Rowell v. Aviza Technology Health and Welfare Plan et al

Filing 49

ORDER by Judge Paul S. Grewal granting in part 26 Motion to Compel (psglc2, COURT STAFF) (Filed on 10/31/2011)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 12 13 14 15 MARK ROWELL, ) ) Plaintiff, ) v. ) ) AVIZA TECHNOLOGY HEALTH AND ) WELFARE PLAN and HARTFORD LIFE AND ) ACCIDENT INSURANCE COMPANY, ) ) Defendants. 16 17 Case No.: C 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL (Re: Docket No. 26) In this ERISA suit over disability insurance benefits, Plaintiff Mark Rowell (“Rowell”) moves to compel Defendant Hartford Life and Accident Insurance Company (“Hartford”) to 18 respond in full to Rowell’s interrogatory nos. 3, 4, 7, 8, 11, and 12, as well as request for 19 20 21 production (“RFP”) nos. 2 and 4.1 Having considered the briefs, oral argument, evidence and authority presented by both parties, Rowell’s motion to compel is GRANTED-IN-PART. I. BACKGROUND 22 23 Defendant Aviza Technology Health and Welfare Plan (“the Plan”) is an employee welfare 24 benefit plan that was established by Aviza Technology, Inc. (“Aviza”) under the federal Employee 25 Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. ' 1001 et seq. Hartford is the 26 1 27 28 Rowell initially moved to compel a response to RFP no. 3 as well, but notes in his reply brief that Hartford has since produced the records requested and that RFP no. 3 is no longer at issue. See Docket No. 36 at 10. 1 Case No.: 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL 1 insurer and claims administrator of the Plan, which provides long-term disability (“LTD”), life, and 2 other insurance benefits to eligible Aviza employees.2 Rowell is a former employee of Aviza. In 3 2006, Rowell allegedly developed symptoms of chronic fatigue, dizziness and memory 4 impairment, leading to his inability by August 2007 to perform his work duties.3 According to 5 Hartford, Rowell was laid off by Aviza in late August 2007 as part of a general reduction-in-force.4 6 7 8 Sometime thereafter, Rowell applied for LTD insurance benefits and for ongoing life insurance benefits under the Plan.5 Hartford initially approved Rowell’s request for LTD coverage and paid LTD benefits to 9 United States District Court For the Northern District of California 10 Rowell through December 22, 2009. However, Hartford denied Rowell the ongoing life insurance 11 benefits. Rowell appealed the denial of life insurance benefits in January 2009, and in June 2010, 12 separately appealed the denial of LTD benefits after December 22, 2009.6 As part of the appeal 13 processes and in order to conduct physician and psychologist peer reviews of the medical evidence, 14 Hartford retained the services of three medical organizations. These three organizations are 15 16 17 Behavioral Medical Interventions (“BMI”), MES Solutions (“MES”), and University Disability Consortium (“UDC”). Hartford denied both appeals.7 On December 13, 2010, Rowell filed this action, seeking 18 19 recovery of disability insurance benefits and life insurance coverage under the Plan and pursuant to 20 29 U.S.C. ' 1132(a)(1)(B), as well as reasonable attorney’s fees and costs pursuant to ' 1132(g). 21 2 22 See Compl. && 10-16 (Docket No. 1). 3 23 Rowell claims that since August 16, 2007, he has been unable to perform his or any other occupation due to the chronic fatigue syndrome. See Docket No. 1 & 20. 24 4 25 5 26 See Docket No. 34 at 4. Rowell does not specify the date that he first applied for LTD benefits in the complaint or moving papers. Hartford states that it received the application from Rowell for LTD benefits in July 2008. See id. 27 6 See Docket No. 1 && 22-28. 28 7 See Docket No. 34 at 5-6, 8. 2 Case No.: 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL On May 17, 2011, Rowell served a number of interrogatories and RFPs on Hartford. 1 2 Subsequent to two stipulations extending the time for Hartford to respond to the discovery 3 requests, Hartford responded on July 15, 2011. Rowell disputes the adequacy of Hartford’s 4 response and moves to compel full responses to the following: 5 6 Interrogatories 3, 7, and 11 seek: “the number of disability insurance claims and waiver of life insurance premium claims in which Hartford obtained an examination or medical record 7 8 review from [BMI, MES, and UDC, respectively,] and how much Hartford paid for such examinations and reviews for the years 2008, 2009, 2010, and 2011.”8 Interrogatories 4, 8, and 12 10 United States District Court For the Northern District of California 9 seek: “the number of claims in which [BMI’s, MES’s, and UDC’s, respectively,] reviewing expert 11 opined that the claimant was not disabled as of the time of the examination or review. Please 12 specify the statistics on a yearly basis.”9 13 In RFP no. 2, Rowell requests: 14 All documents describing or defining Hartford’s internal procedures for handling and deciding whether to grant disability insurance claims and waiver of life insurance premium claims, including any guidelines specific to California claimants, for the period of March 31, 2009 through November 9, 2010. This request specifically includes a request for the disability insurance claims manuals used by Hartford.10 15 16 17 18 In RFP no. 4, Rowell requests: 19 All recorded telephone conversations regarding plaintiff between Hartford’s personnel and any of the following: Anne MacGuire, M.D., John L. Brusch, M.D., Robert Marks, M.D., Jacquelyn Olander, Ph.D., Michael Raymond, Ph.D., Joseph Ricker, Ph.D., personnel of Behavioral Medical Interventions personnel of MES Solutions, or personnel of University Disability Consortium.11 20 21 22 23 24 8 Docket No. 26, Ex. B. 9 Id. 25 26 10 Id. 11 Id. 27 28 3 Case No.: 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL In its July 15 responses, Hartford stated a range of objections to the disputed 1 2 interrogatories. At issue in this motion are Hartford’s objections based on relevance of the 3 information sought to the subject matter of the litigation, the cost and burden to Hartford of 4 collecting the information, and whether such discovery is proper in an ERISA matter. With respect 5 to RFP no. 2, Hartford has agreed to produce selected portions of its claims manual under a 6 protective order. The parties disagree, however, over production of one section of the manual 7 8 9 United States District Court For the Northern District of California 10 relating to the Unfair Claims Settlement Practices Act. Hartford objects to producing the telephone records requested in RFP no. 4 on the grounds that they are not relevant under the applicable provision of ERISA, and would create an undue burden on Hartford to produce. 11 12 13 14 Rowell argues that all of the requested documents and interrogatory responses are highly relevant to his claim that Hartford’s position as both the claims administrator for the Plan and the insurer and funder of benefits paid from the Plan creates a conflict of interest that ultimately the court must weigh in determining whether Hartford abused its discretion in denying his claims.12 He 15 16 17 also argues that recent Supreme Court and Ninth Circuit precedent make abundantly clear that insurers such as Hartford should be prepared to produce the type of evidence requested. II. SCOPE OF DISCOVERY 18 19 Courts have historically limited discovery in ERISA cases consistent with ERISA’s goal to 20 “provide a method for workers and beneficiaries to resolve disputes over benefits inexpensively 21 and expeditiously.”13 In this circuit, such limited discovery was restricted to that which would 22 address a plaintiff’s burden to produce “material probative evidence” that a denial of benefits was 23 24 25 26 12 See Metropolitan Life Ins. v. Glenn, 554 U.S. 105, 117 (2008). See also Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 888 (9th Cir. 2008). 13 27 28 See Taft v. Equitable Life Assur. Soc’y, 9 F.3d 1469, 1472 (9th Cir. 1993), abrogated by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 973 (9th Cir. 2006). See also Boyd v. Bell, 410 F.3d 1173, 1178 (9th Cir. 2005). 4 Case No.: 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL 1 motivated by an administrator’s conflict of interest.14 More recently, the Ninth Circuit has clarified 2 that in reviewing the ERISA plan administrator’s decision for abuse of discretion,15 the court 3 weighs a conflict of interest as a factor and looks to “all the facts and circumstances” to determine 4 “how much or how little to credit” the administrator’s decision to deny coverage.16 In making such 5 a case-by-case credibility determination of the administrator’s decision in the face of a conflict of 6 interest,17 the court “may consider evidence outside the [administrative] record.”18 7 The parties dispute the appropriate scope and extent of discovery in this context. Rowell 8 argues that Fed. R. Civ. P. 26(b)19 sets the boundaries for the discovery to which he is entitled, and 10 United States District Court For the Northern District of California 9 moreover, that the interrogatories and RFPs at issue seek information both relevant and necessary 11 to inform the court’s determination of the extent to which Hartford’s denial of Rowell’s benefits 12 request may have been impacted by a conflict of interest. Hartford argues that ERISA’s goals and 13 14 recent case law require any discovery to be “narrowly tailored to the facts of [Rowell’s] case” and “sufficiently focused in relation to the claims history issue.”20 15 16 14 17 18 See Abatie, 458 F.3d at 966 (citing and overruling Atwood v. Newmont Gold Co., 45 F.3d 1317 (9th Cir. 1995)). A conflict of interest exists when an insurer acts as both the plan administrator and the funding source of benefits. See Glenn, 554 U.S. at 108. 15 19 20 21 The standard of review in an ERISA appeal depends on whether the plan at issue grants discretion to the administrator. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). In this case Rowell asserts – and Hartford does not dispute – that the Plan confers discretionary authority on Hartford such that the court will review the decision for abuse of discretion. See Docket No. 26 at 11. 16 22 See Abatie, 458 F.3d at 968. 17 23 24 See Saffon v. Wells Fargo & Co., 522 F.2d 863, 868 (9th Cir. 2008) (explaining that the reviewing court “must determine the extent to which the conflict influenced the administrator’s decision and discount to that extent the deference we accord the administrator’s decision”). 18 25 See Abatie, 458 F.3d at 970. 19 26 27 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. See Fed. R. Civ. P. 26(b). 20 28 See Docket No. 34 at 9. 5 Case No.: 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL The court in Abatie provided examples of “facts and circumstances” relevant to weighing a 1 2 conflict of interest: evidence of malice, of self-dealing, [] of a parsimonious claims-granting history [as well as if] the administrator provides inconsistent reasons for the denial, *** fails adequately to investigate a claim or ask the plaintiff for necessary evidence, *** fails to credit a claimant’s reliable evidence, *** or has repeatedly denied benefits to deserving participants by interpreting plan terms incorrectly or by making decisions against the weight of evidence in the record.21 3 4 5 6 7 The Supreme Court in Glenn further explained that a structural conflict of interest 8 should prove more important … where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration *** [and] should prove less important … where the administrator has taken active steps to reduce potential bias and to promote accuracy, for example, by walling off claims administrators from those interested in firm finances, or by imposing management checks that penalize inaccurate decisionmaking irrespective of whom the inaccuracy benefits.”22 9 United States District Court For the Northern District of California 10 11 12 13 Using these references as guideposts to the type of information – extrinsic to the 14 administrative record – that should be assessed in an ERISA case involving conflict of 15 16 interest, courts have sought to balance limiting discovery in ERISA cases with the need to 17 consider extrinsic evidence suggesting bias.23 The resulting trend is to allow discovery that is 18 limited in scope and tailored to eliciting information on the pertinent conflict of interest and 19 its effect on the benefits decision being appealed.24 20 21 See Abatie, 458 F.3d at 968-69 (citations omitted). 22 554 U.S. at 117. 21 22 23 23 24 25 26 27 28 See, e.g., Baldoni v. Unumprovident, Illinois Tool Works, Inc., CV No. 03-1381-AS, 2007 WL 649295 (D. Or. 2007) (“[T]he rationale for allowing discovery in certain ERISA cases remains persuasive in light of Abatie. However, the rationale for constraining discovery remains equally in force.”). 24 See, e.g., Baldoni, 2007 WL 649295, at *7 (deciding that “[i]n light of ERISA’s purpose, conflict of interest discovery should not be unlimited”); Groom v. Standard Ins. Co., 492 F. Supp. 2d 1202, 1205-06 (C.D. Cal. 2007) (concluding that discovery in ERISA case “must be narrowly tailored[,] must not be a fishing expedition” and “must be limited to requests that are relevant to ‘the nature, extent, and effect on the decision-making process of any conflict of interest that may appear in the record’”) (quoting Abatie at 967)); Klein v. Northwest Mut. Life, Case No. 09cv2843 W(NLS), 2011 WL 2579778, at *5 (S.D. Cal. June 29, 2011) (allowing discovery of “relevant evidence as to 6 Case No.: 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL III. DISCUSSION 1 Rowell seeks Hartford’s complete response to each set of interrogatories relating to its use 2 3 of BMI, MES, and UDC’s peer review services. Hartford argues that the interrogatories, which 4 inquire into Hartford’s relationship with those organizations over four years and in relation to 5 thousands of claims, improperly seek information far beyond the allowable scope. Hartford 6 similarly contends that RFP no. 4 casts a wide and expensive net seeking information not relevant 7 8 9 to Rowell’s claim. A. Interrogatories 3, 7, and 11 United States District Court For the Northern District of California 10 Interrogatories 3, 7, and 11 seek information regarding the frequency with which Hartford 11 used the medical peer review services, and how much Hartford paid for those services since 2008. 12 Hartford complains that the requests are not narrowly tailored because they span four years and all 13 three physician organizations, and not relevant because payment information merely establishes 14 that a business relationship exists between Hartford and BMI, MES, and UDC. Hartford suggests 15 16 that based on its denial of Rowell’s claim in 2009 and of his appeal in 2010, at most, “two years of 17 statistics would be necessary.”25 Hartford further argues that discovery of the confidential and 18 proprietary financial information would allow Hartford’s competitors to obtain cost information for 19 Hartford’s third-party vendors.26 20 21 Rowell argues that statistical information on frequency and finances is relevant to weighing conflict of interest because “the more business a physician review organization does with Hartford, 22 23 24 25 the nature, extent and effect of the conflict,” including at a minimum discovery into “the compensation, guidance, and performance evaluations given to the people involved in the handling of [plaintiff’s] claim, as well as at least statistical information as to the number of claims handled and denied”). 25 26 See Docket No. 34 at 12. 26 27 28 See id. Hartford alleges that Rowell has refused to accept the information under a protective order and has refused to compromise on the number of number of years or claims for which it seeks this information. See Docket No. 35 & 3. 7 Case No.: 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL 1 the less likely it is to be objective.”27 Rowell contends that evidence showing a large volume of 2 business between Hartford and the companies would support an inference that Hartford uses those 3 companies as a means of increasing its profit at the expense of the insured.28 Because Hartford 4 relied on the record review opinions generated by physicians at BMI, MES, and UDC in denying 5 Rowell’s claim, and because Rowell’s claim arose in 2008, Rowell insists that information on all 6 three organizations from 2008-2011 is appropriate. 7 Hartford’s arguments as to relevance are not persuasive in light of the Supreme Court and 8 9 Ninth Circuit precedent. For example, whether Hartford has a “history of biased claims United States District Court For the Northern District of California 10 administration”29 is not ascertainable if Rowell cannot even determine how frequently Hartford 11 used a certain company. Given the Supreme Court’s acknowledgment, albeit in a different context, 12 that non-treating “physicians repeatedly retained by benefits plans” might have an incentive to bias 13 their reports toward a finding of “not disabled,” 30 frequency of retention and financial pay-out 14 strikes the court as a legitimate inquiry. 15 Numerous courts in our district have approved discovery along both lines. For example, in 16 17 Walker v. Metropolitan Life Ins., the court denied cross-motions for summary judgment on 18 plaintiff’s ERISA claim, in no small part because “MetLife knows [the third-party review 19 company] benefits financially from doing repeat business with it” and that the company received 20 27 21 22 See Docket No. 26 at 12 (citing Black and Decker Disability Plan v. Nord, 538 U.S. 822, 832 (2003) (acknowledging the validity of the “concern that physicians repeatedly retained by benefits plans may have an ‘incentive to make a finding of “not disabled” in order to save their employers money and to preserve their own consulting arrangements’”). 23 28 See id. 24 29 See Glenn, 554 U.S. at 117. 25 30 26 27 28 See Black and Decker, 538 U.S. at 832. In this case, the Court considered whether an ERISA plan administrator was required to accord special deference to opinions of treating physicians as opposed to physicians employed by third-party review groups. The Court concluded that treating physicians would receive no special deference, in part because just as third-party review physicians could be biased against a finding of disabled, a treating physician could be biased in the opposite direction. See id. 8 Case No.: 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL 1 more than $11 million from Met Life over a five-year time frame.31 The court also approved 2 discovery relating to the number of claims Met Life had referred to the third-party company.32 3 Likewise, in Caplan v. CNA Financial Corp., the court concluded that it would review the 4 insurance company’s decision with “commensurate skepticism” based on evidence that UDC, the 5 third-party review company, received “more than thirteen million dollars from Hartford since 6 7 8 9 2002” and “knows that UDC has an incentive to provide it with reports that will increase the chances that Hartford returns to UDC in the future.”33 And in Miranda v. First Reliance Standard Life Insurance Co., the court granted-in-part plaintiff’s motion to compel discovery regarding the United States District Court For the Northern District of California 10 insurer’s use of MES as a third-party medical record reviewer over the course of six years, 11 including number of referrals and money paid for review services.34 12 13 In sum, Hartford’s concerns regarding the expansive breadth of interrogatories 3, 7, and 12 and their lack of relevance to Rowell’s particular claim is unsupported by case law in this district. 14 As the insurer and administrator of Rowell’s benefits, Hartford is obligated to produce information 15 16 that will help the court determine how much weight to ascribe, if any, to Hartford’s conflict of 17 interest. The number of times that Hartford used each company over the three-year time period and 18 the total amount paid out is permissible conflict of interest discovery and not unduly burdensome 19 to produce. 20 B. 21 Interrogatories 4, 8, and 12 Interrogatories 4, 8, and 12 seek statistics on a yearly basis on the number of claims 22 reviewed by BMI, MES, and UDC physicians in which the “reviewing expert opined that the 23 24 claimant was not disabled.” Hartford argues that this line of question is burdensome, irrelevant, and 25 31 585 F. Supp. 2d 1167, 1175 (N.D. Cal. 2008). 26 32 See id. 27 33 544 F. Supp. 2d 984, 991-92 (N.D. Cal. 2008). 28 34 CV 09-4452 RS (NJV), 2011 WL 2441762, at *5 (N.D. Cal. June 15, 2011). 9 Case No.: 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL 1 highly improper in the ERISA context. Hartford first argues that the information is not reasonably 2 calculated to lead to admissible evidence because the merits of those claims are not at issue, and 3 the information sought is meaningless taken out of context of the specific facts of each of those 4 cases.35 Hartford also argues that the reviewing physicians are not asked to draw a conclusion 5 whether the claimant is disabled or not disabled, but rather answer a number of questions 6 pertaining to the claimant’s functional capacity and any restrictions or limitations. Because the 7 8 9 United States District Court For the Northern District of California 10 BMI, MES, and UDC physicians do not make the ultimate disability determination, Hartford contends that Rowell’s interrogatories have no bearing on the question of Hartford’s conflict of interest.36 11 12 13 14 Although Rowell argues that Hartford provides insufficiently vague references to the burden or cost that would be imposed on it, he has offered to curb his request to only “the number of cases in which [Hartford] denied the claim within six months of the review by UDC, MES, or BMI.”37 In Walker, the court ordered just such an inquiry to take place, requiring MetLife to 15 16 provide statistics on the “number of claims denied in reliance on [third-party physician reviewer] 17 reviews.”38 The court rejected the insurer’s claim that producing the information would require 18 more than 2,200 hours of work and be unduly burdensome and expensive, because “without this 19 information, the influence of MetLife’s conflict of interest as compounded by its reliance on [the 20 third-party company] cannot readily be determined by the record.”39 The court also noted that such 21 information was consistent with the Ninth Circuit’s advice to conflicted ERISA plan administrators 22 23 35 See Docket No. 34 at 13. 36 See id. at 14 (citations omitted). 37 See Docket No. 36 at 5; Docket No. 30-1, Ex. A at 5. 38 See id. 39 See id. 24 25 26 27 28 10 Case No.: 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL 1 2 “‘to bring forth affirmative evidence that any conflict did not influence its decisionmaking process.’”40 In this case, interrogatories 4, 8, and 12 are not sufficiently limited to information that 3 4 might illuminate the “effect on the decision-making process of any conflict of interest that may 5 appear in the record.”41 The court is nevertheless persuaded that at least a portion of the requested 6 statistical information is necessary to evaluate whether Hartford has a “history of parsimonious 7 8 9 claims granting.” The appropriate balance between this need and the need to minimize the burden on Hartford is as follows: for each of the years 2009 and 2010, Hartford shall supplement its United States District Court For the Northern District of California 10 interrogatory responses to identify the percentage of claims submitted to BMI, MES, and UDC that 11 resulted in a decision by Hartford within six months to deny benefits. 12 C. 13 Requests for Production nos. 2 and 4 The parties have agreed on the production of all but one section of the claims manual at 14 issue in RFP no. 2. Rowell seeks production of the “Unfair Claims Settlement Practices Act” 15 16 section. Although it relates to state law, rather than ERISA, Rowell claims that the section is 17 relevant to this action because ERISA exempts from preemption state laws that regulate 18 insurance.42 To the extent this issue remains in dispute, the court is not persuaded that Hartford 19 faces a burden whatsoever to producing the disputed section, no matter how limited its relevance. 20 Hartford shall produce the section. 21 In RFP no. 4, Rowell requests the telephone records between Hartford’s personnel and 22 UDC, MES, and BMI doctors and staff. The parties dispute whether these records fall within 23 24 ERISA’s definition of the administrative record, which must be produced to a claimant appealing a 40 25 26 Id. (quoting Abatie, 438 F.3d at 969). But see Dilley v. Metropolitan Life Ins. Co., 256 F.R.D. 643, 645 (N.D. Cal. 2009) (rejecting similar request due to the “relative inaccessibility” of the information sought). 41 See Abatie, 458 F.3d at 967. 42 See Docket No. 36 at 12 (citing 29 U.S.C. ' 1144(b)(2)(A)). 27 28 11 Case No.: 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL 1 benefits denial. Hartford argues that although it produced similar records in response to RFP no. 2, 2 it did so as a matter of compromise and not to concede that the records are “relevant” under ERISA 3 regulations. Rowell argues that he is entitled to a copy of the phone conversations, because they 4 were generated during the course of his benefits determination. 5 6 ERISA regulation requires certain records be produced to a claimant, including “all documents, records, and other information relevant to the claimant’s claim for benefits.”43 The 7 8 9 regulation defines such a record or document to be “relevant” if it 1) was “relied upon in making the benefit determination,” or 2) was “submitted, considered, or generated in the course of making United States District Court For the Northern District of California 10 the benefit determination, without regard to whether [it] was relied upon in making the benefit 11 determination.”44 Hartford concedes that the phone conversations at issue were “conducted during 12 the course of the claim.”45 But Hartford argues that such recordings were not “generated” at that 13 14 time, but would have to be generated after the fact by a request to retrieve the recording from the IT department.46 More important, Hartford argues that such extensive discovery goes against 15 16 ERISA’s purpose of providing timely and cost-effective resolution of claims. The court agrees with Rowell that the telephone conversations and recorded records thereof 17 18 were “generated in the course of making the benefit determination” within the meaning of 29 19 C.F.R. ' 23560.503-1(m)(8). The recorded conversations are therefore discoverable, subject to the 20 overarching need to limit unduly burdensome discovery in ERISA cases. Although Hartford claims 21 that retrieving such records would be excessively burdensome and costly, and would open the door 22 to abusive discovery requests in ERISA cases, Hartford has provided no testimony or other 23 24 43 See 29 C.F.R. ' 2560.503-1(h)(2). 44 See id. ' 23560.503-1(m)(8). 45 See Docket No. 34 at 18. 46 See Docket 34-2 & 2. 25 26 27 28 12 Case No.: 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL 1 evidence that substantiates the extent of the burden.47 Hartford therefore shall produce the records 2 requested, consistent with the efforts it already undertook to retrieve the records requested by RFP 3 no. 2.48 4 IV. CONCLUSION 5 6 No later than November 18, 2011, Hartford shall provide the discovery required by this order. All other relief requested by Rowell is denied. 7 8 Dated: 10/31/2011 _________________________________ PAUL S. GREWAL United States Magistrate Judge 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 47 The declaration submitted by a Hartford team Team Leader whose responsibilities include “managing claims analysts” states only that “[i]n order to generate the recording, Hartford has to request and retrieve the recording from our IT department who makes the recorded calls available for retrieval by a Team Leader.” See Docket 34-2 & 2. 48 28 See Docket No. 35 & 2 (“Hartford is producing those recorded conversations with Plaintiff which it could locate.”). 13 Case No.: 10-5656 PSG ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL

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