assigned, for each month during the time period of November 1,
2016 through and including November 30, 2017.”
Subject 9: “The manner in which the UNUM Directors, of the Unit(s) to which THE
CLA[I]M was assigned during the time period of November 1, 2016 through November
30, 2017, received projected recovery plans and his or her custom and practice with
respect to the retention of said information.”
Subject 10: “The financial consequences and/or implications to UNUM of a ‘recovered’
claim.”
Subject 11: “The definition and/or interpretation of a ‘recovery’ by UNUM.”
Subject 12: “Identification of all documents within the Unit(s) to which THE CLAIM
was assigned during the time period of November 1, 2016 through November 30, 2017,
whether maintained on a database or an individual workstation, which reflected whether
THE CLAIM was forecasted for recovery.”
Subject 14: “Whether any information or documents pertaining to THE CLAIM have
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•

Subject 17. “The search and inquiry which was conducted by UNUM to respond and
locate documents responsive to Plaintiff’s First Request for Production, which is served
herewith.”

Dkt. 40 at 16-18. Plaintiff defines the term “THE CLAIM” as referring to “the disability claim
submitted by Julie Gray, which is the subject of this action.” Id. at 16.
Plaintiff seeks Rule 30(b)(6) Depositions of these subjects of testimony to prove Defendant
Unum’s financial conflict of interest affected its decision in terminating Plaintiff’s plan. Dkt. 40 at
21. As stated above, Plaintiff contends previous deposition testimony from former employees of
Defendant Unum “directly contradict whether Unum truly evaluates claims solely on their merit and
without regard to its financial conflict of interest.” Id. at 22. Plaintiff adds that these subjects of
testimony are “relevant to show that Unum’s interest in protecting its financial interest has infected
its claim process. This is directly relevant on whether Unum’s conflict of interest affected plaintiff’s
claim.” Id. at 24. Moreover, Plaintiff asserts these subjects are “directly relevant” to the “‘corporate
culture’ of Unum protecting its own financial interest, ahead of ERISA participants and fiduciaries.
This is directly probative of whether Unum’s financial conflict infected the claim process, which
resulted in the termination of benefits.” Id. at 25.
Defendant Unum objects to these subjects of testimony as irrelevant given that Defendant
Unum allegedly “determin[ed] to terminate Gray’s benefits [] based on a full and thorough review of
all the medical, vocational and other evidence in the record . . . without regard to the entity
responsible for paying the claim” or “[i]nformation concerning the finances of Unum Group or its
subsidiaries”. Dkt. 40 at 31. Defendant Unum contends that it “expressly advised through its
discovery responses that ‘recovery plans’ and ‘Weekly Tracking Qtr. View Reports’ were not
considered, reviewed or used” in determining to terminate Plaintiff’s benefits. Id. at 32. Defendant
Unum adds that “there is no evidence whatsoever that Unum Life’s structural conflict affected its
discretion in reviewing Plaintiff’s claim or that its determination of Plaintiff’s claim was motivated by
any financial information, let alone by financial gain.” Id. at 37-38.
The Court finds Plaintiff has met her burden of “demonstrating why the information sought
is relevant and why the responding party’s objections lack merit.” See Bluestone Innovations, 2013
WL 6354419, at *2. Plaintiff’s Rule 30(b)(6) Deposition, Subjects 1-5, 8-12, 14, and 17 regarding
Defendant Unum’s alleged conflict of interest in terminating claims relevant to deciding whether
Defendant Unum terminated Plaintiff’s plan because of financial concerns. As stated above,
Plaintiff may seek discovery requests, like the Depositions at issue here, to demonstrate a conflict of
interest in Defendant Unum’s termination of Plaintiff’s plan. See Welch, 480 F.3d at 949-50.
Moreover, the Court finds additional weight to the appropriateness of Plaintiff’s Deposition requests
where previous employees of Defendant Unum have allegedly testified the company is motivated
financially to terminate claims. Dkt. 40 at 22.
Additionally, to the extent Defendant Unum raises any legitimate privacy concerns with
respect to Plaintiff’s Rule 30(b)(6) Notice of Deposition, Subjects 1-5, 8-12, 14, and 17, privacy
concerns can be mitigated by an appropriate protective order. See Soto, 162 F.R.D. at 616.

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Hence, Plaintiff’s Motion to Compel Rule 30(b)(6) Deposition, Subjects 1-5, 8-12, 14, and 17
is GRANTED subject to a protective order limiting public disclosure of the documents and use for
any purpose other than prosecuting this litigation.
3.

Plaintiff’s Motion to Compel Rule 30(b)(6) Deposition, Subject 15 is
DENIED

Plaintiff’s Rule 30(b)(6) Notice of Deposition, Subject 15 requested Defendant Unum to
produce witnesses on the subject of “Whether UNUM’s claim practices during the time period of
November 1, 2016 through November 30, 2017, with respect to THE CLAIM, were consistent with
the Stipulated Settlement Agreement, attached hereto as Exhibit D.” Dkt. 40 at 17. Plaintiff
describes the Stipulated Settlement Agreement as the 2005 Settlement Agreement (“CSA”) between
Unum and the California Department of Insurance. Id. at 17 n.6.
Plaintiff seeks Rule 30(b)(6) Deposition, Subject 15 to determine “if Unum still abides by the
terms of the CSA or whether it has since changed its interpretation of the Policy and if so, why.”
Dkt. 40 at 29. Plaintiff argues that Defendant Unum’s terminating her disability plan by determining
that “plaintiff could perform her occupation as it is performed ‘in the national economy’ . . . is a
breach of the CSA.” Id. at 29.
Defendant Unum objects to this subject of testimony arguing “[d]iscovery relating to the
2005 CSA is simply not relevant to the termination of Plaintiff’s benefits in 2016.” Dkt. 40 at 38.
Defendant Unum asserts “Unum Life’s settlement agreement with the California Department of
Insurance more than 10 years before it determined that Plaintiff was no longer entitled to benefits is
not evidence that its claim determination was affected by a financial conflict of interest.” Id. at 41.
The Court finds Plaintiff has not met her burden of “demonstrating why the information
sought is relevant and why the responding party’s objections lack merit.” See Bluestone
Innovations, 2013 WL 6354419, at *2. The Court finds Rule 30(b)(6) Deposition, Subject 15 is not
relevant to Plaintiff’s allegation that Defendant Unum’s decision to terminate Plaintiff’s long term
disability benefits was based on factors not related to the merits of Plaintiff’s claim. Indeed,
nowhere in Plaintiff’s Complaint does she assert that Defendant Unum is performing acts violating
the 2005 California Settlement Agreement. See Dkt. 1.
Hence, Plaintiff’s Motion to Compel a further response to Notice of Deposition under Rule
30(b)(6), Subject 15 is DENIED.
IV.
ORDER
Based upon the foregoing reasons, IT IS THEREFORE ORDERED:
1. Plaintiff’s Motion to Compel is GRANTED as to Requests for Production, Nos. 2-5, and
Notice of Deposition under Rule 30(b)(6), Subjects 1-5, 8-12, 14, and 17.
a. Within seven (7) days of the date of this Order, the parties may file a proposed
stipulated protective order limiting public disclosure of protected information and use
for any purpose other than prosecuting this litigation. In the event the parties fail to file
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a proposed stipulated protective order, the Court will issue an appropriate order to
facilitate the exchange of relevant discovery. The parties are further directed to the
Court’s sample stipulated protective order located on the Court’s website for a sample of
the format of an approved stipulated protective order. The parties are strongly
encouraged to use the language contained in the approved stipulated protective order.
b. Within ten (10) days of the date of entry of a Protective Order, Plaintiff shall provide
to Defendant Supplemental Responses to Requests for Production, Nos. 2-5.
c. Within twenty (20) days of the date of this Order, Defendants shall appear for their
previously noticed depositions regarding Subjects 1-5, 8-12, 14, and 17 on a mutually
agreeable day.
2. Plaintiff’s Motion to Compel is DENIED as to Notice of Deposition under Rule 30(b)(6),
Subject 15.

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