Benjamin v. Oxford Health Ins, Inc

Filing 55

RULING granting in part and denying in part plaintiff's 44 MOTION to Compel Further Responses To Plaintiffs First Set Of Requests For Production; and granting defendant's 49 MOTION to Strike 48 Reply to Response to Motion. Signed by Judge Sarah A. L. Merriam on 2/28/2017. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
AMY BENJAMIN
:
:
v.
:
:
OXFORD HEALTH INS., INC.
:
:
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Civ. No. 3:16CV00408(AWT)

February 28, 2017

RULING ON PLAINTIFF’S MOTION TO COMPEL [#44] AND ON DEFENDANT’S
MOTION TO STRIKE [#49]
On December 22, 2016, plaintiff Amy Benjamin (“plaintiff”)
filed a Motion to Compel Further Responses to Plaintiff’s First
Set of Requests for Production. [Doc. #44]. Plaintiff’s motion
seeks an Order compelling defendant Oxford Health Insurance,
Inc. (“defendant”) to provide further responses to plaintiff’s
discovery requests that were served on defendant on November 4,
2016. See id. at 2. Defendant has filed a Memorandum of Law in
Opposition to Plaintiff’s Motion to Compel, [Doc. #47] and
plaintiff has filed a Reply. [Doc. #48]. Defendant has also
filed a motion to strike a portion of plaintiff’s reply, and
plaintiff has filed a response. [Docs. ##49, 52]. For the
reasons set forth below, plaintiff’s motion to compel is
GRANTED, in part, and DENIED, in part. Defendant’s motion to
strike is GRANTED.
I.

Background
Plaintiff filed this action on March 10, 2016, pursuant to
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29 U.S.C. §§1132(a),(e),(f), and (g) of the Employee Retirement
Income Security Act of 1974, (hereinafter “ERISA”) seeking,
inter alia, benefits under the terms of an employee benefit
plan. See Doc. #1. On August 10, 2016, Judge Alvin W. Thompson
referred this case to the undersigned to conduct an early
settlement conference. See Docs. ##24, 25. On August 22, 2016,
the undersigned entered a settlement conference Order, setting
deadlines and requirements for a settlement conference scheduled
for October 21, 2016. [Doc. #29]. On October 19, 2016, after
extensive ex parte discussions regarding settlement with counsel
for both parties, the undersigned concluded that the record was
not sufficiently developed for a settlement conference to be
productive in this matter. The Court therefore canceled the
settlement conference, and entered an amended Scheduling Order
requiring all discovery requests to be propounded on or before
November 4, 2016, and responses to be served within 30 days of
the date of service of the requests. See Docs. ##37, 38.
During a telephonic status conference on December 9, 2016,
before the undersigned, counsel for plaintiff indicated that she
was unsatisfied with defendant’s responses to plaintiff’s
discovery requests. See Doc. #43. The Court thus encouraged the
parties to meet and confer, and entered a Scheduling Order,
setting deadlines for the filing of any discovery-related
motions. See Doc. #43. On December 22, 2016, counsel for
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plaintiff filed the instant Motion to Compel. [Doc. #44]. On
January 3, 2017, the motion was referred to the undersigned.
[Doc. #45]. On January 13, 2017, counsel for defendant filed a
memorandum in opposition to plaintiff’s motion. [Doc. #47]. On
January 27, 2017, plaintiff filed a reply. [Doc. #48]. On
February 6, 2017, defendant filed a Motion to Strike certain
portions of plaintiff’s reply papers. [Doc. #49]. Plaintiff
filed a response to defendant’s motion to strike on February 17,
2017. [Doc. #52].
II.

Legal Standard
In an action challenging the denial of benefits under

ERISA, “the presumption is that judicial review is limited to
the record in front of the claims administrator unless the
district court finds good cause to consider additional
evidence.” Muller v. First Unum Life Ins. Co., 341 F.3d 119, 125
(2d Cir. 2003) (quotation marks and citation omitted).1 See also

“[A] denial of benefits challenged under §1132(a)(1)(B) is to
be reviewed under a de novo standard unless the benefit plan
gives the administrator or fiduciary discretionary authority to
determine eligibility for benefits or to construe the terms of
the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
115 (1989). “If the insurer establishes that it has such
discretion, the benefits decision is reviewed under the
arbitrary and capricious standard.” Krauss v. Oxford Health
Plans, Inc., 517 F.3d 614, 622 (2d Cir. 2008) (citation
omitted). Defendant asserts that it has discretionary authority
to determine eligibility for benefits and to construe the terms
of the subject plan, and therefore this matter is subject to the
arbitrary and capricious standard of review. See Doc. #47 at 12.
Plaintiff does not address this issue in her motion to compel.
1

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Krauss, 517 F.3d at 631 (“[A] district court’s decision to admit
evidence outside the administrative record is discretionary, but
which discretion ought not to be exercised in the absence of
good cause.” (quotation marks and citation omitted)).
“It follows that if a court has the discretion to admit
materials outside the administrative record upon a showing of
good cause, then the court must also have the discretion to
permit discovery of such materials.” Puri v. Hartford Life &
Acc. Ins. Co., 784 F. Supp. 2d 103, 105 (D. Conn. 2011)
(quotation marks omitted). However, “in order to justify
discovery beyond the administrative record, Plaintiff need not
make a full good cause showing, but must show a reasonable
chance that the requested discovery will satisfy the good cause

The Court notes, however, that even if defendant is correct in
its assertion, “as the arbitrary and capricious standard
requires courts to scrutinize, although deferentially, decisions
by plan fiduciaries for lack of reasonableness, including the
absence of substantial evidence, such deficiencies in the
administrative review function can be significantly illuminated
through the reasonable exercise of standard discovery devices
available in federal civil practice.” Nagele v. Elec. Data Sys.
Corp., 193 F.R.D. 94, 104 (W.D.N.Y. 2000). Further, “[t]he
standard of review, the admissibility of evidence outside of the
administrative record, and the scope of discovery are three
separate issues, and the Court need not decide the first two in
order to decide the last. ... The Court can rule on the scope of
discovery without deciding the standard of review and without
deciding whether evidence outside the administrative record will
ultimately be considered.” Shelton v. Prudential Ins. Co. of
Am., No. 16CV1559(VEC), 2016 WL 3198312, at *2 (S.D.N.Y. June 8,
2016) (collecting cases). Accordingly, the Court makes no
determination at this time as to what standard of review is
applicable to this matter.
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requirement.” Burgio v. Prudential Life Ins. Co. of Am., 253
F.R.D. 219, 230 (E.D.N.Y. 2008) (quotation marks and citation
omitted); see also Schrom v. Guardian Life Ins. Co. of Am., No.
11CV1680(BSJ)(JCF), 2012 WL 28138, at *3 (S.D.N.Y. Jan. 5,
2012)(“[D]iscovery is only permitted where it is reasonably
likely that the requested information will satisfy the good
cause requirement.” (citations omitted)). Accordingly, in an
ERISA case, “a plaintiff is entitled to seek discovery ... if
she can demonstrate a good reason why evidence thus obtained
might later provide good cause for a court to admit evidence
beyond the administrative record.” Puri, 784 F. Supp. 2d at 105
(quotation marks omitted). “The good cause standard required to
obtain evidence beyond the administrative record through
discovery is therefore less stringent than when requesting that
the court consider such evidence in its final determination.”
Burgio, 253 F.R.D. at 230 (quotation marks and citation
omitted); see also Laakso v. Xerox Corp., No. 08CV6376(CJS),
2011 WL 3360033, at *3 (W.D.N.Y. Aug. 3, 2011) (“[I]n an ERISA
action, the standard for obtaining discovery of matters beyond
the administrative record is less stringent than the standard
for admissibility.” (citation omitted)).
Good cause may exist to permit discovery beyond the
administrative record where there is an allegation of a
structural conflict of interest; however, courts have generally
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determined that the party seeking the discovery must show more
than the existence of a conflict to satisfy its burden. See
Feltington v. Hartford Life Ins. Co., No. 14CV6616(ADS)(AKT),
2016 WL 1056568, at *9 (E.D.N.Y. Mar. 15, 2016) (“[A] structural
conflict of interest is not sufficient by itself to permit
extra-record discovery and a party seeking to conduct discovery
outside the administrative record must allege more than a mere
conflict of interest.” (quotation marks and citation omitted)
(collecting cases)); cf. Locher v. Unum Life Ins. Co. of
America, 389 F.3d 288, 296 (2d Cir. 2004) (holding that “a
conflicted administrator does not per se constitute good cause,
and caution[ing] district courts that a finding of a conflicted
administrator alone should not be translated necessarily into a
finding of good cause” but that “it may be possible, in
unforeseen circumstances, for good cause to rest entirely on the
existence of a conflicted administrator”). Discovery beyond the
administrative record has also been “permitted to test the
adequacy of the administrative record,” Gill v. Bausch & Lomb
Supplemental Ret. Income Plan I, No. 09CV6043(CJS), 2011 WL
2413411, at *5 (W.D.N.Y. June 10, 2011), and thus to provide
“meaningful judicial review[.]” Nagele, 193 F.R.D. at 106.
Ultimately, however, “[t]o obtain discovery outside the
administrative record, [] a plaintiff must do more than make
conclusory allegations, claim discovery is needed to determine
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whether he or she received a fair review, or allege a structural
conflict of interest.” Shelton, 2016 WL 3198312, at *3 (citation
omitted); see also Lane v. The Hartford, No. 06CV3931(DC), 2006
WL 3292463, at *2 (S.D.N.Y. Nov. 14, 2006) (denying plaintiff’s
request for discovery beyond the administrative record because
“[p]laintiff does not allege that there was a conflict of
interest, nor does plaintiff sufficiently explain why discovery
is needed - except for her repeated assertion that it is needed
to determine whether she received a ‘full and fair review’”).
III. Discussion
Plaintiff’s Motion to Compel concerns defendant’s failure
to provide responses to plaintiff’s Requests for Production
served on defendant on November 4, 2016. Specifically, plaintiff
seeks additional responses to Requests for Production 1, 2, 7,
8, 9, 10, and 11. See Doc. #44-1 at 3. Plaintiff groups her
requests into two categories: Those seeking discovery and
information regarding defendant’s interpretation of the subject
insurance plan’s preauthorization requirement (Requests for
Production 1, 2, 7, 8, and 9); and those requesting discovery on
the issue of whether an in-network facility was available to
treat plaintiff at the time of her admission to an out-ofnetwork facility (Requests for Production 10 and 11). See
generally Doc. #44-1. Defendant argues that plaintiff has not
shown that she is entitled to any of the discovery she seeks,
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and has asserted substantially the same objections, with minor
variations, in response to each of plaintiff’s requests. See
generally Doc. #47. The Court will address the challenged
requests as grouped by plaintiff, but will first address
defendant’s pending motion to strike portions of plaintiff’s
reply papers. [Doc. #49].
A.

Defendant’s Motion to Strike Plaintiff’s Reply

As an initial matter, defendant has moved to strike
portions of plaintiff’s reply papers, arguing that plaintiff
improperly raised new arguments in support of her motion to
compel for the first time in reply. See generally Doc. #49.
Specifically, defendant moves to strike references in
plaintiff’s reply to two new arguments as to why the requested
discovery is necessary: (1) to explore defendant’s conflict of
interest; and (2) to determine an appropriate amount of
potential damages. See id. at 2, see also Doc. #48 at 2-4.
Plaintiff has submitted a response to defendant’s motion. [Doc.
#52].
“Arguments may not be made for the first time in a reply
brief.” Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir. 1993); see
also Corpes v. Walsh Constr. Co., 130 F. Supp. 3d 638, 644 (D.
Conn. 2015)(“Because raising new arguments for the first time in
a reply brief is improper, the Court will not consider these
issues[.]”(citations omitted)). Plaintiff’s motion does not
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allege a structural conflict of interest as a ground for
permitting the discovery she seeks. Accordingly, the Court will
not consider this argument.
However, the Court notes that even if it were to entertain
plaintiff’s argument regarding a conflict of interest, the
extra-record discovery that plaintiff seeks would not be
permitted on this ground. Plaintiff’s claim of the existence of
a conflict is conclusory, and plaintiff has not made specific
allegations that lead the Court to find that discovery is
warranted on this basis. See Wagner v. First Unum Life Ins. Co.,
100 F. App’x 862, 864 n.1 (2d Cir. 2004)(“[D]iscovery may be
appropriate in some cases where a petitioner seeks to show a
conflict of interest[.] ... But because [plaintiff] has not
shown ‘good cause’ in support of her request, we affirm the
court’s decision below denying discovery.” (internal citations
and explanatory parentheticals omitted)); cf. Puri, 784 F. Supp.
2d at 106 (allowing discovery where plaintiff alleged a conflict
and raised a “colorable allegation that Defendant’s decision to
terminate her benefits was tainted by a conflict of interest,”
and limiting the discovery to an inquiry as to whether the claim
determination was affected by said conflict).
Nor is the discovery that plaintiff seeks related to any
effort on behalf of the plaintiff to show that the benefits
determination resulted from a conflict. See Feltington, 2016 WL
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1056568, at *8 (“Where a plaintiff contends that a benefits
determination was tainted by the plan administrator’s conflict
of interest, ... courts may permit extra-record discovery
relating to a conflict, since much of the relevant information
would not have been part of the administrative record, but not
discovery into the substantive merits of the claim.” (quotation
marks and multiple internal citations omitted)).
The Court also declines to address plaintiff’s argument
that the discovery sought is warranted for the purpose of
calculating damages, as this argument was also improperly raised
for the first time in plaintiff’s reply papers. Accordingly,
defendant’s Motion to Strike is GRANTED.
B.

Requests for Production Nos. 1, 2, 7, 8, 9

Plaintiff’s motion to compel seeks discovery responsive to
Requests 1, 2, 7, 8, and 9. See Doc. #44-2 at 8-10. Plaintiff
argues that these requests are directed “at obtaining documents
setting forth Oxford’s preauthorization rules and explaining how
they are interpreted and applied.” Doc. #44-1 at 8. Plaintiff
argues that the requests seek discovery that is relevant under
both the regulations, see 29 C.F.R. §2560.503-1(m)(8), and under
the Federal Rules of Civil Procedure, as a “key issue in this
case” is whether “the preauthorization penalty appl[ies] to

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Plaintiff’s claim, and if so, how.”2 Doc. 44-1 at 9. Plaintiff
contends that any records explaining the preauthorization
penalties belong in the administrative record, if they existed
at the time that plaintiff’s claim was denied.3 See id.
Defendant objects to all but one of plaintiff’s discovery
requests at issue on the grounds that the requests are unclear,
overbroad, unduly burdensome, vague, and ambiguous. See Doc.
#44-2 at 16, 17, 19, 20. Defendant also raises objections based
on relevance, proportionality, and confidentiality. See id.
Defendant’s objections refer plaintiff to the previously
produced administrative record, and provide a large range of
Bates numbers. See id.
As an initial matter, the Court notes that while it is an
acceptable practice under Rule 34 of the Federal Rules of Civil

Plaintiff’s plan contains a provision that appears to apply a
$500 reduction in benefits for failure to seek preauthorization.
See Doc. # 46-3 at 124. Plaintiff argues that, rather than
denying the claim, defendant should have reduced the benefits in
accordance with this provision.
2

Plaintiff further contends that these requests were made “in
order to determine whether there is any support for Oxford’s
position that ... the $500 penalty applies on a daily basis as
opposed to Plaintiff’s claim as a whole.” Doc. #44-1 at 2-3. In
a footnote, defendant argues that this request appears to be
“improperly based on confidential discussions between the
parties during the settlement conference in this matter.” Doc.
#47 at 17. However, the Court notes that counsel for the
defendant raised this issue on the record during the December 9,
2016, status conference.
3

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Procedure to direct a party to records previously produced, a
party electing to use this approach must identify where the
response for the request is to be located. Simply referring the
plaintiff generally to the initial disclosures and specifically
to the 139 pages that comprise the subject insurance policy, or
to the 593 pages that comprise the administrative record, is
insufficient. See 7 James Wm. Moore et al; Moore’s Federal
Practice §34.13[2][a] (3d ed. 2016) (“It is [] improper to refer
the proponent to documents previously delivered without
providing an index or otherwise directing the proponent to where
a response for each request may be found.”). To the extent
defendant seeks to rely on documents already produced, it must
provide the Bates numbers of the particular documents that are
responsive.
Further, defendant’s objections fail to comply with the
rules governing discovery, particularly as revised in 2015. The
Federal Rules call for the objecting party to “state with
specificity the grounds for objecting to the request, including
the reasons.” Fed. R. Civ. P. 34(b)(2)(B). The amended rule
further requires that “[a]n objection [] state whether any
responsive materials are being withheld on the basis of that
objection. An objection to part of a request must specify the
part and permit inspection of the rest.” Fed. R. Civ. P.
34(b)(2)(C).
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“[P]at, generic, non-specific objections, intoning the same
boilerplate language, are inconsistent with both the letter and
the spirit of the Federal Rules of Civil Procedure. An objection
to a document request must clearly set forth the specifics of
the objection and how that objection relates to the documents
being demanded.” In re Priceline.com Inc. Sec. Litig., 233
F.R.D. 83, 85 (D. Conn. 2005) (quoting Obiajulu v. City of
Rochester, 166 F.R.D. 293, 295 (W.D.N.Y. 1996)). See also
Tourtelotte v. Anvil Place Master Tenant, LLC, No.
3:11CV1454(WWE), 2012 WL 5471855, at *2 (D. Conn. Nov. 9, 2012)
(“Boilerplate objections that include unsubstantiated claims of
undue burden, overbreadth and lack of relevancy while producing
no documents ... are a paradigm of discovery abuse.” (quotation
marks and citations omitted)).
Here, the Court is hard-pressed to see how any of
plaintiff’s requests are unclear, overbroad, vague or ambiguous.
The requests are time-limited and directed to specific
information and policies. Defendant has not supplied any support
for its objections on these bases. The Court also notes that
relevance, in discovery matters, is generously construed. Rule
26 specifically provides that information sought in discovery
“need not be admissible in evidence to be discoverable.” Fed. R.
Civ. P. 26(b)(1). “Moreover, relevance in this context is given
a broad construction, and a party arguing that information
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sought in discovery is not relevant bears the burden of
demonstrating specifically how, despite the broad and liberal
construction afforded the federal discovery rules, each request
is not relevant.” Safeco Ins. Co. of Am. v. Vecsey, 259 F.R.D.
23, 27 n.1 (D. Conn. 2009) (internal quotation marks and
citation omitted); see also Hurst v. Conopco, Inc., 264 F.R.D.
30, 31 (D. Conn. 2010). Defendant’s assertion that the
information sought is not relevant is conclusory, and fails to
sustain this burden. Further, defendant’s responses provide no
indication of whether responsive documents exist but are being
withheld.
Nevertheless, as this case is governed by ERISA, the Court
must decide whether to permit discovery beyond the
administrative record as to those items that, as plaintiff
claims, relate to the subject plan’s preauthorization
requirement. The Court is mindful that “a plaintiff cannot
satisfy the good cause requirement simply by arguing that the
plan administrator acted in clear error. Otherwise, every ERISA
case would include documents outside the record.” Anderson v.
Sotheby’s Inc. Severance Plan, No. 04CV8180(SAS), 2005 WL
6567123, at *5 (S.D.N.Y. May 13, 2005). That is not the case
here. It appears to the Court that, based on plaintiff’s
arguments, this discovery is sought to determine “the nature of
the information considered by [defendant], the criteria used for
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its decision, and whether the administrative record is
complete[.]” Mitchell v. First Reliance Standard Life Ins. Co.,
237 F.R.D. 50, 54 (S.D.N.Y. 2006) (citing Nagele, 193 F.R.D. at
103).
The Court finds that there is a “reasonable chance” that
the discovery sought by Requests 7, 8 and 9 could satisfy the
good cause requirement. Burgio, 253 F.R.D. at 230. It is
undisputed that plaintiff’s claim was denied for failure to
obtain preauthorization, and the plan contains a provision that
purports to reduce plaintiff’s benefits if she does not seek
preauthorization. See Doc. #46-3 at 124. It is unclear what
information defendant relied on in denying plaintiff’s claim for
benefits, and defendant does not point to any specific
information in the administrative record addressing this issue.
Additional discovery beyond the administrative record is
warranted in this instance to reveal how defendant determined
that plaintiff’s claim should be denied for failure to seek
preauthorization.
Accordingly, the Court will permit discovery beyond the
administrative record as to Requests 7, 8, and 9, to determine
whether the administrative record is complete and to identify
the information considered by defendant in denying plaintiff’s
claim based on failure to seek pre-authorization. However,
plaintiff has made no argument in support of her motion to
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compel further responses to Requests 1 and 2, which seek
information that the Court does not believe to be discoverable
in this ERISA matter.
Accordingly, plaintiff’s Motion to Compel is GRANTED as to
Requests 7, 8, and 9. Defendant shall serve additional responses
to plaintiff’s Requests for Production 7, 8 and 9 on or before
March 14, 2017. Plaintiff’s Motion to Compel additional
responses to Requests 1 and 2 is DENIED.
C.

Requests for Production Nos. 10 and 11

The Court next examines plaintiff’s requests regarding
availability of an in-network facility. Request for Production
10 seeks: “All documents listing facilities that, in 2014,
provided residential treatment for substance use disorders, and
were in-network under the Policy.” Doc. #44-2 at 10. Request for
Production 11 seeks documents listing in-network facilities that
provided residential treatment for eating disorders for that
same time frame. See id. at 11. Defendant asserted an identical
objection to each of these requests:
Oxford objects to this Request because it is unclear,
overbroad, unduly burdensome, vague, and ambiguous.
Oxford objects because this Request seeks documents that
are not relevant to the pleaded claims or defenses
involved in this action. Oxford also objects to this
Request because it exceeds the permissible scope of
discovery, which is limited under ERISA to the
administrative record and the information set out in
Porter, supra. Further, this Request seeks information
that is not properly discoverable because it is not

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proportional to the needs and issues of this ERISA case
pursuant to Fed. R. Civ. P. 26(b)(1).
Doc. #44-2 at 20, 21.
Plaintiff argues that defendant’s objections are meritless,
and are “not well taken.” Doc. #44-1 at 4. Plaintiff claims that
the requests seek relevant information, as defendant’s denial of
plaintiff’s claim was premised in part on the plaintiff’s
selection of an out-of-network provider. See id. at 5. Plaintiff
acknowledges that the Court generally considers only the
administrative record in ERISA cases, but contends that the
information sought was “known to the administrator” and
therefore should be produced, citing Fourth Circuit law for this
proposition. Id. Defendant argues, inter alia, that plaintiff
has not made a showing that would justify expanding the record
on review, and that the requests do not “concern any category of
extra-record discovery permissible under ERISA.” Doc. #47 at 15.
The Court agrees with defendant. Plaintiff has not shown
that there is a “reasonable chance” that the discovery requested
in Requests 10 and 11 will satisfy the good cause requirement.
Burgio, 253 F.R.D. at 230. As plaintiff herself acknowledged,
her claim for benefits was denied because the services were not
authorized in advance. See Doc. 44-1 at 2; see also Doc. #46-4
at 16; Doc. #46-5 at 1; Doc. #46-6 at 1. Plaintiff’s Complaint
is premised on a theory that her claim was wrongly denied, based

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on the language and terms of the applicable insurance plan.
Plaintiff argues that information regarding the availability –or lack thereof –- of in-network treatment facilities would bear
on whether defendant’s denial was reasonable, because defendant
“cannot contend that it is permitted to enforce out-of-network
limitations such as the preauthorization penalty” if there were
no in-network facilities available. Doc. #44-1 at 2. This
argument is creative, but the Court is not persuaded that such
discovery could reasonably lead to information that would
satisfy the good cause requirement, and therefore does not
justify requiring discovery beyond the administrative record.
The Court therefore concludes that plaintiff has not made
the showing necessary to permit discovery beyond the
administrative record as to Requests 10 and 11. See Sobhani v.
Butler Am., Inc., No. 3:13CV0728(MPS), 2014 WL 545730, at *4 (D.
Conn. Feb. 10, 2014) (“Thus, after a careful review of
Plaintiff’s ... Requests for Production contained therein, the
Court concludes that Plaintiff has failed to point to any
evidence in the administrative record to support a conclusion
that there is a reasonable chance that allowing any of this
discovery would yield information that would enable him to make
a good cause showing, which is a prerequisite for allowing
discovery outside the record.” (citation omitted)). Accordingly,

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plaintiff’s Motion to Compel additional responses to Requests 10
and 11 is DENIED.
IV.

Conclusion
For the reasons set forth above, plaintiff’s Motion to

Compel is GRANTED, in part, and DENIED, in part. Defendant shall
produce the documents requested in plaintiff’s Requests for
Production 7, 8, and 9 on or before March 14, 2017. If the
responsive records do not exist, defendant shall so indicate.
Any claims of privilege with regard to document production must
be supported by an appropriate privilege log, in compliance with
Rule 26(b)(5) of the Federal Rules of Civil Procedure and Rule
26(e) of the Local Rules of Civil Procedure. Plaintiff’s Motion
to Compel as to Requests 1, 2, 10 and 11 is DENIED. Defendant’s
Motion to Strike is GRANTED.
This is not a Recommended Ruling. This is an order
regarding discovery which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
SO ORDERED at New Haven, Connecticut, this 28th day of
February, 2017.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
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