Wittmann v. UNUM Life Insurance Company of America

Filing 28

ORDER AND REASONS re 16 Motion to Compel. Applying the foregoing standards and having considered the motion papers and the record as a whole, IT IS ORDERED that the motion is GRANTED IN PART AND DENIED IN PART as set forth in document. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 4/23/2018. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANNE WITTMANN

CIVIL ACTION

VERSUS

NO. 17-9501

UNUM LIFE INSURANCE
COMPANY OF AMERICA

SECTION “F” (2)

ORDER AND REASONS ON MOTION
Plaintiff asserts that defendant denied her claim for long-term disability benefits in bad
faith, and she seeks recovery of those benefits pursuant to § 502(a)(1)(B) of the Employee
Retirement Income Act of 1974 (“ERISA”) (29 U.S.C. § 1132(a)(1)(B)). Record Doc. No. 1 at
¶¶ 1 and 4. Anne Wittmann (“Wittmann”) was formerly employed as an attorney at Baker,
Donelson, Bearman, Caldwell, Berkowitz PC (“Baker Donelson”). Record Doc. No. 1 at ¶ 8.
She was a plan participant under a group benefits plan underwritten and administered by
defendant Unum Life Insurance Company of America (“Unum”) for the benefit of Baker
Donelson employees. Id. at ¶ 1; Record Doc. No. 4 at p. 1.
Plaintiff contends that she became disabled and ceased work on December 31, 2013, and
she sought disability benefits on April 2, 2014. Record Doc. Nos. 1 at ¶¶ 8 and 9 and 16-2 at
p. 2. Defendant denied her claim on October 3, 2014. Id. at ¶ 16 and p. 2. Plaintiff appealed
Unum’s decision, and Unum denied her appeal on May 29, 2015 and July 20, 2015. Record
Doc. No. 16-2 at p. 2. She then filed this action against the plan on September 22, 2017, under
502(a)(1)(B) of ERISA, requesting that this court declare her entitled to benefits under the plan.
Record Doc. No. 1 at p. 5.

On January 22, 2018, plaintiff propounded interrogatories, requests for admission and
requests for production of documents on defendant. Plaintiff requested that defendant produce
evidence “pertaining to the extent of [Unum’s] conflict of interest as both underwriter and claims
administrator of her Long Term Disability Insurance Plan (the “Plan”).” Record Doc. No. 16-4
at p. 1. Defendant responded on February 21, 2018, and objected to plaintiff’s requests as vague,
ambiguous, overbroad, compound, burdensome, irrelevant, invasive of the rights of individual
employees or other insureds and protected attorney-client privilege or work product. Record
Doc. Nos. 16-2 at p. 1 and 16-5 at pp. 1-2.
Plaintiff moved to compel on May 27, 2018. Record Doc. No. 16. Plaintiff’s original
motion papers were substantially unhelpful to the court because they took a blunderbus approach
to the relief plaintiff sought. Specifically, her original memorandum in support of the motion
identified alleged deficiencies only in defendant’s responses to Interrogatories Nos. 2, 8, 9, 10,
17 and 18; Requests for Production Nos. 3, 4 and 8 and Requests for Admission Nos. 2, 3, 4
and 5.1
On April 9, 2018, defendant filed its opposition memorandum, principally arguing that
plaintiff is not entitled to the requested discovery because the administrative record is sufficient
for the court to determine whether and the extent to which Unum’s conflict of interest
improperly influenced plaintiff’s benefits decision. Record Doc. No. 24.

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Exhibit A to plaintiff’s motion, Record Doc. No. 16-3 (list of specific responses and deficiencies),
identified additional discovery requests allegedly at issue, but was equally unhelpful to the court in its
conclusory explanations of why the responses were deficient. This kind of disjointed and convoluted briefing
makes it difficult and unduly burdensome for the court to determine what a movant wants and why and
provides further evidence that the art of persuasion is dying before my eyes.

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In addition, defendant supplemented its responses to the discovery requests on April 6,
2018, and attached its supplemental responses to its opposition memorandum. Record Doc. No.
24-1 at p. 47. Plaintiff filed a reply to defendant’s opposition memorandum on April 10, 2018,
in which she asserts that Unum’s supplemental responses remain deficient. Record Doc. No. 27.
It was only in the reply memorandum that plaintiff specifically identified additional discovery
responses she alleges are deficient. The court will address only those responses specifically
identified as allegedly deficient in plaintiff’s supporting and reply briefs and deems waived any
deficiency argument as to requests not so identified.2
STANDARD OF REVIEW
Fed. R. Civ. P. 26(b)(1) states in pertinent part that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense
and proportional to the needs of the case . . . . Information within this scope of discovery need
not be admissible in evidence to be discoverable.” Limitations on discovery include those set
out in Fed. R. Civ. P. 26(b)(2)(C), including that the court must limit the frequency or extent of
discovery otherwise allowed by the Rules if it determines that “(i) the discovery sought is
unreasonably cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the action.” Fed. R. Civ. P. 26(b)(2)(C)(i)
and (ii).

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This waiver applies to Interrogatories Nos. 5 and 11, Requests for Production Nos. 5, 6, 7, 9 and
15 and all Requests for Admissions Nos. 2-5.

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Discovery is further limited in ERISA cases. As outlined by this court in a recent case,
binding United States Court of Appeals for the Fifth Circuit precedent provides that
[w]ith respect to ERISA actions brought under 29 U.S.C. § 1132(a), courts are
charged with monitoring discovery “closely” because review is “essentially
analogous to a review of an administrative agency decision.” Crosby v. La.
Health Servs. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011). As such,
discovery is disallowed where it would constitute reconsideration of the
administrative record and whether coverage should have ultimately been afforded.
Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299-300 (5th Cir. 1999),
abrogated on other grounds by Met. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008).
However, this prohibition does not extend to other questions which may arise in
an ERISA action, such as “(1) the completeness of the administrative record; (2)
the plan administrator’s compliance with ERISA’s procedural regulations; and (3)
[]the existence and extent of a conflict of interest created by a plan administrator’s
dual role in making benefits determinations and funding the plan.” Crosby, 647
F.3d at 263 (emphasis added).
Fluitt v. Mut. of Omaha Ins. Co., No. 12-2800, 2013 WL 3930090, at *2 (E.D. La. July 26,
2013) (Roby, M.J.). In addition,
[e]vidence is irrelevant to the validity of the decision regarding coverage under
the plan unless it “is in the administrative record, relates to how the administrator
has interpreted the plan in the past, or would assist the court in understanding
medical terms and procedures.” Crosby, 647 F.3d at 263. The district court
hewed carefully to this limitation, striking offending portions and admitting only
those that assisted “the district court in understanding the medical terminology or
practice.”
Jurasin v. GHS Prop. & Cas. Ins. Co., 463 F. App’x 289, 292 (5th Cir. 2012).
As to attorney-client privilege,
[a]n ERISA plan is a separate legal entity from its sponsor, 29 U.S.C. § 1132(d),
and a plan’s administrator owes a fiduciary duty to the plan’s beneficiaries, not
its sponsor. When an attorney advises a plan administrator or other fiduciary
concerning plan administration, the attorney’s clients are the plan beneficiaries
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for whom the fiduciary acts, not the plan administrator. Therefore, an ERISA
fiduciary cannot assert the attorney-client privilege against a plan beneficiary
about legal advice dealing with plan administration.
Wilbur v. ARCO Chem. Co., 974 F.2d 631, 645 (5th Cir. 1992) (citing 29 U.S.C. § 1002(21),
1103(a) and (c)(1); Wash.-Baltimore Newspaper Guild, Local 35 v. Wash. Star Co., 543 F.Supp.
906, 909 (D.D.C. 1982)); accord Arnold v. F.A. Richard & Assocs., Inc., No. 99-2135, 2000 WL
1693659, at *5 (E.D. La. Nov. 8, 2000) (“[T]he Court may, in instances where the administrator
of an ERISA plan may have abused its discretion or where there are issues regarding lack of
good faith, allow more evidence than that contained in the administrative record, including legal
advice dealing with plan administration.”).
Applying the foregoing standards and having considered the motion papers and the record
as a whole, IT IS ORDERED that the motion is GRANTED IN PART AND DENIED IN PART
as follows.
ANALYSIS
(A)

General Objections
As initial matters, I note that defendant has asserted a laundry list of “General

Objections” that only obfuscate and confuse both the plaintiff and the court concerning what
objections defendant is actually making to what particular discovery requests, what information
it has actually produced and whether a complete response has been made. “In every respect
these objections are text-book examples of what federal courts have routinely deemed to be
improper objections.” St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508,
512 (N.D. Iowa 2000) (citing Burns v. Imagine Films Entm’t, Inc., 164 F.R.D. 589, 592-93
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(W.D.N.Y. 1996) (general objections not sufficiently specific to allow court to ascertain
objectionable character of discovery request); Chubb Integrated Sys. Ltd. v. Nat’l Bank of
Wash., 103 F.R.D. 52, 58 (D.D.C. 1984) (“General objections are not useful to the court ruling
on a discovery motion. Nor does a general objection fulfill [a party’s] burden to explain its
objections.”)); see also McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482,
1485 (5th Cir. 1990) (The “party resisting discovery must show specifically how . . . each
interrogatory is not relevant or how each question is overly broad, burdensome or oppressive.”)
(citation omitted). If defendant has a specific objection to a particular request, it must state the
objection “with specificity.” See Fed. R. Civ. P. 33(b)(4) (“The grounds for objecting to an
interrogatory must be stated with specificity.”); Fed. R. Civ. P. 34(b)(2)(B) (“For each item or
category, the response must . . . state with specificity the grounds for objecting to the request,
including the reasons.”) (emphasis added); McLeod, Alexander, Powel & Apffel, 894 F.2d at
1485. Thus, the court will ignore all of these objections, except insofar as they are specifically
asserted in defendant’s individualized response to particular discovery requests.
In addition, I overrule defendant’s attorney-client privilege and work product objections.
Based upon the precedent cited above, I find that the “fiduciary exception” precludes assertion
of these objections as to Unum attorneys who participated in the claim review, evaluation and
denial under the circumstances presented by defendant’s status in this case. Defendant retains
its privilege and work product objections only insofar as they involve its counsel of record’s
work in this case.

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(B)

Particular Responses
The motion is granted as to Interrogatories Nos. 6 and 7 and Request for Production

No. 1. The information sought is relevant to the existence and extent of defendant’s conflict of
interest. All objections are overruled. With respect to Request for Production No. 1, defendant
must produce the documents requested with any personal information redacted from the subject
performance evaluations. See Parish v. Aetna Life Ins. Co., No. 12-2315, 2013 WL 3974534,
at *4 (E.D. La. Aug. 2, 2013) (“The Court also finds that with regard to the performance
evaluations, only those related to those employees who reviewed plaintiff’s claim are
discoverable. . . . Any personal information should be redacted from the evaluations.”). As to
Interrogatories Nos. 6 and 7, defendant must provide compensation information for those
attorneys and physicians, if any, who advised defendant on the administration of plaintiff’s claim
and must identify the individual(s) with the most comprehensive knowledge of that
compensation information. The current answers are incomplete because they do not provide all
information sought by these requests, as detailed in plaintiff’s reply memorandum. Full and
complete answers, without objections, must be provided. Record Doc. Nos. 24-1 at p. 18-19
and 27 at p. 5, ¶¶ D and E.
The motion is also granted, limited to the relevant time period set out above, as to
Requests for Production Nos. 8, 13 and 14 because these requests seek materials that appear
relevant to how defendant has interpreted the terms of this plan in the past. Defendant’s current
responses concerning the Benefits Center Claim Manual do not address whether the manual is
the only responsive document in its possession, custody or control or whether it has additional
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responsive material it is withholding subject to its objections. Record Doc. No. 24-1 at pp. 4345. All objections, except as to the time limitation, are overruled.
The motion is granted as to Interrogatories Nos. 1 and 2. Defendant must provide the
educational and professional background, length of employment with Unum and official position
title of each attorney in its supplemental answers.
Plaintiff’s motion is denied as to Requests for Admission Nos. 2, 3, 4 and 5, Requests for
Production Nos. 3 and 4 and Interrogatories Nos. 3, 4, 8, 9 and 10. Defendant provided
supplemental responses to Requests for Admission Nos. 2, 3, 4 and 5, Interrogatory No. 10 and
Requests for Production Nos. 3 and 4. Although most of the objections are overruled, the
responses provided subject to the objections appear sufficient, and plaintiff did not contest the
sufficiency of those responses in its reply to defendant’s opposition memorandum. Record Doc.
No. 24-1 at pp. 4-7, 21-22 and 34-36.

Defendant also supplemented its response to

Interrogatories Nos. 8 and 9 by producing “all communications which reference consult with an
individual in Unum’s legal department and the response received.” Record Doc. No. 24-1 at pp.
19-20 and 60-71 (emphasis added). Plaintiff’s motion is also denied as to Interrogatories Nos. 3
and 4 because defendant has stated that “all information related to the administration of benefits
during the relevant time frame [of April 2, 2014 to July 31, 2017] has been provided in the form
of Unum’s Benefits Center Claims Manual.” Record Doc. No. 24-1 at pp. 13 and 15 (emphasis
added); Fed. R. Civ. P. 33(d). Defendant provided an updated copy of its Benefits Center Claims
Manual through February 28, 2018. Id. Plaintiff did not dispute defendant’s objection that any
information regarding Unum’s hiring and firing practices are irrelevant and disproportionate to
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the needs of the case. Record Doc. No. 27 at p. 4, ¶ C. These objections are sustained.
The motion is also denied as to Interrogatories Nos. 13, 14, 15, 16, 17 and 18 and
Requests for Production Nos. 10, 11 and 12. I agree with and find persuasive the recent decision
by the United States District Court for the District of Wyoming involving Unum, in which the
court denied in part the plaintiff’s motion to compel and found that interrogatories and requests
for production requesting information about previously investigated and adjusted claims was not
discoverable. Caldwell v. UNUM Life Ins. Co. of America, No. 16-CV-236-S, 2017 WL
5591711, at *6-7 (D. Wyo. May 3, 2017). The court noted that while evidence of systemic bias
in an ERISA insurer’s prior claims decisions is relevant to whether that insurer’s benefits denials
were arbitrary or capricious, pure statistical evidence concerning prior claims may not be
probative and the collection of relevant information is a significant burden on the defendant. Id.
at *6 (citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008)).
In addressing the minimal relevance of statistical evidence, the Seventh Circuit
has held that “Glenn did not invite a ‘batting average’ approach” to judicial
review of ERISA determinations. Instead, Glenn relied on “a detailed, factintensive account of systemic flaws and misconduct in the company’s
administrative review process, supported by discovery, investigative journalism,
and the accounts of inside whistleblowers.” This distinction, between pure
statistical evidence and a more detailed investigation is important because “abuse
of discretion is a fact-specific inquiry. Without evidence of systemic bias,” raw
numbers showing how many similar claims were denied or approved reveal little
about [how Unum] abused its discretion in any particular benefits determination.
As a result, the significant expense and effort that would be expend[ed] reviewing
and organizing prior claims[] outweighs the probative value of pure statistical
information.
Id. at *7 (citing Fed. R. Civ. P. 26(b); Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758, 768 (7th
Cir. 2010)); see also Kamerer v. Unum Life Ins. Co. of America, 251 F. Supp. 3d 349, 352 (D.
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Mass. May 4, 2017) (quoting Truitt v. Unum Life Ins. Co. of America, 729 F.3d 497, 514 (5th
Cir. 2013) (“This court will not ‘assume Unum is biased every time it denied a claim’ simply
because it employed unfair claims practices more than a decade ago, particularly in light of
changes to claims processing it has since made.”)). The precedent set by the Fifth Circuit in
Crosby allows for some extra-record discovery in limited circumstances, but the Crosby decision
also cautions against abusive discovery and states that “district court[s] must limit otherwise
permissible discovery” if the burden or expense of that discovery outweighs the likely benefit.
Crosby, 647 F.3d at 264. Defendant’s objections are sustained.
Defendant must provide a supplemental written responses to plaintiff’s First Set of
Requests for Production of Documents that deletes the “General Objections” and clearly state
all additional interrogatory answers and written responses to requests for production ordered
herein, together with actual production of all additional responsive materials, if any, to plaintiff
no later than May 7, 2018.

23rd
New Orleans, Louisiana, this _________ day of April, 2018.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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