Welle v. Provident Life and Accident Insurance Company

Filing 40

STIPULATION AND ORDER re 38 STIPULATION WITH PROPOSED ORDER Joint Stipulation to Continue Non-Expert and Expert Discovery Cut-Off Dates; (Proposed) Order filed by Provident Life and Accident Insurance Company. Signed by Judge Edward M. Chen on 10/10/13. (bpfS, COURT STAFF) (Filed on 10/11/2013)

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Daniel W. Maguire, (SBN 120002)
E-mail: [e-mail]
Keiko J. Kojima, (SBN 206595)
E-mail: [e-mail]
BURKE, WILLIAMS & SORENSEN, LLP
444 South Flower Street, Suite 2400
Los Angeles, CA 90071-2953
Tel: [phone] Fax: [phone]
Attorneys for Defendant
Provident Life and Accident Insurance
Company
Michael B. Horrow (SBN 162917)
E-mail: [e-mail]
Nichole D. Podgurski (SBN 251240)
E-mail: [e-mail]
Donahue & Horrow, LLP
1960 E. Grand Avenue, Suite 1215
El Segundo, CA 90245
Tel: [phone] Fax: [phone]
Attorneys for Plaintiff
Dana M. Welle, D.O.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANA M. WELLE, D.O.,
Plaintiff,

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v.

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PROVIDENT LIFE AND
ACCIDENT INSURANCE
COMPANY; DOES 1 to 10,
inclusive,

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Case No. CV12-03016 EMC
JOINT STIPULATION TO
CONTINUE NON-EXPERT AND
EXPERT DISCOVERY CUT-OFF
DATES; (PROPOSED) ORDER

Defendants.

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TO THE HONORABLE COURT AND TO ALL PARTIES HEREIN:

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Plaintiff Dana Welle (“Plaintiff”) and Defendant Provident Life and Accident

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Insurance Company (“Provident”), hereby stipulate, by and through their respective

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counsel, to continue the non-expert and expert discovery cut-off dates, for good

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B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4827-1221-3013 v2

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CASE NO. CV12-03016 EMC
JOINT STIPULATION TO CONTINUE NONEXPERT AND EXPERT DISCOVERY CUT-OFF
DATES

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cause shown, as explained in detail below:
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The present action involves a complex non-ERISA disability insurance

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benefit dispute involving multiple factual and expert witnesses. Plaintiff asserts

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claims against Provident for breach of contract and breach of the implied covenant

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of good faith and fair dealing. On June 12, 2012, the Court issued an order (Docket

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#26) with the following pretrial dates:

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Expert disclosures/reports

October 3, 2013

Discovery cut-off

October 3, 2013

Further Status Conference

October 10, 2013 at 10:30 a.m.

Rebuttal expert disclosures/reports

October 24, 2013

Dispositive Motions (last day to be heard)

December 19, 2013 at 1:30 p.m.

Expert discovery cut-off

November 14, 2013

Pre-Trial Conference

March 11, 2014

Trial (8 court days estimate)

March 24, 2014

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2.

Since June 2012, the parties have diligently and cooperatively engaged

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in extensive discovery, including 17 depositions, multiple sets of interrogatories (1

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set by Plaintiff and 2 sets by Defendant) and requests for production of documents

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(5 sets by Plaintiff and 3 sets by Defendant), as well as subpoenas to numerous

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third parties. The initial sets of discovery were served by the parties in August and

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September 2012, with the parties first attempting to obtain dates for the depositions

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of Provident’s witnesses in October 2012, which were noticed in December 2012

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and proceeded to take place in January 2013 and April 2013.

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3.

The meet and confer process has also been extensive and, for the most

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part, successful. However, there exist remaining issues on which the parties are

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meeting and conferring, such as Provident’s Special Investigations Unit file which

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was the subject of a discovery motion ruled upon by the Court on July 31, 2013.

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The Court granted and denied Plaintiff’s motion in part. After Provident produced

B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4827-1221-3013 v2

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CASE NO. CV12-03016 EMC
JOINT STIPULATION TO CONTINUE NONEXPERT AND EXPERT DISCOVERY CUT-OFF

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its SIU file documents on August 30, 2013, Plaintiff initiated a meet and confer

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over the documents in the SIU file that Provident maintains are privileged. There

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are additional issues Plaintiff is raising in meet and confer sessions with Provident

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after Plaintiff’s counsel’s receipt of other documents Provident produced in

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response to the Court’s July 31, 2013 discovery order. Plaintiff has filed motions

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to compel to resolve these issues which are pending before Magistrate Westmore.

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Provident will also be filing a motion to compel with respect to Plaintiff’s financial

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documents. Plaintiff anticipates on filing further motions to compel based on

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additional information she claims she recently obtained, including but not limited to

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a motion to compel the SIU policies and procedures file, an addendum to the

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motion to compel the complete SIU file, and a motion to compel the depositions of

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3 additional witnesses from Provident (Kenneth Kesler, Joanna Bialy, and Laura

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Lefebrve).

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4.

Both parties require and respectfully request additional time to

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complete discovery that has been properly noticed before the discovery cut-off,

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including the taking of depositions of witnesses Laura Kilmartin (located in

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Portland, Maine), Joanna Bialy (located in Worcester, Massachusetts), Laura

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Lefebrve (located in Worcester, Massachusetts), and Ken Kensler (located out of

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state). Plaintiff maintains she discovered the need to take the depositions of Ms.

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Bialy in early September 2013 after receiving the court-ordered documents.

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Plaintiff has also requested the deposition of Ms. Kilmartin in early August 2013,

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but this deposition was not able to occur by the October 3, 2013 non-expert

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discovery cut-off due to Ms. Kilmartin and Provident’s counsel, Daniel W.

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Maguire’s unavailability. The earliest Ms. Kilmartin’s deposition can be taken is

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November 1, 2013. Plaintiff has also noticed the depositions of Laura Lefebrve and

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Ken Kenseler after taking the deposition of SIU investigator Natayla Vayn.

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Provident objects to Plaintiff’s taking of depositions in excess of the 10 deponent

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limit, which may be an issue Plaintiff will be raising with the Court. As stated

B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4827-1221-3013 v2

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CASE NO. CV12-03016 EMC
JOINT STIPULATION TO CONTINUE NONEXPERT AND EXPERT DISCOVERY CUT-OFF

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above, if Provident maintains its objections to these depositions, Plaintiff will seek

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to compel them.
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In addition, Provident will need additional time to complete discovery

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properly noticed before the discovery cut-off, which is limited to completing the

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process of obtaining the subpoenaed records already issued, deposing the doctors

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newly disclosed in plaintiff’s supplemental disclosures, and any discovery motions

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only as to issues regarding subpoenas previously issued or plaintiff’s discovery

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responses previously served.
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The parties therefore request a continuance of the discovery cut-off

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date to January 7, 2014 in order to complete only the discovery that was properly

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noticed before the October 3, 2013 cut-off and/or resolve the discovery issues

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regarding that discovery.
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The parties further request that the expert discovery cut-off date of

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November 14, 2013, also be continued to February 1, 2014 to allow additional

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flexibility in scheduling expert depositions.
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The parties respectfully submit that good cause for the requested

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continuance exists because counsel for the parties have been coordinating the

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scheduling of the depositions and have been actively engaging in written discovery,

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including meet and confer efforts. This is the parties’ first request for a continuance

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of the case management dates. Further, the parties are not requesting a continuance

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of all case management dates.
9.

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For the above reasons, IT IS HEREBY STIPULATED AND

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AGREED, subject to the Court’s approval, that the case management dates be

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continued as follows:

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Discovery cut-off1

From 10/3/13 to 1/7/14

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Expert discovery cut-off

From 11/14/13 to 2/1/14

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B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

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Only as to the discovery outlined above.

LA #4827-1221-3013 v2

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CASE NO. CV12-03016 EMC
JOINT STIPULATION TO CONTINUE NONEXPERT AND EXPERT DISCOVERY CUT-OFF

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Respectfully submitted,

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DATED: October 9, 2013

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DONAHUE & HORROW, LLP
Michael B. Horrow
Nichole D. Podgurski

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By: s/Nichole D. Podgurski
as authorized on 10/9/13
Michael B. Horrow
Attorneys for Plaintiff
Dana M. Welle, D.O.

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DATED: October 9, 2013

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BURKE, WILLIAMS & SORENSEN, LLP
Daniel W. Maguire
Keiko J. Kojima

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By: s/Keiko J. Kojima
Keiko J. Kojima
Attorneys for Defendant
Provident Life and Accident Insurance
Company

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B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

LA #4827-1221-3013 v2

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CASE NO. CV12-03016 EMC
JOINT STIPULATION TO CONTINUE NONEXPERT AND EXPERT DISCOVERY CUT-OFF

ORDER

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For good cause shown IT IS HEREBY ORDERED:

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The Case Management dates in the above-entitled action have been

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continued as follows:

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Discovery cut-off2

From 10/3/13 to 1/7/14

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Expert discovery cut-off

From 11/14/13 to 2/1/14

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10/10/13

DATED: __________________

UNITED STATES DISTRICT
COURT JUDGE

UNIT
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B URKE , W ILLIAMS &
S ORENS EN , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

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Only as to the discovery outlined above.

LA #4827-1221-3013 v2

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CASE NO. CV12-03016 EMC
JOINT STIPULATION TO CONTINUE NONEXPERT AND EXPERT DISCOVERY CUT-OFF