Peng v. The Northwestern Mutual Life Ins Co

Filing 55

ORDER RE: DISCOVERY DISPUTE (FIFTH) (Illston, Susan) (Filed on 3/5/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERT C. K. PENG,

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Plaintiff,

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ORDER RE: DISCOVERY DISPUTE
(FIFTH)

v.

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Case No. 17-cv-01760-SI

NORTHWESTERN MUTUAL LIFE
INSURANCE CO.,

Re: Dkt. No. 52

United States District Court
Northern District of California

Defendant.
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Now before the Court is the parties’ fifth discovery dispute letter, which was discussed

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during the March 2, 2018 case management conference. See Dkt. No. 52 (“Joint Statement”). As

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discussed at the conference, the Court hereby ORDERS as follows.

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I.

Mental Health Information

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On July 14, 2017, the Court ruled on the parties’ first discovery dispute. Dkt. No. 30.

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That dispute involved plaintiff’s motion to quash defendant’s third-party subpoena to Kaiser

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Permanente that sought “all psychiatric documents” and related records.

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plaintiff’s motion to quash, finding that plaintiff put his medical records, including his psychiatric

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records, sufficiently at issue to waive any claim of privilege. Dkt. No. 30 at 4. However, the

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Court modified the dates for the requested information to “January 1, 2012 to the present date, and

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from on or 10 years prior to February 8, 1996.”1 Id. at 5.

The Court denied

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The cut-off date of 10 years prior to February 8, 1996, derives from defendant’s argument
that plaintiff “denied any psychiatric diagnosis and any mental health treatment in the past ten
years” on his initial February 8, 1996 application for a disability insurance policy. Dkt. No. 26-1
at 2-4.

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In the current dispute, defendant is seeking mental health information from plaintiff that

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pre-dates February 1986. Plaintiff, meanwhile, argues that he should not have to produce mental

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health information for the dates between February 1996 and January 2012.

At the case

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management conference, defendant stated that it had arbitrarily selected the January 2012 cut-off
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date in its initial requests and that subsequent discovery has revealed the need for further mental

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health records.

Specifically, “Plaintiff’s treating psychiatrist testified at her deposition that

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Plaintiff’s treatment went back to before 2007.” Joint Statement at 3 n.5.

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The Court clarifies that its prior order contained specific cut-off dates in response to the

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issues raised by the motion to quash. As previously stated in the Court’s first Order Re: Discovery

United States District Court
Northern District of California

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Dispute, plaintiff has put his medical records, including his mental health, at issue by filing for

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disability insurance benefits and by filing this lawsuit. Defendant states that it is continuing to
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investigate the question of rescission, and that the records it requests are relevant.2 The Court
agrees. The Court also agrees with plaintiff that, because his initial application for insurance

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sought information from ten years prior, his responses need not encompass information prior to

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February 8, 1986. Plaintiff is therefore ordered to respond to discovery requests regarding his

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mental health, from the dates of February 8, 1986, to the present. Plaintiff shall accordingly

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authorize defendant to obtain his medical/mental health records from Kaiser Permanente from
February 8, 1986, to present.3

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Among other affirmative defenses, defendant alleges that plaintiff “fraudulently
misrepresented and[/]or concealed material information in his application for the insurance
coverage issued by Northwestern Mutual such that the coverage is subject to rescission.” Dkt. No.
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The parties have attached as an exhibit the authorization form that defendant requests
plaintiff sign. It authorizes the release of medical records from Kaiser Permanente “from
inception of mental health treatment to January 1, 2012.” Joint Statement, Ex. C. Because this
release could in theory encompass records prior to February 1986, the Court reiterates that it is not
ordering the release of mental health records prior to February 8, 1986.
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II.

Financial Information
Defendant also seeks plaintiff’s financial information.

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The parties’ second discovery

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dispute arose from plaintiff’s objections to defendant’s requests for production of plaintiff’s tax

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returns. Dkt. No. 34. The Court ruled the information relevant and ordered plaintiff to produce

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his tax returns, pursuant to the protective order on file in this case. Dkt. No. 37. The parties now

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dispute whether plaintiff must also disclose his passive income, such as real estate holdings and

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brokerage accounts.
The Court finds that plaintiff has not placed his passive income at issue and therefore it is

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not relevant to this case. Nowhere in the Amended Complaint does plaintiff allege he has suffered

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a loss to his passive income because of the actions of defendant, nor does his allege that he

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United States District Court
Northern District of California

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suffered any emotional distress due to the financial burden of not receiving full payment on his

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disability policies. At the case management conference, counsel for plaintiff affirmed that he

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would not seek to present at trial any argument that plaintiff suffered a financial hardship or

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attendant emotional distress as a result of defendant’s failure to pay his policy benefits. Moreover,

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plaintiff has already submitted to defendant his personal income tax returns.

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The Court accordingly finds that evidence of plaintiff’s passive income is not relevant and

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need not be produced to defendant. As discussed at the case management conference, plaintiff

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will be precluded from seeking to introduce evidence of financial distress at trial.

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III.

Remaining Disputes

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The Court previously ordered plaintiff to produce documentation of the sale of his dental

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practice. Dkt. No. 37. To the extent he has not yet done so, the Court again orders plaintiff to

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produce the requested information regarding the sale of the dental practice.

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To the extent that this Order does not address all of the discovery disputes on which the

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parties seek a ruling, the Court refers the parties to the undersigned’s Standing Order. The

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Standing Order requires parties to meet and confer in person or by telephone to resolve their

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dispute.4 Standing Order ¶ 3. “A mere exchange of letters, e-mails, telephone calls, or facsimile

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transmissions does not satisfy the requirement to meet and confer.” Id. “If, after a good faith

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effort, the parties have not resolved their dispute, they shall prepare a concise joint statement of 5

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pages or less, stating the nature and status of their dispute.” Id. (emphasis added). At present,

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the Court has been left to guess as to the nature of the dispute on certain discovery requests, as

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neither party clearly outlines what issues need resolving. Simply attaching written discovery

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requests will not suffice, particularly where, as here, the attached responses pre-date the Court’s

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ruling on several discovery disputes. See Joint Statement, Ex. A, B (dated Sept. 5, 2017); Dkt. No.

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37 (filed Oct. 11, 2017). The Court will not hear any further discovery disputes unless the parties

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comply with the Standing Order in all respects.

United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: March 5, 2018
______________________________________
SUSAN ILLSTON
United States District Judge

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It is unclear whether the parties here complied with the requirement to meet and confer
prior to filing the present discovery dispute letter with the Court.
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