Wittmann v. UNUM Life Insurance Company of America

Filing 62

ORDER AND REASONS: ORDERED that the Wittmann's 35 Motion for review of the Magistrates Order and Reasons is DENIED in part as moot and GRANTED in part as to the identification of communications by attorneys who are not in-house counsel. FURT HER ORDERED that Unum must produce responses that adequately address Wittmann's request for oral and written communications by any lawyer that participated in Wittmann's claims by June 28, 2018. Signed by Judge Martin L.C. Feldman on 6/13/2018. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ANNE WITTMANN

CIVIL ACTION

V.

NO. 17-9501

UNUM LIFE INSURANCE
COMPANY OF AMERICA

SECTION "F"

ORDER AND REASONS
Before the Court is Anne Wittman’s motion for review of the
Magistrate Judge’s April 23, 2018 Order and Reasons. For the
following reasons, the motion is DENIED in part as moot, and
GRANTED in part.
Background
This discovery dispute arises from a lawsuit challenging the
denial of disability benefits under a group benefits plan.
Anne Wittmann is the beneficiary of a long-term disability
insurance plan through her employment as an attorney with Baker,
Donelson, Bearman, Caldwell, Berkowitz PC. Unum Life Insurance
Company of America is the administrator of the plan and its
underwriter.

Wittmann

suffers

from

fibromyalgia,

and

has

not

worked regularly since December 31, 2013. Unum denied Wittmann’s
claim for long-term disability benefits under the plan in 2014,
and denied Wittman’s administrative appeals in 2015. After the
Social

Security

Administration

granted

Wittmann

disability

benefits in 2016, Unum undertook an additional appeal review, and

1

granted Wittman mental illness disability on January 24, 2017. 1
Mental illness benefits are limited to 24 months, but Wittman
sought physical disability benefits, which are payable through
Wittmann’s expected retirement. On September 22, 2017, Wittmann
sued Unum for the denial of her claim for physical disability
benefits under her long-term disability plan, pursuant to Section
502(a)(1)(B) of Employee Retirement Income Act of 1974. 29 U.S.C.
§ 1132(a)(1)(B).
On January 22, 2018, Wittmann delivered its First Set of
Requests for Admission, Interrogatories and Request for Production
of

Documents

to

Unum.

Unum

responded

on

February

21,

2018,

prompting Wittman to file a motion to compel on March 27, 2018 on
the grounds that the responses were deficient and raised improper
objections. Unum supplemented its responses on April 9, 2018. On
April 23, 2018, Magistrate Judge Wilkinson granted Wittmann’s
motion to compel in part, and denied it in part. On May 7, 2018,
Wittmann moved for review of the Magistrate Judge’s denial of the
motion to compel in respect to Interrogatories Nos. 8 and 9.

I.
Pursuant to Federal Rule of Civil Procedure 72(a), a party
may appeal the ruling of the Magistrate Judge to the District

1

Wittmann experiences depression, but never claimed that she was
disabled due to depression.
2

Judge. A Magistrate Judge is afforded broad discretion in the
resolution of non-dispositive motions. See Fed. R. Civ. P. 72(a);
see

also

28

U.S.C.

§ 363(b)(1)(A).

If

a

party

objects

to

a

Magistrate Judge’s ruling on a non-dispositive matter, the Court
will disturb a Magistrate’s ruling only when the ruling is “clearly
erroneous or is contrary to law.” See Fed. R. Civ. P. 72(a); see
also Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995). A finding
is "clearly erroneous" when the reviewing Court is "left with the
definite and firm conviction that a mistake has been committed."
United States v. Stevens, 487 F.3d 232, 240 (5th Cir. 2008)(quoting
United States. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

II.
Wittmann

seeks

to

prove

that

Unum

denied

her

claim

for

physical disability in bad faith and in order to advance its
interest

as

information

underwriter.
about

the

Accordingly,

participation

Wittmann
by

lawyers

requested
in

the

administration of her claim. Interrogatory No. 8 stated:
Describe the extent to which your in-house counsel, or any
lawyer engaged by or working for you, participated in the
administration of Ms. Wittmann’s claim. Your answer should
include:
a. Whether your counsel assisted in drafting, editing or
transmitting any correspondence to Ms. Wittmann;
b. Any input, formal or informal, oral or written, from
your counsel regarding the merits of Ms. Wittmann’s
claim.
Interrogatory No. 9 stated:
3

Identity and describe all communications, written or oral,
in any form, between you and in-house counsel, or any
lawyer engaged by or working for you, regarding the
administration of Ms. Wittmann’s claim. Your answer should
include:
a. The date of the communication;
b. The names of all persons participating in the
communication;
c. The subject matter of the communication;
d. Any other discoverable information response to this
Interrogatory.
The initial response to both interrogatories were identical: “Unum
objects to this interrogatory on the grounds it calls for the
disclosure

of

information

protected

by

the

attorney-client

privilege and/or work product doctrine. Subject to and without
waiving the objections, Unum will produce an amended privilege log
containing information response to this request.” The supplemental
responses were also identical: “Without waiving its objections,
all communications which reference consult with an individual in
Unum’s legal department, and the response received are attached
and

each

contains

the

best

evidence

of

its

contents.”

Unum

submitted eleven pages of electronic communications that took
place during 2014-2017 and involved three Unum in-house attorneys.
In his April 23, 2018 Order and Reasons, the Magistrate Judge
overruled the objections based on the attorney-client privilege
and

the

work

product

doctrine,

holding

that

the

“fiduciary

exception” subjects these communications to discovery. Wildbur v.
ARCO Chem. Co., 974 F.2d 631, 645 (“When an attorney advises a
plan

administrator

or

other
4

fiduciary

concerning

plan

administration, the attorney’s clients are the plan beneficiaries
for whom the fiduciary acts, not the plan administrator. . . .
[A]n ERISA fiduciary cannot assert the attorney-client privilege
against a plan beneficiary about legal advice dealing with plan
administration.”)(internal citations omitted). But the Magistrate
Judge held that Unum’s responses to Interrogatories 8 and 9 were
sufficient because it provided “all communications which reference
consult with an individual in Unum’s legal department and the
response received.” (Emphasis in original).
The plaintiff contends that the responses were incomplete
because

Unum

never

addressed

whether

there

were

oral

communications or communication by other counsel besides the inhouse attorneys. Additionally, the plaintiff contends that the
communications produced indicate that additional communications
exist, but were not disclosed. For example, on August 28, 2014,
following an inquiry into an issue with Wittmann’s file, an inhouse attorney responded, “After discussion of the issues raised
in the activity request, it was determined the file would be
discussed at the next legal issues group. Follow up activity will
occur for legal input after that discussion.” Wittmann points out
that Unum failed to disclose any information about this meeting,
including who the members of the legal issues group are, and what
the members discussed during the meeting. Moreover, Unum never
provided any information of follow up activity. Wittman contends
5

that the communications reveal that Unum’s in-house counsel was
involved in the administration of her claim, but did not adequately
address the extent of the involvement.
In its opposition, the defendant submitted sworn declarations
from the three in-house counsel that participated in the disclosed
communications. Each attorney states that their sole involvement
with

Wittmann’s

claim

for

disability

were

the

discrete

communications included in Unum’s productions, and that they do
not recall any additional oral or written communications. Unum
also submitted a sworn declaration from Jennifer Wellman, the lead
appeals specialist for Unum Group. Wellman was responsible for
handling

the

administrative

appeal

of

Wittmann’s

claims.

She

stated that she reviewed the declarations of the three in-house
attorneys and that “there [a]re no other communications between
claims personnel and these individuals or any other members of the
Unum’s Legal Department pertaining to Ms. Wittmann’s claims.”
Although the Court agrees with the plaintiff that Unum’s
original and supplemental answers were insufficient, and that the
Magistrate Judge erred in finding that they were adequate, Unum
has

cured

the

defects,

rendering

review

of

Magistrate

Judge

Wilkinson’s Order and Reasons moot. Unum did not respond to the
request

about

communications

oral

communications.

produced

indicates

And
that

the

language

there

may

of

the

well

be

additional communications, such as information about the “legal
6

issues group.” But any inference of additional communications has
been extinguished by Wellman’s declaration, which states that
there

are

no

other

communications

that

could

be

produced.

Additionally, the other three declarations make clear that the inhouse attorneys do not have knowledge of additional undisclosed
oral or written communications. Relying on their declarations,
sworn under penalty of perjury, the Court cannot compel Unum to
produce communications that it claims do not exist.
However, Interrogatories Nos. 8 and 9 were not limited to
communications involving in-house counsel. The interrogatories
request communications from “any lawyer engaged by or working for”
Unum. The supplemental responses and the declarations only address
communication with in-house counsel. Because Unum fails to respond
to the requests in full, its response is insufficient.
Accordingly, IT IS ORDERED: that the Wittmann’s motion for
review of the Magistrate’s Order and Reasons is DENIED in part as
moot and GRANTED in part as to the identification of communications
by attorneys who are not in-house counsel. IT IS FURTHER ORDERED:
that

Unum

must

produce

responses

7

that

adequately

address

Wittmann’s request for oral and written communications by any
lawyer 2 that participated in Wittmann’s claims by June 28, 2018. 3

New Orleans, Louisiana, June 13, 2018

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

2

If there are no communications by lawyers engaged or working for
Unum, besides in-house counsel, then Unum shall submit a
declaration stating that. The issue of attorney-client privilege
as presented to the Court by both sides appears moot for the
purpose of the present appeal, but may be relevant in future
discovery disputes.
3 The Court is aware that defense counsel, Laura Welch, is currently
hospitalized and in critical care. The Court will entertain a
motion for an extension of time, if necessary.
8