Myers v. Anthem Life Insurance Company

Filing 41

MEMORANDUM OPINION AND ORDER granting in part and denying in part 14 Motion for Discovery; Anthem shall serve its responses to Myers's discovery requests no later than thirty (30) days after the entry of this order. The Court construes My ers's reply in support of her use of Davis as supplemental authority 35 as a motion for sanctions. Myerss motion for sanctions is DENIED; denying as moot 36 Motion to Strike. Signed by Magistrate Judge Colin H. Lindsay on 3/21/2016. cc: Counsel(JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:14-CV-948-JHM-CHL

NICOLE MYERS,

Plaintiff,

v.
ANTHEM LIFE INSURANCE COMPANY,

Defendant.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion for discovery (“Motion for “Discovery”) (DN
14) filed by Plaintiff Nicole Myers (“Myers”). The Motion for Discovery has been extensively
briefed by both parties. Among several related filings is a motion to strike (DN 36) filed by
Defendant Anthem Life Insurance Company (“Anthem”). Both motions are ripe for review. For
the following reasons, Myers’s Motion for Discovery (DN 14) is GRANTED IN PART and
DENIED IN PART; Myers’s motion for sanctions within DN 35 is DENIED; and Anthem’s
motion to strike (DN 36) is DENIED AS MOOT.
BACKGROUND
At the heart of this dispute is a disagreement regarding the scope of discovery in ERISA
cases. Myers asserts a breach of contract claim pursuant to ERISA, specifically 19 U.S.C. §
1132(a)(1)(B), in relation to Anthem’s denial of her claim for benefits under a long-term
disability policy.1 Myers filed the Motion for Discovery due to her conviction that she is entitled

1

Myers initially asserted a second claim against Anthem that was based on 29 U.S.C. § 1132(a)(3). Chief
Judge Joseph H. McKinley, Jr. granted a partial motion to dismiss filed by Anthem, thereby disposing of the Section
1132(a)(3) claim. (DN 20 (motion to dismiss); DN 31 (memorandum opinion and order granting motion to
dismiss).) Myers’s sole surviving claim is the Section 1132(a)(1)(B) claim. Consistent with Chief Judge
McKinley’s ruling, the undersigned Magistrate Judge subsequently granted a motion to strike (DN 21) filed by
Anthem, that sought to strike all references to the Section 1132(a)(3) from the Motion and related briefing. (See DN
32 (“Any and all references to a claim pursuant to § 1132(a)(3) are hereby STRICKEN from Myers’s reply (DN 18)
in support of her motion for discovery. Anthem need not respond to any discovery requests that are expressly
related to § 1132(a)(3), and Myers shall not seek any additional discovery on the basis of the now-dismissed §

to discovery in particular areas beyond the administrative record. Following the filing of the
Motion for Discovery, Anthem filed a response in opposition and Myers filed a reply. (DN 16,
18.) Myers subsequently filed three notices of supplemental authority (DN 22, 33, 39), one of
which sparked the filing of an additional response (DN 34) and reply (DN 35). Finally, Anthem
filed the motion to strike (DN 36), requesting that the Court strike Myers’s reply (DN 35) in
support of her first notice of supplemental authority (DN 33) on the basis that the reply amounts
to a meritless and improperly pleaded motion for sanctions. Myers filed a response in opposition
to the motion to strike, and Anthem filed a reply. (DN 38, 40.)
1. Motion for Discovery
A. Procedural History
On March 23, 2015, the Court entered a scheduling order (DN 9) in this case. With
respect to discovery, the scheduling order provides in its entirety, “No discovery shall be
permitted at this time. After reviewing the Administrative Record, plaintiff may move the Court
to allow discovery on a discrete issue or issues.” (DN 9, ¶ 3.) Thereafter, Defendant timely filed
– under seal – the administrative record.

(DN 10-12.)

Myers then filed the Motion for

Discovery and on the same day served on Anthem her discovery requests. (See DN 14, 14-1, 142.) The Court recounts this history for two reasons. First, Anthem contends that by serving
discovery requests without first moving the Court to permit discovery on discrete issues beyond
the administrative record, Myers violated the terms of the scheduling order. Anthem is correct.
In serving discovery at a time when “[n]o discovery shall be permitted,” Myers disobeyed DN 9.
However, the Motion for Discovery is in keeping with the spirit of the scheduling order, if not

1132(a)(3) claim.”). Accordingly, the instant analysis addresses the motion to strike solely as it relates to Myers’s
Section 1132(a)(1)(B) claim; it does not address the Section 1132(a)(3) claim.

2

the letter, in that the motion seeks the Court’s approval of the requests that Myers has served on
Anthem. Moreover, given the staggering amount of time and resources that both parties have
already put into this discovery dispute, to require Myers to file a distinct motion seeking
approval of its discovery requests and then re-serve approved requests on Anthem would only
serve to further delay the progression of this case.
Second, both parties acknowledge that Anthem has not responded to Myers’s discovery
requests both for the reasons asserted in its response (DN 16) to the Motion for Discovery and
because of its contention that service of the discovery requests violated the scheduling order as
described above. In any event, because Anthem has not responded to the discovery requests, the
Court is left to address the Motion for Discovery without being able to address any existing,
specific objections by Anthem. Cf. Gluc v. Prudential Life Ins. Co. of Am., 309 F.R.D. 406, 408
(W.D. Ky. Aug. 5, 2015) (stating in background section basis for defendant’s objections to
discovery requests).
B. Myers’s Motion
Myers begins her Motion for Discovery by acknowledging that the Court’s review in
ERISA cases is generally limited to the administrative record. However, she argues, discovery
related to Section 1132(a)(1)(B) claims is broader in scope; it permits discovery of “evidence
outside the record . . . offered in support of a procedural challenge to the administrator’s
decision, such as an alleged lack of due process afforded by the administrator or alleged bias on
its part.” (DN 14 at 1 (quoting Johnson v. Conn. Gen. Life Ins. Co., 324 Fed. Appx. 459, 466
(6th Cir. 2009) (additional citations omitted)).) Myers contends that discovery is appropriate in
this case because there is an inherent bias or conflict of interest where, as here (she argues), the
3

same entity both determines whether an employee is eligible for benefits and makes benefits
payments. Myers argues that so long as she makes an initial allegation of a conflict of interest,
that is, that Anthem is the entity responsible for both determining eligibility for benefits and
paying any benefits, then she is entitled to discovery on particularized areas of inquiry.
The specific areas of discovery to which Myers argues she is entitled include the
following: (1) the identities of the employees who were directly involved in Myers’s claims and
appeals process, as well as “the extent to which those persons may have been pressured to render
particular outcomes;” (b) the structure of Anthem’s claims and appeals units; (c) Anthem’s
efforts to eliminate bias and promote accuracy; and (d) third-party medical reviewers used by
Anthem in relation to Myers’s claim and appeal. (DN 14 at 5.)
C. Anthem’s Response
Anthem filed a lengthy response in opposition (DN 16) to the Motion for Discovery.
Anthem states that while Myers alleges in her Motion for Discovery that Anthem “has a
structural conflict of interest, which entitles her to discovery . . . [she] has never pled in her barebones complaint or stated in any other filing to this Court how a conflict of interest led to an
arbitrary denial of benefits, nor has she ever pled or otherwise articulated how the process of
Anthem’s denial violated her rights under the plan.” (DN 16 at 2.) Anthem contends that
discovery beyond the administrative record is inconsistent with ERISA’s goal of providing a
mechanism for employees to resolve benefits disputes “inexpensively and expeditiously.” (Id. at
3 (quotations omitted).)
With respect to expanded discovery due to a conflict of interest, Anthem argues that this
district has limited such discovery to that which would assist the court in determining whether a
4

conflict of interest affected the plan administrator’s decision. Anthem contends that Myers
should be limited to discovery requests related to which “she can articulate the relevancy based
on the circumstances of the case and the administrative record.” (Id. at 6.) Anthem cites a 2012
decision from this district, Clark v. American Electrical Power Systems Long Term Disability
Plan, 871 F. Supp. 2d 655, 658-59 (W.D. Ky. 2012), in support of a list of what it contends are
permissible areas2 of discovery in this case. (Id. at 7.) According to Anthem, Myers seeks
discovery well beyond3 those permissible areas of inquiry.

Anthem asserts that in other

decisions, this Court has “identified areas of inquiry that are impermissible,” including several
areas that go to “reviewer credibility.” (DN 16 at 9-10 (“[D]iscovery is limited to the possibility
of a financial bias on the part of the administrator and the payor, and discovery is not permitted
on topics intended to challenge the specific qualifications of the person or persons actually
performing the review, so as to collaterally challenge the determination on that basis.”) (quoting
Clark Am. Elec. Power Sys. Long Term Disability Plan, 871 F. Supp. 2d 655, 661 (W.D. Ky.
2012)).

2

Anthem identifies the following as “permitted areas of inquiry:” (1) incentive, bonus or reward programs or
systems, formal or informal, for any employee(s) involved in any meaningful way in reviewing disability claims; (2)
contractual connections between plan administrator/payor and the reviewers utilized in plaintiff’s claim, and
financial payments paid annually to the reviewers from the administrator/payor; (3)statistical data regarding the
number of claims files sent to the reviewers and the number of denials which resulted; (4) the number of times the
reviewers found the claimants able to work in at least a sedentary occupation or found that claimants were not
disabled; and (5) documentation of administrative processes designed only to check the accuracy of grants or claims
(limited to claims guidelines actually consulted to adjudicate the plaintiff’s claim. (DN 16 at 7.)
3

Anthem identifies the following areas as “far beyond those permissible areas of inquiry:” (1) the basis for
an assertion of discretionary review; (2) the amount of the monthly benefit the Plaintiff should receive; (3) the
identity of individuals involved in her claims handling; and (4) any and all reasons for the denial of the Plaintiff’s
claim and appeal. (Id.)

5

D. Myers’s Reply
Myers filed a detailed reply (DN 18) in support of the Motion for Discovery. Myers
argues that a case upon which Anthem strongly relies in its response, Crider v. Life Ins. Co. of
North America, 2008 U.S. Dist. LEXIS 6715 (W.D. Ky. 2008), is of limited relevance due to a
subsequent Supreme Court case, MetLife Ins. Co. v. Glenn, 554 U.S. 105 (2008).

Myers

contends that Anthem inappropriately attempts to place on her a burden of demonstrating
entitlement to discovery, when in reality she need only make an allegation of bias, which (she
argues) she has successfully done in this case. Myers argues that the burden now shifts to
Anthem to substantiate its objections to responding in full to her discovery requests. (DN 18 at
3.)
As the Court discusses each of the requests below, it is not necessary to recount here
Myers’s arguments with respect to each discovery requests. It suffices to say that Myers argues
that each of her discovery requests is proper under Sixth Circuit precedent.
2. Supplemental Authority
Following her submission of the reply, Myers filed three notices of supplemental
authority. (See DN 22 (regarding Gluc, 309 F.R.D. 406); DN 33 (regarding Davis v. Hartford
Life & Accident Ins. Co., 2015 U.S. Dist. LEXIS 158313 (W.D. Ky. Nov. 24, 2015)); DN 39
(regarding Owens v. Liberty Life Assurance Co. of Boston, Civil Action No. 4:15-cv-00071-JHM
(W.D. Ky. Jan. 15, 2016)).) In its second notice of supplemental authority (DN 33), Myers
brings to the Court’s attention Davis v. Hartford Life & Accident Ins. Co., 2015 U.S. Dist.
LEXIS 158313 (W.D. Ky. Nov. 24, 2015), a memorandum opinion and order granting an ERISA
plaintiff’s motion to compel discovery. The notice of supplemental authority includes lengthy
6

excerpts from the Davis opinion, all of which, according to Myers, support her claim that she is
entitled to substantive responses to each of her specific discovery requests.
Anthem filed a response (DN 34) to Myers’s notice of supplemental authority. Anthem
argues that the Davis case is distinguishable from this case. Specifically, Anthem argues that in
Davis, the plaintiff made numerous allegations in the complaint that entitled her to relatively
broad discovery for an ERISA case, whereas in this case, Myers’s complaint is less detailed.
Therefore, Anthem contends, the justification for the broader scope of discovery permitted in
Davis Myers is not present here.
Myers then filed a reply (DN 35) in support of her use of Davis as supplemental
authority. In the reply, Myers characterizes Anthem’s conduct during the discovery process as
deliberately obstructive, not in good faith, and contrary to recent binding precedent from this
district. Myers requests that the Court “put a halt to Anthem’s continued obstruction and delay”
by granting her discovery motion and sanctioning Anthem, pursuant to Rules 11 and 26 of the
Federal Rules of Civil Procedure and 29 U.S.C. § 1927, by awarding her related attorneys’ fees
and costs. (DN 35 at 3.)
3. Motion to Strike
Anthem then filed a motion to strike (DN 36) Myers’s reply (DN 35) in support of her
use of Davis as supplemental authority. Anthem contends that the reply has no merit and is
effectively an improperly pled Rule 11 motion for sanctions. Specifically, Anthem argues that
pursuant to an order entered on March 19, 2015 (DN 9), the Court permitted Myers to seek
permission, after reviewing the administrative record, to move forward with discovery on a
discrete number of issues. Instead, Anthem argues, Myers proceeded to serve discovery requests
7

on a wide range of topics well beyond the scope of the Court’s orders and to file the Motion for
Discovery. Now, Anthem contends, Myers seeks to sanction Anthem for complying with the
Court’s order regarding discovery.
Moreover, Anthem argues, the motion is deficient pursuant to Rule 11. Anthem argues
that a Rule 11 motion for sanctions must be made by separate motion rather than in conjunction
with another pleading, and therefore, it was improper for Myers to include her request for
sanctions in her reply in support of her supplemental authority. Anthem further states that Myers
failed to comply with Rule 11 by filing her motion for sanctions without first serving it on
Anthem. Anthem argues that both its decision to withhold responses to Myers’s discovery
requests and its use of case law in its arguments in opposition to the Motion for Discovery were
reasonable under the circumstances, and thus, sanctions are not appropriate under either Rule 11
or Rule 26(g).

Finally, Anthem argues that it has not “multiplie[d] the proceedings . . .

unreasonably and vexatiously” such that an award of costs would be warranted pursuant to 28
U.S.C. § 1927. (DN 36 at 7 (quoting Johnson v. Zimmer Holdings, Inc., 73 F. Supp. 3d 814, 818
(E.D. Ky. 2014) (citing 28 U.S.C. § 1927).)
In her response (DN 38), Myers repeats what is becoming the refrain of this case: that the
opposing party – in this instance, Anthem – is responsible for causing undue delay and making
arguments that are not supported by binding case law. Myers contends that the motion to strike
is improper because such motions may only be filed in relation to “pleadings,” whereas here, the
motion to strike is directed at the request for fees and costs contained in Myers’s reply in support
of her notice of supplemental authority, which should not be construed as a pleading. Myers
again requests that the Court award her fees and costs as requested in her reply (DN 35), as well
8

as in relation to her response to the motion to strike. Myers argues that her request for sanctions
was proper because she brought her request pursuant to Rule 11(c)(3), which permits the Court
to award sanctions on its own initiative, and does not involve the Rule 11(c)(2) requirements of a
separate motion and “safe harbor” filing.
Finally, Anthem filed a reply (DN 40) in support of its motion to strike. The reply
reiterates Anthem’s arguments in its motion to strike and need not be described further here.
DISCUSSION
1. Motion for Discovery
A. Legal Standard
i. Discovery in Matters Governed by ERISA
The initial question that must be addressed before turning to Myers’s individual
discovery requests is whether she may obtain any discovery outside of the administrative record.
“Generally, parties in a civil action may obtain discovery regarding any unprivileged matter that
is relevant to the claim or defense of any party.” Likas v. Life Ins. Co. of N. Am., 222 Fed. Appx.
481, 485 (6th Cir. 2007) (citing Fed. R. Civ. P. 26(b)(1)). In ERISA actions, however, discovery
is “substantially limited.” Davis, 2015 U.S. Dist. LEXIS 158313 at *2 (citing Likas, 222 Fed.
Appx. at 485). “Discovery under ERISA is a largely unsettled area of law as federal courts
continue to vary the scope of discovery permitted in ERISA actions even after the Supreme
Court case on the matter, Metro Life Ins. Co. v. Glenn, 554 U.S. 105 (2008).” Id. (citing Mullins
v. Prudential Ins. Co. of Am., 267 F.R.D. 504, 510 (W.D. Ky. 2010)) (internal citation omitted).
Typically, in ERISA actions, discovery is not permitted outside of the administrative
record. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 618 (6th Cir. 1998) (Gilman, J.,
9

concurring). “This rule serves ‘a primary goal of ERISA [which is] to provide a method for
workers and beneficiaries to resolve disputes over benefits inexpensively and expeditiously,’
Perry v. Simplicity Eng’g. Div. of Lukens Gen. Indus., 900 F.2d 963, 967 (6th Cir. 1990), ‘and
any routine consideration of evidence outside that presented to plan administrators would
undermine Congress’s intent.’” Davis, 2015 U.S. Dist. LEXIS 158313 at *3 (quoting Thornton
v. W. & S. Life Ins. Co. Flexible Benefits Plan, 2010 U.S. Dist. LEXIS 7221, *1 (W.D. Ky. Jan.
28, 2010)). “An exception is recognized, however, when evidence outside the record is ‘offered
in support of a procedural challenge to the administrator’s decision, such as an alleged lack of
due process afforded by the administrator or alleged bias on its part.’” Johnson, 324 Fed. Appx.
at 466 (quoting Wilkins, 150 F.3d at 619 (Gilman, J., concurring)).
Having established that limited discovery may be permitted in an ERISA case where a
claimant alleges bias on the part of the plan administrator, as Myers alleges in this case, the
Court’s next task is to identify the threshold for a claimant to establish a right to such discovery.
“Prior to the Supreme Court’s decision in Glenn, courts in the Sixth Circuit did not have a
uniform standard for what triggered the exception to the general rule that under ERISA no
discovery may occur outside the administrative record.” Davis, 2015 U.S. Dist. LEXIS 158313
at *4 (citing Busch v. Hartford Life & Accident Ins. Co., 2010 U.S. Dist. LEXIS 101881 at *1
(E.D. Ky. Sept. 27, 2010); Thornton, 2010 U.S. Dist. LEXIS 7221 at *2; Crider v. Life Ins. Co.
of N. Am., 2008 U.S. Dist. LEXIS 6715, *3-4 (W.D. Ky. Jan. 29, 2008)). In Glenn, the Supreme
Court provided guidance on the issue, holding that “when a plan administrator both evaluates
claims for benefits and pays benefits claims,” there is a per se conflict of interest. Glenn, 554
U.S. at 112.
10

The Supreme Court further stated in Glenn that it is not “necessary or desirable for courts
to create special burden-of-proof rules, or other special procedural or evidentiary rules, focused
narrowly upon the evaluator/payor conflict . . . [because] special procedural rules would create
further complexity, adding time and expense to a process that may already be too costly for
many of those who seek redress.” Id. at 116. The Sixth Circuit has provided minimal guidance
in the aftermath of Glenn; however, “it is logical to assume that the Supreme Court meant for
lower courts to allow some discovery beyond the administrative record when the conflict of
interest is present.” Davis, 2015 U.S. Dist. LEXIS 158313 at *5 (quoting McQueen v. Life Ins.
Co. of N. Am., 595 F. Supp. 2d 752, 755 (E.D. Ky. 2009)).
District courts in the Sixth Circuit have taken two contrasting approaches following
Glenn. “Some courts have found that the mere presence of an evaluator/payor conflict of interest
is sufficient to allow discovery outside of the administrative record.” Id. at *6 (citing Mullins,
267 F.R.D. at 512). These courts “reason that the act of denying discovery until there has been
an initial showing of bias ‘essentially handcuffs the plaintiff, who . . . will rarely have access to
any evidence beyond a bare allegation of bias, in the absence of discovery.’” Kasko v. Aetna Life
Ins. Co., 33 F. Supp. 3d 782, 786-87 (E.D. Ky. 2014) (quoting Kinsler v. Lincoln Nat. Life Ins.
Co., 660 F. Supp. 2d 830, 836 (M.D. Tenn. 2009)). Conversely, some courts “have found that an
allegation of bias alone is insufficient[;] [i]nstead, a plaintiff must make a sufficient factual
showing to expand discovery beyond the administrative record.” Id. at 787.
In the November 2015 Davis opinion, which was entered by Senior United States District
Judge Thomas B. Russell and which is the subject of Myers’s second notice of supplemental
authority (DN 33), the Court stated as follows: “Having reviewed both approaches, this Court is
11

persuaded by the case law followed by most fellow courts in Kentucky that the mere existence of
an evaluator/payor conflict of interest is sufficient to allow discovery outside of the
administrative record.”

Davis, 2015 U.S. Dist. LEXIS 158313 at *8.

Further, the Court

“caution[ed] that discovery is to be limited to the conflict of interest and allegations of bias.” Id.
at *9 (citing Brainard v. Liberty Life Assurance Co. of Boston, 2014 U.S. Dist. LEXIS 178492,
*4 (E.D. Ky. Dec. 30, 2014)). Likewise, this Court has considered the two approaches employed
by district courts in the Sixth Circuit and concludes that the “mere existence” of a conflict of
interest is sufficient to allow some discovery outside of the administrative record.
“Generally, courts have allowed discovery regarding whether (i) there is a history of
biased claim denials; (ii) the employer has made measures to reduce bias and promote accuracy;
and (iii) company policies reward or encourage denials.” Kasko, 33 F. Supp. 3d at 788 (citing
Raney v. Life Ins. Co. of N. Am., 2009 U.S. Dist. LEXIS 34098, *3 (E.D. Ky. Apr. 20, 2009)).
As did the Davis court, this Court looks to another recent decision from our district, Gluc, for a
particularized list of “permitted areas of inquiry – topics on which discovery related to an
inherent conflict of interest may be had by an ERISA plaintiff.” Busch, 2010 U.S. Dist. LEXIS
101881 at *9 (quoting Mullins, 267 F.R.D. at 513). That list includes the following:


“incentive, bonus or reward programs or systems formal or
informal for any employees involved in any meaningful way in
reviewing disability claims.” Myers v. Prudential Ins. Co. of
Am., 581 F. Supp. 2d 904, 914 (E.D. Tenn. 2008).



“contractual connections between [plan administrator/payor] ...
and the reviewers utilized in Plaintiff's claim . . . and financial
payments paid annually to the reviewers from the
[administrator/payor].” Pemberton v. Reliance Standard Life
Ins. Co., 2009 U.S. Dist. LEXIS 2070, (E.D. Ky. Jan. 13,
2009).
12



“statistical data regarding the number of claims files sent to the
reviewers and the number of denials which resulted." Id.



“number of times the reviewers found claimants able to work
in at least a sedentary occupation or found that claimants were
not disabled.” Id.



“documentation of administrative processes designed only to
check the accuracy of grants of claims (limited to claims
guidelines actually consulted to adjudicate plaintiff's claims).”

Gluc, 309 F.R.D. at *17-18 (quoting Bird v. GTX, Inc., 2009 U.S. Dist. LEXIS 106301, *8 (W.D.
Tenn. 2009)).
Courts have also identified specific categories of inquiry that are not within the areas of
permitted discovery:
Courts typically refuse to permit discovery into areas falling under
the general category of reviewer credibility. Thornton, 2010 U.S.
Dist. LEXIS at *3. Areas such as employee pay records and
personnel files are not discoverable. Hays v. Provident Life and
Acc. Life Ins. Co., 623 F. Supp. 2d 840, 845 (E.D. Ky. 2008)
(citing Myers, 581 F. Supp. 2d at 915). The professional
background of claim reviewers; whether reviewers have civil or
criminal claims for disciplinary action; or, the history of patient
treatment by medical reviewers also is not subject to discovery.
Raney, 2009 U.S. Dist. LEXIS 34098 at *3; see also Pemberton,
2009 U.S. Dist. LEXIS 2070 at *4 (“[I]nformation regarding the
training and qualifications of the reviewers is unlikely to lead to
evidence concerning either the conflict of interest or bias [so that]
the plaintiff is not entitled to discovery on these issues."); Bird,
2009 U.S. Dist. LEXIS 106301 at *3 (improper areas of inquiry
include: personnel files, performance reviews and pay records of
insurers' employees; and information regarding training and
qualifications of reviewers).
Gluc, 309 F.R.D. at *18-19.
Bearing in mind the standard set forth above, the Court will move on to address the
individual discovery requests propounded by Myers on Anthem. This process is made more
cumbersome by the absence of discovery responses – including objections – from Anthem due to
13

its refusal, albeit understandable, to respond to Myers’s discovery requests before Myers
obtained Court approval as to the contents of her discovery requests. To avoid further delay in
this case, rather than require Myers to effectively move backward and adhere to the terms of DN
9, the Court rules in the instant memorandum opinion and order on Anthem’s obligation to
respond to each of Myers’s interrogatories and requests for production. Rather than resort to
guesswork as to which of Myers’s discovery requests Anthem objects and the basis for any such
objections, and in the hope of avoiding further delay in the progression of this case, the Court
will address each and every discovery request propounded by Myers. The Court expects that this
will provide sufficient explanation for the parties to move forward with the discovery process
with minimal additional Court oversight.

Nonetheless, Anthem retains the right to assert

objections to Myers’s discovery requests, provided that its objections are not inconsistent with
the instant memorandum opinion and order.
ii. Myers’s Purported Instructions to Anthem
Before moving on to Myers’s interrogatories and requests for production, the Court is
compelled to address one issue common to all of her discovery requests. At the top of each page
of Myers’s interrogatories and requests for production appears a text box in which Myers
purports to instruct Anthem as to certain obligations in relation to its discovery responses. The
instructions provide as follows:
Please Note: If Defendant is unclear or has questions concerning a
specific request, as opposed to waiting until the expiration of the
30 day response period, Defendant’s counsel should contact
Plaintiffs’ counsel at an early date to discuss any concerns and/or
to obtain any clarification. Absent any inquiry from Defendant
prior to the expiration of the 30 day response period, Defendant
shall be deemed to have fully understood each request, to have not
14

required any further clarification or explanation, and to have
waived any objections to the request.
(See DN 14-1 at 3, et seq.; DN 14-2 at 3, et seq.) With these instructions to opposing counsel,
Myers purports to assume the role of the Court. The Federal Rules of Civil Procedure and the
Court are the relevant – and only – authorities for the parties’ rights and responsibilities during
the civil discovery.

Litigants and their counsel may not impose additional or inconsistent

obligations on opposing parties.
The Rules do not require Anthem’s counsel to contact Myers’s counsel prior to the
conclusion of the 30-day response period to discuss Anthem’s objections. Nor do the Rules
provide that Anthem “shall be deemed” to have done any of the things included in the last
sentence of Myers’s instructions if its counsel does not contact Myers’s counsel. See Fed. R.
Civ. P. 33(b)(2) (“The responding party must serve its answers and any objections within 30
days after being served with the interrogatories. A shorter or longer time may be stipulated to
under Rule 29 or be ordered by the court.”) (emphasis added); id. at (b)(4) (“The grounds for
objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely
objection is waived unless the court, for good cause, excuses the failure.”); see also Fed. R. Civ.
P. 34(b)(2)(A), (C). In this case, the Court has not imposed any obligations on Anthem that
would go beyond the scope of Rules 33 and 34; the Court certainly has not required Anthem to
adhere to the additional terms that Myers purports to impose.
Accordingly, IT IS HEREBY ORDERED that Anthem may disregard the instructions
that Myers purports to make in the text boxes that appear at the top of each page of her discovery
requests.

15

B. Interrogatories4
i. No. 1. Identify each person making and assisting with Defendant’s
Interrogatory answers. For each person identified, state their full
name, business address, employer, job title (description), and
relationship to Defendant.5
Interrogatory number 1 is a standard request for information regarding the individual(s)
preparing the receiving party’s answers to interrogatories and is permissible under Rule 33 of the
Federal Rules of Civil Procedure.
Accordingly, the Motion for Discovery is GRANTED as to interrogatory number 1.
ii. No. 2. State each defense, including affirmative, Defendant is
asserting or relying on in this action. For each defense, provide the
material facts supporting said defense.
Interrogatory number 2 is what is sometimes referred to as a “contention” interrogatory:
it “seek[s] to clarify the basis for or scope of an adversary’s legal claims.” Davis, 2015 U.S.
Dist. LEXIS 158313 at *15 (quoting Starcher v. Corr. Med. Sys., Inc., 144 F.3d 418, 421 n.2 (6th
Cir. 1998) (subsequent procedural history omitted)).

The “general view is that contention

interrogatories are a perfectly permissible form of discovery, to which a response ordinarily
would be required.” Starcher, 144 F.3d at 421 n.2. The Davis court provided the following
guidance regarding contention interrogatories in the ERISA context:
As one court stated in its opinion concerning discovery in an
ERISA action, “[i]t is widely accepted that ‘contention
interrogatories’ which ask a party to state the facts upon which it
bases a claim or defense, are a permissible form of written
discovery.” Alexander v. Hartford Life & Acc. Ins. Co., 2008 U.S.
Dist. LEXIS 27210, *4 (N.D. Tex. Apr. 3, 2008). Furthermore,
Rule 33(a)(2) of the Federal Rules of Civil Procedure states that
4

At the top of each page of Myers’s interrogatories and requests for production, she provides a

5

Myers’s requests for production of documents and interrogatories are located in the record at DN 14-1 and
14-2, respectively. All discovery requests reprinted herein can be found in those documents.

16

“[a]n interrogatory is not objectionable merely because it asks for
an opinion or contention that relates to fact or the application of
law to fact.” Fed. R. Civ. P. 33(a)(2). “[T]he purpose of the
discovery rules is to bring to light the parties’ positions in an
informed and controlled manner that winnows down the resolution
of a dispute" to show the factual and legal issues.” Burnett &
Morand P'ship v. Estate of Youngs, No. 3:10-CV-3-RLY-WGH,
2011 U.S. Dist. LEXIS 36916, 2011 WL 1237950, at *3 (S.D. Ind.
Apr. 4, 2011). Therefore, when a party is asked to provide
“contention type discovery [the party] must identify the witnesses
and documents he/she has marshaled . . . and to help illuminate the
issues to be resolved as the responses and answers are due.” Id.
Davis, 2015 U.S. Dist. LEXIS 158313 at *15-16.
Anthem must “be able to generally explain the factual basis for each . . . affirmative
defense[] pled in its . . . answer.” Barkley v. Life Ins. Co. of N. Am., 2008 U.S. Dist. LEXIS
11928, *2-3 (N.D. Tex. Feb. 19, 2008). Anthem must provide Myers with an explanation of the
factual basis for each affirmative defense. It is not sufficient to state that the factual bases for its
defenses can be found in the administrative record. See Davis, 2015 U.S. Dist. LEXIS 158313 at
*16-17 (“‘A party who seeks to rely upon the Rule must not only certify that the answer may be
found in the records referenced by it, but also must specify where in the records the answer [can]
be found.’”) (citing Fed. R. Civ. P. 33(d); quoting Mullins, 267 F.R.D. at 514-15).
Accordingly, the Motion for Discovery is GRANTED as to interrogatory number 1.
iii. No. 3. If Defendant is asserting the Court’s standard of review
applicable to Plaintiff’s benefit claim is anything other than de novo
(i.e. that Defendant has discretionary authority):
a. Identify each plan document, and the specific language,
delegating discretionary authority to Defendant; and
b. Identify the individual who exercised discretion on
Defendant’s behalf, and provide their full-name,
business address, employer, job title (description), and
relationship to Defendant.
17

Interrogatory number 3 relates to the standard of review applicable to this case. Anthem
takes issue with interrogatory number 3, stating that discovery as to the “basis for an assertion of
discretionary review” is “far beyond the[] permissible areas of inquiry.” (DN 16 at 7.) Myers
states in her reply that if Anthem were to stipulate that the standard of review in this case
“remains the default de novo standard, there is no need for discovery on the issue.” (DN 18 at 67.) “However, [Myers argues], if Anthem argues the standard has been altered, Mrs. Myers is
entitled to investigate the factual basis for Anthem’s contentions – to obtain appropriate
discovery.” (Id. at 7.)
“A denial of health benefits is to be reviewed by federal courts under a de novo standard,
unless the benefit plan gives the administrator discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.” Shelby County Healthcare Corp. v. Majestic Star
Casino, LLC., 2008 U.S. Dist. LEXIS 23314, *7 (W.D. Tenn. March 20, 2008) (citing Anderson
v. Great West Life Assurance Co., 942 F.2d 392, 395 (6th Cir. 1991)). “Where an ERISA plan
expressly affords discretion to a plan trustee to make benefits determinations, a court reviewing
the plan administrator’s actions applies an arbitrary and capricious standard of review.” Id. at *8
(citation omitted); see also Davis, 2015 U.S. Dist. LEXIS 158313 at *36 (“When the plan gives
the fiduciary or plan administration discretionary authority, an abuse of discretion standard of
review applies.”). As Myers points out, “[t]he plan administrator bears the burden of proving
that the arbitrary and capricious standard applies.” Shelby County Healthcare, 2008 U.S. Dist.
LEXIS 23314 at *8.
To the extent that Anthem contends that an arbitrary and capricious standard of review
should be applied in this case, it must provide Myers with a direct citation to the administrative
18

record, specifically, “the plan.” Such a citation “should be all that [Myers] requires to determine
if there is any delegation of authority as the standard of review is determined by the terms of the
plan itself.” Davis, 2015 U.S. Dist. LEXIS 158313 at *36. Similarly, Myers is entitled to the
information she seeks regarding the individuals who were involved in denying her claim.
Finally, it is worth noting that it is not sufficient for Anthem to point to the entire administrative
record for Myers to locate this information. See id. at *13-14 (“A party who seeks to rely upon
[] Rule [33(d)] must not only certify that the answer may be found in the records referenced by
it, but also must specify where in the records the answers can be found.”) (quoting Cambridge
Elecs. Corp. v. MGA Elecs., Inc., 227 F.R.D. 313, 322-23 (C.D. Cal. 2004) (internal citation
omitted)).
Accordingly, the Motion for Discovery is GRANTED as to interrogatory number 3.
iv. No. 4. Please state the monthly benefit Plaintiff would be entitled to
receive if Plaintiff prevails in this action. The response should include
a detailed calculation of the monthly benefit amount with sufficient
detail for Plaintiff to recreate the calculation, including the source of
each component.
Anthem states that interrogatory number 4 is among those “requests [that] go far beyond
the[] permissible areas of inquiry.” (DN 16 at 6.) Myers states that this is a “simple and straight
forward request,” and “Anthem cannot reasonably claim this is unknown, let alone too
burdensome.” (DN 18 at 7.) She further states that insurers are required to calculate these
amounts upon notice of a claim being filed so that they can set aside reserves. Finally, she
argues that this information “will facilitate any future settlement discussions and limit further
disputes over the amount due” to her. Id.

19

Interrogatory number 4 does not fall within any of the categories of permissible inquiry
that are identified above, nor does it relate to a conflict of interest on Anthem’s part. Moreover,
the Court finds that the question is premature and speculative at this stage in the litigation. See,
e.g., Mullins, 267 F.R.D. at 515 (finding that discovery of attorney’s fees that defendant sought
to discover was “somewhat premature” and denying request for production of such information).
Accordingly, the Motion for Discovery is DENIED as to interrogatory number 4.
v. No. 5. Identify each person who made the final decision to deny
Plaintiff’s claim. For each person, state their full name, business
address, employer, job title (description), relationship to Defendant,
and their manager (i.e. supervisor).
In interrogatory number 5, Myers requests certain identifying information for each person
involved in Anthem’s decision to deny her claim for benefits. Anthem does not appear to
specifically address this interrogatory in its response. (See generally DN 16.) Interrogatories
that are very similar or identical to number 5 have been deemed permissible in recent decisions
from our Court. See, e.g., Davis, 2015 U.S. Dist. LEXIS 158313 at *11-14. With respect to the
categories of discovery that are now routinely deemed permissible, interrogatory number 5 could
go to “a history of biased claim denials,” Kasko, 33 F. Supp. 3d at 788, or “statistical data
regarding the number of claims files sent to the reviewers and the number of denials which
resulted.” Gluc, 2015 U.S. Dist. LEXIS 104242 at *6 (quoting Bird, 2009 U.S. Dist. LEXIS
106301 at *3).
Accordingly, the Court concludes that Myers is entitled to the information she seeks in
interrogatory number 5. Again, as is noted above, it is not sufficient for Anthem to merely direct
Myers to the administrative record to locate this information. “‘The responding party may not
avoid answers by imposing on the interrogating party a mass of business records from which
20

answers cannot be ascertained by a party unfamiliar with them.’” Mullins, 267 F.R.D. at 514
(quoting Cambridge Elecs. Corp., 227 F.R.D. at 322-23 (C.D. Cal. 2004) (internal citation
omitted)). “A party that attempts to rely upon Rule 33(d) with a mere general reference to a
mass of documents or records has not adequately responded.” Id.
Accordingly, the Motion for Discovery is GRANTED as to interrogatory number 5.
vi. No. 6. Identify each person who made the final decision to deny
Plaintiff’s appeal. For each person, state their full name, business
address, employer, job title (description), relationship to Defendant,
and their manager (i.e. supervisor).
Interrogatory number 6 is identical to the preceding interrogatory with the exception of
seeking information regarding the individuals involved in denying Myers’s appeal rather than her
initial claim.

For the reasons set forth above with respect to interrogatory number 5,

interrogatory number 6 is permissible.
Accordingly, the Motion for Discovery is GRANTED with respect to interrogatory
number 6.
vii. No. 7. Describe in detail Defendant’s compensation practices for
disability claim unit personnel.
In interrogatory number 7, Myers requests detailed information regarding Anthem’s
compensation practices for disability unit personnel. Anthem argues in its response that Myers is
not entitled to this information because courts have denied ERISA plaintiffs’ efforts to obtain
individual compensation records. (DN 16 at 10-11.) Critically, Myers requests information
regarding compensation practices, as opposed to compensation for any particular individuals.
The Davis court addressed this issue in detail:
District courts in the Sixth Circuit have developed a list of
permitted areas of inquiry in ERISA discovery. Busch, 2010 U.S.
21

Dist. LEXIS 101881 at *4. The list includes information relating
to “[i]ncentive, bonus or reward programs or systems formal
informal for any employees involved in any meaningful way in
reviewing disability claims.” Gluc, 2015 U.S. Dist. LEXIS 104242
at *6 (citation omitted). Just as courts have a list of areas of
inquiry that are discoverable, courts also have a list of areas of
inquiry that are not discoverable in ERISA actions. Id.; see also
Busch [] at *4. One area of inquiry into which courts do not allow
discovery is employee pay records. Id. (first citing Hays, 623 F.
Supp. 2d at 845; then citing Myers, 581 F. Supp. 2d at 915).
Davis, 2015 U.S. Dist. LEXIS 158313 at *18.
Anthem is correct that it need not provide information regarding compensation paid to
specific employees, as employee pay records are not discoverable. However, interrogatory
number 7 does not request such information; it targets compensation-related programs or systems
that apply across the board to its disability claims personnel. Anthem must provide to Myers
information regarding any incentive, bonus, or reward programs or systems for its disability
claims personnel.
Accordingly, the Motion for Discovery is GRANTED with respect to interrogatory
number 7.
viii. No. 8. Describe in detail Defendant’s performance review procedures
for disability claim unit personnel.
Interrogatory number 8 requests detailed information regarding Anthem’s performance
review procedures for disability claim unit personnel. Anthem argues that courts within the
Sixth Circuit do not permit such inquiries in ERISA cases on the basis that they go to employee
credibility and are not within the delineated scope of permissible ERISA discovery related to
alleged conflicts of interest. (DN 16 at 11-13.) Anthem is correct: “[C]ourts typically have
refused to permit discovery into the areas falling under the general category of ‘reviewer

22

credibility’ (e.g., without limitation, the reviewers’ personnel files or performance reviews,
disciplinary actions, board certifications, educational and professional backgrounds), as those
areas are usually deemed unlikely to lead to evidence of bias or discrimination.” Thornton, 2010
U.S. Dist. LEXIS 7221 (W.D. Ky. Jan. 28, 2010).
Nonetheless, as the Davis court noted, “some courts’ reluctance to grant discovery into a
defendant’s performance review procedures is tempered when the claimant seeks the information
as evidence that a claim’s personnel were pressured to deny claims.” Davis, 2015 U.S. Dist.
LEXIS 158313 at *20 (citing Mulligan, 271 F.R.D. 584, 594 (E.D. Tenn. 2011) (internal citation
omitted). In Mulligan, the Eastern District of Tennessee endorsed a “phased discovery process;”
it did not allow discovery of performance reviews because insurer’s policies expressly prohibited
consideration of claims outcomes in performance reviews, but it declined to state that
performance reviews could never be discoverable. See Mulligan, 271 F.R.D. at 594. In Davis,
the court stated that it was “persuaded by the Mulligan court’s analysis and as such permit[ed]
discovery” of incentive, bonus, or reward programs or systems – as allowed in this case in
relation to interrogatory number 7 – and stated that it may “revisit the issue” if that discovery
material “contains information that suggests the influence of bias.” Davis, 2015 U.S. Dist.
LEXIS 158313 at *20-21.
This Court concurs with the Davis court that this is a well-reasoned approach. At this
juncture, Myers is not entitled to information regarding Anthem’s performance review process.
However, if discovery related to compensation programs leads to a suggestion of the influence of
bias in the disability claims decision process, then the Court is willing to revisit the issue of
performance reviews.
23

Accordingly, the Motion for Discovery is DENIED as to interrogatory number 8.
ix. No. 9. State and explain in detail Defendant’s efforts to minimize
and/or eliminate its structural conflict of interest.
In interrogatory number 9, Myers seeks information regarding any efforts by Anthem to
minimize and/or eliminate its structural conflict of interest. Anthem does not appear to address
this interrogatory in its response. In Raney v. Life Insurance Company of North America, 2009
U.S. Dist. LEXIS 34098, *8-9 (E.D. Ky. April 20, 2009), the Eastern District of Kentucky
permitted discovery on “whether [the defendant] ha[d] taken steps to limit potential bias and
promote accuracy,” reasoning that “[a]llowing this limited discovery [would] aid the Court in
deciding how significant the conflict of interest is in this particular case.” The Court concludes
that this interrogatory is directed toward uncovering whether “the employer has made measures
to reduce bias and promote accuracy,” which is a recognized area of inquiry in an ERISA case in
which a conflict of interest is alleged. Kasko, 33 F. Supp. 3d at 788 (citing Raney, 2009 U.S.
Dist. LEXIS 34098 at *3).
Accordingly, the Motion for Discovery is GRANTED as to interrogatory number 9.
x. No. 10. State each specific reason supporting Defendant’s decision to
deny Plaintiff’s claim. For each stated reason, identify the specific
document in which Defendant notified Plaintiff of the stated reason.
In interrogatory number 10, Myers requests specific reasons asserted by Anthem for its
denial of her claim, as well as identification of specific documents in which Anthem purports to
have notified Myers of each such reason.

Anthem contends that this is one of Myers’s

interrogatories that “go[es] far beyond the[] permissible areas of inquiry.” (DN 16 at 7.)
Pursuant to 29 CFR § 2560.503-1(g)(1), “the plan administrator shall provide a claimant
with a written or electronic notification of any adverse benefit determination.” This regulation
24

also requires that the “notification shall set forth, in a manner calculated to be understood by the
claimant . . . the specific reason or reasons for the adverse determination.” 29 CFR § 2560.5031(g)(1)(i). This Court concurs with the Davis court that a claimant is “entitled to know whether
[the defendant] complied with 29 CFR § 2560.503-1(g)(1), particularly if [the defendant]
provided him [or her] with notice of the specific reasons for its denial.” Davis, 2015 U.S. Dist.
LEXIS 158313 at *26. Consequently, Anthem is required to provide and identify documents in
which it informed Myers of its reason(s) for denying Myers’s benefits claim. Anthem need not
restate each specific reason supporting its decision to deny Myers’s claim, but it must identify
the documents in which it previously notified Myers of its reasoning.
Accordingly, the Motion for Discovery is GRANTED IN PART and DENIED IN
PART with respect to interrogatory number 10.
xi. No. 11. State each specific reason supporting Defendant’s decision to
deny Plaintiff’s appeal. For each stated reason, identify the specific
document in which Defendant notified Plaintiff of the stated reason.
Interrogatory number 11 mirrors the preceding interrogatory except that it seeks
Anthem’s specific reasons for denying Myers’s appeal rather than her initial claim.

The

reasoning set forth above regarding number 10 applies equally to number 11.
Accordingly, the Motion for Discovery is GRANTED IN PART and DENIED IN
PART with respect to interrogatory number 11.
xii. No. 12. Identify each medical opinion (e.g. medical record review,
medical examination, functional capacity evaluation, etc.) Defendant
obtained as part of its decision to deny Plaintiff’s claim. For each
medical opinion:
a. Provide the name of the entity providing the medical
opinion (e.g. MES, MCMC, MLS, RRS, etc.);
25

b. Describe in detail Defendant’s relationship with the
entity;
c. Describe in detail Defendant’s efforts to ensure the
entity provides unbiased medical opinions, the entity
complies with the terms of the policy;
d. Describe in detail the compensation Defendant paid to
the entity for the medical opinion;
e. Describe in detail Defendant’s guidelines/instructions
provided to the entity concerning the medical opinion.
In interrogatory number 12, Myers requests a significant amount of information regarding
the medical opinions obtained by Anthem in its process of denying her claim. Anthem does not
appear to contest Myers’s entitlement to such information. (See generally DN 16.) Indeed, the
Court concludes that Anthem must produce the information requested by Myers in interrogatory
number 12. “The history of remuneration flowing to third-party service providers and the
statistics concerning the number of claims reviewed in relation to the number of claims denied is
now [in light of the Glenn decision] ‘fair game’ for discovery.” Mullins, 267 F.R.D. at 517; see
also Davis, 2015 U.S. Dist. LEXIS 158313 at *23 (“ERISA claimants may seek discovery
related to ‘third-party vendors whose opinions or reports may have been unduly influenced by
financial incentives.’”) (quoting Gluc, 2015 U.S. Dist. LEXIS 104242 at *8). “[I]nformation
concerning the economic connection between [a third-party reviewer] and [Anthem] is exactly
the type of information relating to potential bias that district courts have now determined to be
discoverable in this circuit.” Mullins, 267 F.R.D. at 517-18. The Court notes that “inquiry into
the professional qualifications of [third-party] reviewers appears to remain outside the scope of
discovery,” however, as the Mullins court noted, such credentials are typically set forth on the
face of medical reports. Mullins, 267 F.R.D. at 517; see also Davis, 2015 U.S. Dist. LEXIS
26

158313 at *23 (“This includes information such as the training and qualifications of the
reviewers, whether the reviewers have faced criminal charges, civil suits, or disciplinary action,
whether the reviewers failed to become board-certified, or whether the reviewers recently treated
patients.”) (internal citations omitted).
In answering interrogatory number 12, Anthem shall adhere to the following guidance
from the Davis court:
[Anthem] should respond to the interrogator[y] with information
concerning its contractual connections to the third parties and the
financial payments paid to them annually along with information
concerning any documentation of administrative processes
designed only to check the accuracy of grants of claims. However,
[Anthem] is not required to provide any response with regards to
the credibility or professional backgrounds of the third parties.
[Anthem] is also not required to provide documents pertaining to
other claimants as those documents are not relevant to [Myers’s]
claims, and they would undoubtedly contain confidential
information “that could not be produced without raising serious
HIPAA and privacy concerns that make production of such
documents far more burdensome than potentially relevant.”
Davis, 2015 U.S. Dist. LEXIS 158313 at *24 (quoting Mullins, 267 F.R.D. at 522).
Finally, to the extent that any of the information requested in this interrogatory and for
which a response is required may be found in the administrative record, Anthem must identify its
location therein. See Mullins, 267 F.R.D. at 514 (“A party that attempts to rely upon Rule 33(d)
with a mere general reference to a mass of documents or records has not adequately
responded.”).
Accordingly, the Motion for Discovery is GRANTED as to interrogatory number 12,
subject to the parameters set forth herein.
xiii. No. 13. Identify each medical opinion (e.g. medical record review,
medical examination, functional capacity evaluation, etc.) Defendant
27

obtained as part of its decision to deny Plaintiff’s appeal. For each
medical opinion:
a. Provide the name of the entity providing the medical
opinion (e.g. MES, MCMC, MLS, RRS, etc.);
b. Describe in detail Defendant’s relationship with the
entity;
c. Describe in detail Defendant’s efforts to ensure the
entity provides unbiased medical opinions, the entity
complies with the terms of the policy;
d. State and describe in detail the compensation Defendant
paid to the entity for the medical opinion;
e. Describe in detail Defendant’s guidelines/instructions
provided to the entity concerning the medical opinion.
Interrogatory number 13 is identical to number 12, but for its reference to the denial of
Myers’s appeal rather than her initial claim.

For the reasons set forth above regarding

interrogatory number 12, Myers is entitled to receive the information she seeks in number 13.
Accordingly, the Motion for Discovery is GRANTED as to interrogatory number 13,
subject to the parameters set forth above in the discussion of interrogatory number 12.
xiv. No. 14. With respect to each entity providing a medical opinion:
a. State the number of medical opinions provided to
Defendant;
b. State the total compensation Defendant paid to the
entity to date;
c. State the number of medical opinions that supported
Defendant’s decision to deny a claim;
d. State the number of medical opinions that did not
support Defendant’s decision to deny a claim;

28

In interrogatory number 14, Myers requests statistical information regarding third-party
vendors. Again, Anthem does not appear to dispute Myers’s right to such information; indeed, it
recognizes that “statistical data regarding the number of claims files sent to the reviewers and the
number of denials which resulted” is one of the “generally permissible areas” of inquiry
recognized by district courts in the Sixth Circuit. (DN 16 at 7.) By propounding interrogatories
such as number 14, ERISA plaintiffs are attempting to establish a history of biased claim
administration. Kasko, 33 F. Supp. 3d at 789. “District courts in Kentucky widely acknowledge
that the statistical information and financial information sought by [Myers] in interrogator[y
number] 14[] is permissible in discovery.” Davis, 2015 U.S. Dist. LEXIs 158313 at *29 (citing
Gluc, 2015 U.S. Dist. LEXIS 104242 at *6; Kasko, 33 F. Supp. 3d at 789; Busch, 2010 U.S. Dist.
LEXIS 101881 at *4).
Looking to the Davis court once again, the following reasoning is instructive:
Courts reason that “if [insurers] relied on third-party reviewers
whose opinions or reports may have been unduly influenced by
financial incentives, the [c]ourt would benefit from information
revealing the compensation arrangement.” Kasko, 33 F. Supp. 3d
at 789 (quoting Crider v. Life Ins. Co. of N. Am., 2008 U.S. Dist.
LEXIS 6715, *6 (W.D. Ky. Jan. 29, 2008). Notably, “[t]he
financial
incentives,
combined
with
the
physicians'
recommendations, could assist the Court in resolving an allegation
of biased claim administration.” Id. Courts have allowed
discovery of this statistical information to span up to a ten-year
period. See id. (citing Pemberton, 2009 U.S. Dist. LEXIS 2070,
*4.) As this Court stated previously, courts in the Sixth Circuit
generally allow discovery of the following:
• “contractual connections between [plan administrator/payor]
... and the reviewers utilized in Plaintiff's claim . . . and
financial payments paid annually to the reviewers from the
[administrator/payor].” Pemberton, 2009 U.S. Dist. LEXIS
2070, *3.
29

• “statistical data regarding the number of claims files sent to
the reviewers and the number of denials which resulted.” Id.
• “number of times the reviewers found claimants able to work
in at least a sedentary occupation or found that claimants were
not disabled.” Id.
This Court finds the reasoning of its fellow district courts in
Kentucky persuasive and, therefore, will require Hartford to
provide the financial and statistical information Davis has
requested in interrogatories 14-18 with the caveat that Hartford
need not provide information that spans a time period longer than
ten years.
Id. at *29-30. Likewise, this Court finds that the information sought in interrogatory number 14
is well within the scope of discovery requests deemed permissible by district courts in our
circuit. The Court further finds that it is appropriate to limit Anthem’s obligation to respond to a
ten-year time period.
Accordingly, the Motion for Discovery is GRANTED as to interrogatory number 14 for
the years 2006 to present.
xv. No. 15. For each individual providing a medical opinion (“reviewer”):
a. Provide the reviewer’s full name, business address,
employer, job title (description), and relationship (if
any) with Defendant;
b. State and explain in detail the process by which the
reviewer was selected;
c. State and explain in detail the steps taken to ensure the
reviewer had “appropriate training and experience in
the field of medicine involved in the medical judgment”
as required by 29 CFR 2560.503-1.
d. State the number of medical opinions the reviewer has
provided to Defendant;

30

e. State the number of medical opinions the reviewer has
provided to Defendant that supported Defendant’s
decision to deny a claim;
f. State the number of medical opinions the reviewer has
provided to Defendant that did not support Defendant’s
decision to deny a claim;
g. State and describe in detail the compensation reviewer
was paid for the medical opinion provided to
Defendant;
h. State the total compensation reviewer has been paid to
date for medical opinions provided to Defendant.
i. State and explain in detail the steps taken to ensure the
reviewer’s report was not altered and/or edited prior to
submission to Defendant.
In interrogatory number 15, Myers seeks information regarding the individuals who
provided medical opinions in her case. Much of the information she seeks is permissible for the
same reasons that the Court grants the Motion for Discovery with respect to interrogatory
numbers 12, 13, and 14. However, the Court must limit number 15 to some extent.
In a recent memorandum opinion and order entered by United States Magistrate Judge H.
Brent Brennenstuhl, Owens v. Liberty Life Assurance Company of Boston, Civil Action No.
4:15-cv-71-JHM (DN 26), the court addressed an interrogatory that was identical to interrogatory
number 15 in this case. (See DN 39 (filing Owens opinion as supplemental authority).) In
Owens, the court reasoned that the statistical information requested in interrogatory number 15 is
largely admissible. However, the court disallowed the subparts seeking information as to “the
process by which the reviewer was selected and the steps taken to ensure the reviewer has
appropriate medical training” – here, subparts (b) and (c) – concluding that they constituted
“impermissible ‘reviewer credibility’ inquiries.” (DN 39-1 at 18; Owens, Civil Action No. 4:1531

cv-00071-JHM.) The court further limited the defendant insurer’s obligation to respond to a
time period of ten years. The Court concurs with the Owens court’s analysis and concludes that,
with the exceptions of subparts (b) and (c), the information sought in interrogatory number 15 is
permissible pursuant to recent precedent from district courts in our circuit.
Accordingly, the Motion for Discovery is GRANTED IN PART and DENIED IN
PART as to interrogatory number 15. Subparts (b) and (c) are disallowed, and Anthem need
only provide responsive information from 2006 to present.
xvi. No. 16. State and describe in detail, Defendant’s procedures
“governing the filing of benefit claims, notification of benefit
determinations, and appeal of adverse benefit determinations
(hereinafter collectively referred to as claims procedures).”
In interrogatory number 16, Myers requests detailed information as to Anthem’s
procedures regarding claims procedures, which it defines as those procedures governing filing of
benefits claims, notifications of determinations, and appeals of adverse determinations.

In

support of this interrogatory, Myers cites 29 CFR 2560.503-1(b), which requires plans to
establish and maintain reasonable procedures governing the filing of benefit determinations, and
appeal of adverse benefit determinations.
Anthem appears not to dispute this particular interrogatory in its response. (See generally
DN 16.) However, the Court finds persuasive the reasoning employed in two recent decisions
denying similar or identical interrogatories on the basis that they were not narrowly tailored to
the facts of the case. In Davis, the court concluded that a very similar request was “overly
broad” in that it sought general claims procedures without any showing that such procedures
were relied upon or considered in deciding the plaintiff’s claims. Davis, 2015 U.S. Dist. LEXIS
158313 at *31-34; see id. at *33-34 (“In addition to the cases that Hartford cites in its Response,
32

the Court found several other cases in which courts have refused to compel production of an
insurer’s entire manual or guidelines or other administrative materials and instead required
production only of those administrative materials used in processing the claimant’s claim for
benefits.”) (citing Hatfield v. Life Ins. Co. of N. Am., 2015 U.S. Dist. LEXIS 131022 (E.D. Ky.
Sept. 9, 2015); McQueen, 595 F. Supp. 2d at 755 n.2; Byrd, 2008 U.S. Dist. LEXIS 29615 at *2).
In Owens, the court denied a motion for discovery related to an interrogatory that was identical
to interrogatory number 16 due to the plaintiff’s “failure to address the specific relevance of the
request set forth in [the] interrogatory[.]” (DN 39-1 at 19; Owens, Civil Action No. 4:15-cv00071-JHM.)
Accordingly, the Motion for Discovery is DENIED as to interrogatory number 16.
xvii. No. 17. State and describe in detail the specific training Defendant
provides to its disability claims personnel, including those individuals
involved with Plaintiff’s claim.
In interrogatory number 17, Myers requests information on the training provided by
Anthem to its disability claims personnel, including the individuals involved in her claim.
Anthem argues that Myers is not entitled to discovery on this issue, as it is simply another
attempt to obtain information that goes to the credibility of reviewers. (DN 16 at 13-14.)
Anthem is correct in part.
As the Gluc and Davis courts discussed in some depth, “[c]ourts typically refuse to
permit discovery into areas falling under the general category of reviewer credibility.” Gluc, 309
F.R.D. at 414 (quoting Thornton, 2010 U.S. Dist. LEXIS 7221 at *3) (quotation marks omitted).
“Information regarding the training and qualifications of the reviewers is unlikely to lead to
evidence concerning either the conflict of interest or bias;” therefore, courts have routinely

33

refused to permit discovery on such issues. Pemberton, 2009 U.S. Dist. LEXIS 2070 at *4
(citation omitted); see also Bird, 2009 U.S. Dist. LEXIS 106301, *9 (including “information
regarding the training and qualifications of the [r]eviewers” among improper areas of inquiry,
absent “further showing of relevance”). Despite the general disallowance of discovery requests
regarding training, such requests are permissible when limited to information relevant to the
particular plaintiff involved. Specifically, a plaintiff may request training supplied to disability
claims personnel who participated in the handling of that plaintiff’s claim. See Mullins, 267
F.R.D. at 520 (“Mullins is entitled to know specifically what training such claims professionals
received relevant to the subject matter of the interrogatory . . . .); id. at 521 (stating that
production of materials regarding claims personnel training “would not appear to the Court to
necessarily bear directly on any potential bias of those employees who were directly involved in
the administration of Mullins’[s] own claim”).
In this case, interrogatory number 17 is not limited to those individuals who participated
in the determination of Myers’s claim. Based on the foregoing discussion, Anthem is not
required to respond as to any general training procedures; but rather, it must provide information
regarding relevant training undergone by personnel who were involved in Myers’s case.
Accordingly, the Motion for Discovery is GRANTED IN PART and DENIED IN
PART. It is granted insofar as it relates to the personnel who were involved in denying Myers’s
claim or appeal and denied as to any other individuals or as to generally applicable training
procedures.
xviii. No. 18. Identify each “document, record or other information” that
demonstrates Defendant’s “compliance with the administrative
processes and safeguards required” by the claim regulations when
“making the benefit determination.” For each document identified,
34

state and explain in detail Defendant’s efforts to comply with the
administrative processes.
In interrogatory number 18, Myers requests that Anthem identify all materials
demonstrating its compliance with administrative processes and safeguards when making her
benefits determination, as well as its efforts to comply therewith. As is noted above, district
courts in this circuit recognize the following as among the permissible areas of inquiry:
“documentation of administrative processes designed only to check the accuracy of grants of
claims (limited to claims guidelines actually consulted to adjudicate the plaintiff’s claim).”
Clark, 871 F. Supp. 2d at 660. In Owens, the court again dealt with an interrogatory identical to
number 18 in this case. The court’s analysis is instructive:
The district court in Howard v. Hartford Life & Accident Ins. Co.[]
ruled that it was reasonable to require production of “documents
that reflect Defendant’s disability claims procedures, if any, that
‘contain administrative processes and safeguards designed to
ensure and to verify that benefit claim determinations are made in
accordance with governing plan documents and that, where
appropriate, the plan provisions have been applied consistently
with respect to similarly situated claimants.’” 2011 U.S. Dist.
LEXIS 68951, *9 (M.D. Fla. June 27, 2011) (quoting 29 CFR
2560.503-1(b)(5)). This recognition of a general right to discovery
of administrative processes and safeguards is echoed in Mullins, in
which the court granted a motion to compel a defendant’s
description in detail of its administrative processes and safeguards
designed to ensure and verify that benefit claim determinations are
made in accordance with the governing plan documents. Mullins,
267 F.R.D. at 519-20.
(DN 39-1 at 20, Owens, Civil Action No. 4:15-cv-00071-JHM.)
Based on the foregoing, the Court concludes that the information that Myers requests in
interrogatory number 18 is discoverable, and therefore, the Motion for Discovery is GRANTED
as to interrogatory number 18.
35

xix. No. 19. Identify each document which “constitutes a statement of
policy or guidance with respect to the plan concerning the denied . . .
benefit for the claimant's diagnosis, without regard to whether such
advice or statement was relied upon in making the benefit
determination.” For each document identified, state and explain in
detail Defendant’s efforts to comply with the policy statements and/or
guidance.
Finally, in interrogatory number 19, Myers requests documents constituting a statement
of policy or guidance with respect to the plan concerning her denied benefit, regardless of
whether the policy or guidance was relied upon in denying her claim. She further requests
explanations as to Anthem’s efforts to comply therewith. In support of this interrogatory, Myers
cites 29 CFR 2560.503-1(m)(8)(iv), which provides as follows:
A document, record, or other information shall be considered
“relevant” to a claimant’s claim if such document, record, or other
information . . . [i]n the case of a group health plan or a plan
providing disability benefits, constitutes a statement of policy or
guidance with respect to the plan concerning the denied treatment
option or benefit for the claimant’s diagnosis, without regard to
whether such advice or statement was relied upon in making the
benefit determination.
29 CFR 2560.503-1(m)(8)(iv).
Anthem does not appear to address interrogatory number 19 in its response to the Motion
for Discovery. (See generally DN 16.) The Owens court addressed an identical interrogatory,
finding that the regulation cited by Myers recognizes, by its terms, that the materials covered by
this interrogatory are “relevant.” (DN 39-1 at 21, Owens, Civil Action No. 4:15-cv-00071-JHM.)
The court granted the motion for discovery as to that interrogatory, noting that the defendant
“failed to articulate a basis . . . for why it should not identify the subject documents.” (Id.) This
Court concurs with the Owens court’s reasoning.
Accordingly, the Motion for Discovery is GRANTED as to interrogatory number 19.
36

C. Requests for Production
Myers’s requests for production begin with the following general request: “Defendant is
requested to produce each material document for the following areas of inquiry[.]” (DN 14-1 at
5.)
i. No. 1. Defendant’s answer to the complaint, including defenses
and affirmative defenses.
The rationale for granting the Motion for Discovery in relation to interrogatory number 2,
seeking a statement of reasons underlying Anthem’s defenses, applies with equal force to request
for production number 1.
Accordingly, the Motion for Discovery is GRANTED as to request for production 1.
ii. No. 2. Defendant’s answers and responses to written discovery.
Myers is entitled to production of any and all documents upon which Anthem relies in
crafting its answers to interrogatories. Specifically, to the extent that the Court has ordered
Anthem in the instant memorandum opinion and order to respond to Myers’s interrogatories,
Anthem must produce any and all documents – outside of the administrative record – upon
which it relies in responding to such interrogatories. See Mullins, 267 F.R.D. at 520 (requiring
the defendant to produce any documents to which it “in its interrogatory responses referred . . .
outside the administrative record); see also DN 39-1 at 22, Owens, Civil Action No. 4:15-cv00071-JHM.
Accordingly, the Motion for Discovery is GRANTED as to request for production 2, to
the extent that it references such interrogatories related to which the Court has ordered Anthem
to respond, and to the extent that Anthem refers to documents outside of the administrative
record in crafting such responses.
37

iii. No. 3. Each audio and/or video recording relating to Plaintiff’s claim
or appeal.
Anthem does not appear to object to request for production 3, and the Court is not
otherwise aware of any reason why Anthem should not be required to produce the materials
requested therein, to the extent that they exist and are in Anthem’s custody or control.
Accordingly, the Motion for Discovery is GRANTED as to request for production 3.
iv. No. 4. Correspondence with legal counsel prior to the date of the
lawsuit.
It appears to the Court from the citations offered by Myers in support of request for
production 4 that the premise for this request is her now-defunct claim under 29 U.S.C. §
1132(a)(3). The Court previously ordered that Anthem need not respond to any discovery
requests related to that claim. (See DN 32.)
Accordingly, the Motion for Discovery is DENIED as to request for production 4.
v. No. 5. Each document demonstrating any delegation of discretionary
authority.
As is explained in this memorandum opinion in reference to interrogatory number 3, the
plan itself should be all that a plaintiff requires to determine if there is any delegation of
discretionary authority. Additionally, in granting the Motion for Discovery with respect to
interrogatory number 3, the Court ordered Anthem to point to the precise location in the
administrative record where any delegation of discretionary authority may be found.
Accordingly, the Motion for Discovery is DENIED as to request for production number
5.

38

vi. No. 6. If documents have been withheld based on privilege, a privilege
log.
Anthem does not specifically address request for production number 6 in its response
(DN 16) to the Motion for Discovery. However, it does purport to retain the right to “make any
additional objections allowable under FRCP 26 and all applicable case[]law, including but not
limited to . . . work product and/or attorney-client privilege, and any other applicable privileges,
after review of the pertinent documents.” (DN 16 at 18.)
Rule 26(b)(5)(A)(ii) of the Federal Rules of Civil Procedure imposes on Anthem a duty
to disclose the existence and identity of any documents which are relevant to a discovery request
but which have been withheld due to a claim of privilege or work product protection. Further,
the rule directs the withholding party to “describe the nature of the documents, communications,
or tangible things not produced or disclosed – and do so in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess the claim.” Fed. R.
Civ. P. 26(b)(5)(A). It is possible that there are no documents in this case that fall within the
scope of Rule 26(b)(5)(A), but to the extent that such documents exist, Anthem must identify
them through a privilege log. (See DN 39-1 at 24, Owens, Civil Action No. 4:15-cv-00071-JHM
(citing Jones v. Life Ins. Co. of N. Am., 2015 U.S. Dist. LEXIS 134945, *9 (N.D. Cal. Oct. 2,
2015)).)
Accordingly, the Motion for Discovery is GRANTED as to request for production 6.
vii. No. 7. Documents, records, and other information relevant to the
Plaintiff’s claim for benefits.
Request for production number 7 is a broad request for all records and other materials
relevant to Myers’s benefits claim. In support of this request, Myers cites 29 CFR 256.50339

1(h)(iii), which provides that “a claimant shall be provided, upon request and free of charge,
reasonable access to, and copies of, all documents, records, and other information relevant to the
claimant’s claim for benefits.” As the Davis court cautioned, “discovery is to be limited to the
conflict of interest and allegation of bias.”

Davis, 2015 U.S. Dist. LEXIS 158313, *9.

Discovery requests seeking “any and all relevant” documents or other materials are often
overbroad and vague. See, e.g., Babcock Power, Inc. v. Kapsalis, 2015 U.S. Dist. LEXIS
172773, *15-16 (W.D. Ky. Dec. 29, 2015). As is discussed herein, Myers is entitled to receive a
copy of her entire claims file. However, the Court finds that she is not entitled to a “global
production of all documents ‘relevant to her claim’ [as] she has failed to demonstrate a
relationship between the request and the subjects of discovery in this case.” (DN 39-1 at 25;
Owens, Civil Action No. 4:15-cv-00071-JHM.)
Accordingly, the Motion for Discovery is GRANTED IN PART and DENIED IN
PART as to request for production number 7. It is granted insofar as Myers seeks a copy of her
entire claims file. It is denied insofar as she requests a global production of all documents
relevant to her claim.
viii. No. 8. Internal rules, guidelines, protocols or other similar criterion
relied upon in making the adverse determination on Plaintiff’s claim.
In request for production number 8, Myers seeks any internal rules, guidelines, protocols,
and the like upon which Anthem relied in denying her claim.

A claimant is entitled to

production of administrative materials used in processing her claim for benefits, but is not
entitled to administrative materials that were not relied upon in relation to her case. See, e.g.,
Davis, 2015 U.S. Dist. LEXIS 158313, *34 (“[T]his Court found several other cases in which
courts have refused to compel production of an insurer’s entire manual or guidelines or other
40

administrative materials and instead required production only of those administrative materials
used in processing the claimant’s claim for benefits.”) (citations omitted).
Accordingly, the Motion for Discovery is GRANTED as to request for production
number 8.
ix. No. 9. Claim administration materials and manuals utilized by, or
available to, the long term disability claims unit.
In request for production number 9, Myers seeks claim administration materials and
manuals utilized by, or available to, the long term disability claims unit. Based on the same
reasoning applied in relation to request for production numbers 7 and 8, the Court finds that
Myers is entitled to production of claim administration materials and manuals that were used in
processing Myers’s claim. She is not entitled to production of such materials if they were not
utilized by the claims unit in relation to her claim.
Accordingly, the Motion for Discovery is GRANTED IN PART and DENIED IN
PART as to request for production number 9.

It is granted insofar as it requests claim

administration materials and manuals utilized by the long term disability claims unit in
processing Myers’s claim. It is denied insofar as it requests such materials that were merely
available to, but not utilized by, the claims unit in processing Myers’s case; it is also denied
insofar as it requests such materials that were utilized by or available to the claims unit in
relation to other cases.
x. No. 10. Training materials and manuals utilized by, or available to,
the long term disability claims unit.
Request for production number 10 is identical to number 9, except that the former
requests training materials and manuals. The reasons set forth herein in relation to request for
41

production numbers 7, 8, and 9 applies equally to number 10.
Accordingly, the Motion for Discovery is GRANTED IN PART and DENIED IN
PART as to request for production number 10. It is granted insofar as it requests training
materials and manuals utilized by the long term disability claims unit in processing Myers’s
claim. It is denied insofar as it requests such materials that were merely available to, but not
utilized by, the claims unit in processing Myers’s case; it is also denied insofar as it requests such
materials that were utilized by or available to the claims unit in relation to other cases.
xi. No. 11. Disability claim unit organizational structure.
In request for production number 11, Myers requests that Anthem provide documents
related to the disability claim unit organizational structure. The Court finds persuasive the Davis
court’s analysis on an identical request:
Davis correctly notes that the court in Gluc recently found that “the
organizational structure of the claims and appeals units is fair game
for discovery.” 2015 U.S. Dist. LEXIS 104242, *7. Like the court
in Gluc, this Court agrees that Davis “is entitled to have a basic
understanding of the organizational structure of both the claims
and appeals units” of Hartford. This information will allow Davis
to ensure that there is not substantial overlap in violation of 29
CFR 2560.503-1(h)(3)(ii), which mandates that the employee who
reviews an adverse benefits determination that is the subject of an
appeal nor is he or she the subordinate of such individual.
Davis’s request is relevant, and the documents will be helpful in
his determination of whether or not Hartford’s decision makers are
in fact separate and distinct. However, as the Court cautioned in
Gluc, Hartford “is not required to produce every single document
within its possession, custody or control that may touch in any
fashion upon the structure of the claims unit and appeals unit.” Id.
at *8. 29 CFR 2560.503-1(h)(3)(ii) is meant to ensure that the
same individual does not initially deny a claimant’s benefits and
then also consider the claimant’s appeal. Id.
Davis, 2015 U.S. Dist. LEXIS 158313, *37-38.
42

Accordingly, the Motion for Discovery is GRANTED as to request for production
number 11, with the caveat that Anthem “need only provide [Myers] with documents that
identify the individuals along with their job titles in [] the claims unit . . . at the time [Anthem]
denied [Myers’s] claim for benefits . . . .” Id. at *38-39.
xii. No. 12. Disability appeal unit organizational structure.
Request for production number 12 is identical to number 11, except that the former
applies to the organizational structure of the appeal unit rather than the claim unit. The same
reasoning applies to both requests.
Accordingly, the Motion for Discovery is GRANTED as to request for production
number 12, with the caveat that Anthem “need only provide [Myers] with documents that
identify the individuals along with their job titles in . . . the appeals unit . . . at the time [Anthem]
denied [Myers’s] . . . appeal of the adverse benefits decision.” Id. at *38-39.
xiii. No. 13. Specific compensation, including calculations and supporting
documents, for each person involved with Plaintiff’s claim.
In request for production number 13, Myers requests specific information and documents
related to the compensation of the individuals involved with her claim. Anthem strongly objects
to this request as being beyond the scope of permissible discovery in ERISA actions. (DN 16 at
10-11.) As is discussed above in relation to interrogatory number 7, ERISA plaintiffs are not
entitled to discovery regarding the compensation of individual employees.
Accordingly, for the reasons set forth above in relation to interrogatory number 7
regarding compensation of individual employees, the Motion for Discovery is DENIED as to
request for production number 13.

43

xiv. No. 14. Performance reviews for each person involved with Plaintiff’s
claim.
In request for production number 14, Myers requests performance reviews for each
individual involved in her claim. The Court’s analysis above in relation to interrogatory number
8 is equally applicable to request for production number 14.
Accordingly, for the reasons set forth above in relation to interrogatory number 8, the
Motion for Discovery is DENIED as to request for production number 14.
xv. No. 15. Each document identifying Defendant’s administrative
processes and safeguards designed to ensure the fair and proper
administration of claims.
In request for production number 15, Myers requests production of documents identifying
Anthem’s administrative processes and safeguards designed to ensure that the administration of
claims is fair and proper. The Court’s analysis above in relation to interrogatory number 18 is
equally applicable to request for production number 15.
Accordingly, for the reasons set forth above in relation to interrogatory number 18, the
Motion for Discovery is GRANTED as to request for production number 15.
xvi. No. 16. Each entity providing a medical opinion (“reviewer”),
including, but not limited to:
a. Contracts – including, but not limited to, compensation
and instructions or guidelines given on how to perform
review;
b. Draft and final reports, including all edits, audits, and
quality review;
c. Dictated opinions (recordings and actual draft from
dictation);
d. Correspondence between the entity and insurer (emails,
notes, letters, etc.);
44

e. Documents provided to the entity relating to Plaintiff’s
claim;
f. Documents identifying the number of times Defendant
has used the entity and the number of times the entity
has found the claimant disabled or able to perform a
sedentary occupation.
In request for production number 16, Myers seeks production of documents regarding
entities that provided medical opinions related to her claim. The request encompasses contracts,
draft and final reports, dictated opinions, correspondence, documents provided to the entity
related to Myers’s claim, and documents showing statistics regarding the entity’s findings in past
claims. Consistent with the Court’s findings above regarding the relationship between Anthem
and third-party reviewers, and consistent with the Court’s sister courts’ rulings in Gluc, Davis,
and Owens, the materials sought in request for production number 16 are discoverable. The list
of permitted areas of inquiry recognized by district courts in the Sixth Circuit “includes
information relating to the ‘[c]ontractual connections between [Anthem] and the reviewers
utilized in the plaintiff’s claim, and financial payments paid annually to the reviewers.’” Davis,
2015 U.S. Dist. LEXIS 158313, *23 (citing Busch, 2010 U.S. Dist. LEXIS 101881, *4) (citation
omitted). Finally, the limitations set forth above regarding (1) the non-discoverability of matters
going to credibility or professional backgrounds of the third parties; and (2) the ten-year time
frame for statistical information apply to request for production number 16.
Accordingly, the Motion for Discovery is GRANTED as to request for production
number 16, subject to the limitations set forth above regarding (1) third-party reviewers’
credibility and professional backgrounds; and (2) the ten-year time frame for statistical
information.
45

xvii. No. 17. Each individual providing a medical opinion (“reviewer”),
including, but not limited to:
a. Contracts – including, but not limited to, compensation
and instructions or guidelines given on how to perform
review;
b. Draft and final reports, including all edits, audits, and
quality review;
c. Dictated opinions (recordings and actual draft from
dictation);
d. Correspondence between the reviewer and insurer
(emails, notes, letters, etc.);
e. Documents provided to the reviewer relating to
Plaintiff’s claim;
f. Documents identifying the number of times Defendant
has used the reviewer and the number of times the
reviewer has found the claimant disabled or able to
perform a sedentary occupation.
Request for production number 17 is identical to number 16, except that the former
relates to individual medical reviewers rather than the entities providing the medical opinions.
Consequently, the same reasoning applied to number 16 applies to number 17.
Accordingly, the Motion for Discovery is GRANTED as to request for production
number 17, subject to the limitations set forth above regarding (1) third-party reviewers’
credibility and professional backgrounds; and (2) the ten-year time frame for statistical
information.

46

xviii. No. 18. For each review provided to Defendant by each entity used in
this Plaintiff’s claim and appeal, in the relevant time period, provide a
copy of the final report. To protect confidentiality, Defendant may
redact the individual’s name, SSN, and date of birth, provided there is
means by which to identify the individual should the need arise.
In request for production number 18, Myers requests copies of each review provided in
relation to request for production number 16. Myers states that Anthem may redact the name,
Social Security Number, and date of birth of the individual subjects of such reviews, so long as
there is some means to identify the individuals if needed.
The Court touched on this issue in its discussion of interrogatory number 12. As is stated
above, Anthem is “not required to provide documents pertaining to other claimants as those
documents are not relevant to Myers’s claims, and they would undoubtedly contain confidential
information ‘that could not be produced without raising serious HIPAA and privacy concerns . . .
.’”

Davis, 2015 U.S. Dist. LEXIS 158313 at *24 (quoting Mullins, 267 F.R.D. at 522).

Moreover, Myers’s direction that Anthem is free to redact sensitive identifying information – yet
presumably create another system to identify claimants included in the requested documents –
does not entitle her to receive these documents. The process of redacting sensitive information
would “make production of such documents far more burdensome than potentially relevant.”6
Id. (quoting Mullins, 267 F.R.D. at 522).

6

The Court notes that the supporting citations provided by Myers in support of request for production
numbers 18 and 19 are, at best, of questionable relevance, and at worst, misleading. For example, the quotation to
Back v. Hartford Life & Accident Insurance Company, 2010 U.S. Dist. LEXIS 144907, *14 (E.D. Mich. July 1,
2010), states a general observation and is not related to the documents requested in numbers 18 and 19. (See DN 14
at 10 n.19.) The quotation to Knox v. Prudential Insurance Company of America, 2014 U.S. Dist. LEXIS 42897, 11
(W.D. Ky., Mar. 28, 2014), is from a single sentence regarding three requests for production and does not include
any context as to what materials the requesting party sought. (See id.) Finally, the quotation from Benson v.
Hartford Life & Accident Insurance Company, 2011 U.S. Dist. LEXIS 9808, 32 (D. Utah, Jan. 28, 2011) is, by its
terms, inapplicable to request for production numbers 18 and 19, which seek individual reviews, whereas the Benson
court was specifically addressing “broad, general, non-case specific information . . . .” (See id.) Myers would do

47

Accordingly, the Motion for Discovery is DENIED as to request for production number
18.
xix. No. 19. For each review provided to Defendant by each individual
medical reviewer used in this Plaintiff’s claim and appeal, in the
relevant time period, provide a copy of the final report. To protect
confidentiality, Defendant may redact the individual’s name, SSN,
and date of birth, provided there is means by which to identify the
individual should the need arise.
Request for production number 19 is identical to request for production number 18,
except that the former relates to individual reviewers rather than the entities providing the
medical opinions. Consequently, the same reasoning applied to number 18 applies to number 19.
Accordingly, the Motion for Discovery is DENIED as to request for production number
19.
2. Motion to Strike and Motion for Sanctions
The events and arguments underlying Anthem’s motion to strike (DN 36) are set forth
above in the “Background” section. Anthem argues that Myers’s reply in support of her use of
the Davis decision as supplemental authority (DN 35) is a poorly disguised motion for sanctions
pursuant to Rule 11(c)(2) of the Federal Rules of Civil Procedure. Myers responds that her
request for sanctions should not be construed as a motion to which the terms of Rule 11(c)(2)
apply; rather, she has asked the Court to issue sanctions on its own initiative pursuant to Rule
11(c)(3).
Contrary to Myers’s assertions, her request for sanctions in her reply in support of Davis
as supplemental authority (DN 35) is effectively a motion for sanctions pursuant to Rule
11(c)(2). While Myers professes to seek an award of her attorneys’ fees and costs in relation to
well to ensure that her citations to and quotations from case law are accurate and applicable to the propositions for
which they are used.

48

the Motion for Discovery (DN 14) on the basis of Rule 11(c)(3), that rule, by its terms, does not
apply here, because such an award would be based on Myers’s request for a finding of a
violation of Rule 11(b)7 and not on the Court’s own initiative. Compare Fed. R. Civ. P.
11(c)(2)(“A motion for sanctions must . . . describe the specific conduct that allegedly violates
Rule 11(b).”) with id. at (c)(3) (“On its own, the court may order an attorney, law firm, or party
to show cause why conduct specifically described in the order has not violated Rule 11(b).”)
(emphasis added). In this case, not only has Myers sought an order of sanctions rather than the
Court raising the issue sua sponte, at no time has the Court entered an order for Anthem to show
cause as to why it is not in violation of Rule 11(b), which is the proper course for imposition of
sanctions pursuant to Rule 11(c)(3).
Myers’s motion for sanctions is procedurally deficient and, therefore, must be denied.
Rule 11(c)(2) requires as follows: “A motion for sanctions must be made separately from any
other motion and must describe the specific conduct that allegedly violates Rule 11(b).” Fed. R.
Civ. P. 11(c)(2). Here, Myers filed her motion for sanctions within her reply in support of her
submission of Davis as supplemental authority. Thus, she failed to comply with Rule 11(c)(2)’s
requirement that a motion for sanctions be filed separately from other court filings. Additionally,
Rule 11(c)(2) requires that a party first serve its motion for sanctions on the opposing party and
then file it with the court only if “the challenged paper, claim, defense, or denial is [not]
corrected within 21 days after service or within another time the court sets.” Id.; Fed. R. Civ. P.
11 advisory committee note (1993) (“These provisions are intended to provide a type of ‘safe

7

The Court construes the motion for sanction as alleging a violation of Rule 11(b)(2), which provides that a
paper presented by an attorney to the Court is deemed to include a certification that “the claims, defense, and other
legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law.” Fed. R. Civ. P. 11(b)(2).

49

harbor’ against motions under Rule 11 in that a party will not be subject to sanctions on the basis
of another party’s motion unless, after receiving the motion, it refuses to withdraw that position
or to acknowledge candidly that it does not currently have evidence to support a specified
allegation.”). In this case, Anthem asserts that Myers’s counsel did not contact its counsel prior
to filing the motion for sanctions; Myers does not dispute this claim. Accordingly, the Court
finds that Myers failed to file her motion for sanctions separately from any other filings and that
she failed to comply with Rule 11(c)(2)’s “safe harbor” requirement.
The Court could deny the motion for Rule 11 sanctions for the reasons stated above.
However, it is worth noting that the motion for sanctions fails substantively as well. The basis
for the motion for sanctions is that Anthem has engaged in “continued obstruction and delay” by
asserting “objections [that are] entirely without merit and not offered in good faith.” (DN 35 at
2.) The Court disagrees. As Anthem points out in its responses to the motions for discovery and
sanctions, it did not respond to Myers’s discovery requests due to the Court’s language in its
scheduling order (DN 9), which required Myers to seek the Court’s permission to pursue
discovery on a limited set of issues subsequent to her review of the administrative record. Rather
than adhere to this course of action, Myers filed the Motion for Discovery without seeking
permission from the Court to propound discovery requests. Based on the foregoing, the Court
finds that the Anthem’s failure to respond to Myers’s discovery requests without express Court
authorization for those requests was reasonable.8
Moreover, the Court takes issue with Myers’s bluster regarding Anthem’s purported bad
faith. (See, e.g., DN 35 at 1 (“Anthem demanded the Court deviate from the normal schedule in
8

As is noted above, in the interest of expediency in this case, which has already been drawn out
significantly, the Court has chosen to address the Motion for Discovery on the merits rather than require Myers to
follow the dictates of that scheduling order (DN 9) and seek Court permission to serve its discovery requests.

50

ERISA cases and instead force Ms. Myers to waste significant time and resources briefing an
issue already decided in this Court, and in other courts throughout the Sixth Circuit.”).) In her
briefing on the motion for sanctions (DN 35, 38), Myers dramatically oversimplifies the current
state of the law on discovery in ERISA cases. As the Court’s analysis of the Motion to
Discovery – as well as the sheer length of the memorandum opinion thereon – demonstrates, the
law is currently evolving in the wake of the Glenn case. The law is far from settled as to every
aspect of the discovery requests propounded by Myers. Additionally, the simple fact that the
Court has denied the Motion for Discovery as to a number of Myers’s discovery requests makes
clear that Anthem’s opposition thereto was far from meritless or futile.
Finally, the Court finds that the motion for sanctions also fails under 29 U.S.C. § 1927
and Rule 26(g) of the Federal Rules of Civil Procedure. Section 1927 provides that an attorney
“who so multiplies the proceedings in any case unreasonably and vexatiously may be required by
the court to satisfy personally the excess costs, expenses, and attorney’s fees reasonably incurred
because of such conduct.” 29 U.S.C. § 1927. Rule 26(g) provides that by signing responses to
discovery requests (among other discovery-related papers), an attorney certifies that the response
or objection is “(i) consistent with the[] rules and warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law, or for establishing new law; (ii)
not interposed for any improper purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation; and (iii) neither unreasonably nor unduly burdensome
or expensive, considering the needs of the case, prior discovery in the case, the amount in
controversy, and the importance of the issues at stake in the litigation.”

Fed. R. Civ. P.

26(g)(1)(B)(i)-(iii). For the reasons set forth above in relation to Rule 11(b)(2), the Court finds
51

that Anthem’s opposition to Myers’s discovery requests was offered in good faith and did not
unduly delay the litigation or otherwise prejudice Myers. The Court does note, however, that,
having provided a roadmap for the parties as to the acceptable scope of discovery in this case, it
expects the parties to proceed with discovery with little or no Court intervention.
Accordingly, the Court concludes that Myers’s motion for sanctions, as it appears within
her reply in support of her use of Davis as supplemental authority (DN 35), is DENIED. The
Court further concludes that Anthem’s motion to strike (DN 36) is DENIED AS MOOT in light
of the denial of the motion for sanctions.

52

ORDER
Accordingly, IT IS HEREBY ORDERED that Myers’s Motion for Discovery (DN 14) is
GRANTED IN PART and DENIED IN PART for the reasons set forth above.
Specifically, IT IS HEREBY ORDERED as follows:
(1)

The Motion for Discovery is GRANTED as to interrogatory numbers 1, 2, 3, 5,

6, 7, 9, 12, 13, 14, 18, and 19 and request for production numbers 1, 2, 3, 6, 8, 11, 12, 15, 16,
and 17, subject to the instructions and limitations set forth above.
(2)

The Motion for Discovery is DENIED as to interrogatory numbers 4, 8, and 16

and request for production numbers 4, 5, 13, 14, 18, and 19.
(3)

The Motion for Discovery is GRANTED IN PART and DENIED IN PART as

to interrogatory numbers 10, 11, 15, and 17 and request for production numbers 7, 9, and 10.
Both parties shall be mindful of the instructions and limitations set forth above in relation to such
interrogatories.
(4)

Anthem shall serve its responses to Myers’s discovery requests no later than

thirty (30) days after the entry of this order. Anthem may disregard the instructions provided
by Myers in the text boxes that appear at the top of the page in Myers’s interrogatories and
requests for production.

Additionally, IT IS HEREBY ORDERED that the Court construes Myers’s reply in
support of her use of Davis as supplemental authority (DN 35) as a motion for sanctions.
Myers’s motion for sanctions is DENIED for the reasons set forth above.

53

Finally, IT IS HEREBY ORDERED that Anthem’s motion to strike (DN 36) is DENIED
AS MOOT in light of the Court’s ruling on the motion for sanctions.
March 21, 2016

cc: Counsel of record

Colin Lindsay, MagistrateJudge
United States District Court

54