Ferguson v. United of Omaha Life Insurance Company et al
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 12/18/12. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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TERRY FERGUSON o/b/o THE ESTATE
OF JOHN FERGUSON.
Plaintiff,
v.
UNITED OF OMAHA LIFE
INSURANCE COMPANY d/b/a/
MUTUAL OF OMAHA, et al.
Defendants
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Civil Case No.: ELH-12-1035
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MEMORANDUM OPINION
Plaintiff Terry Ferguson (“Plaintiff”) sued United of Omaha Life Insurance Company
(“United of Omaha”) on behalf of her husband’s estate. The Complaint alleges that United of
Omaha unlawfully refused to pay Plaintiff pursuant to an Accidental Death and Disability Plan,
which is governed by the Employee Retirement Income Security Act (“ERISA”).1
This
Memorandum Opinion addresses Plaintiff’s Motion to Compel Discovery (“Motion”), ECF No.
14, the opposition, and the reply thereto. I find that a hearing is unnecessary in this case. See
Local Rule 105.6 (D. Md. 2011). For the reasons stated herein, Plaintiff’s Motion is denied.
I. Background
United of Omaha denied Plaintiff’s application and appeal for accidental death benefits.
See Compl. ¶¶ 13-16. Plaintiff filed suit in this Court, challenging United of Omaha’s decision
to deny payment of benefits under Plaintiff’s insurance policy. Compl. ¶ 20. On June 19, 2012,
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This case has been referred to me by Judge Hollander to resolve discovery disputes and related
scheduling matters. [ECF No. 15].
United of Omaha provided Plaintiff with a copy of the Administrative Record, withholding ten
pages of the 778-page record on the basis of the attorney-client privilege. See Def.’s Opp’n, Ex.
1. Plaintiff, targeting information outside the scope of the Administrative Record, served its first
set of discovery requests on United of Omaha on July 25, 2012. Pl.’s Mot. to Compel, Ex. 1, 3.
United of Omaha responded on September 13, 2012, objecting because Plaintiff’s requests
sought discovery outside of the Administrative Record. Pl.’s Mot. to Compel, Ex. 4; Def.’s
Opp’n, Ex 2. On September 24, 2012, Plaintiff sent a letter to United of Omaha seeking
additional information and responses to its discovery requests. Pl.’s Mot. to Compel, Ex. 5. On
that date, Plaintiff also propounded its Second Set of Interrogatories. See id.
On October 2, 2012, United of Omaha responded to Plaintiff’s letter, stating the basis for
its belief that it had properly responded to Plaintiff’s requests. Pl.’s Mot. to Compel, Ex. 6. That
same day, Plaintiff wrote an e-mail to United of Omaha, stating that “I will have my objection
letter out to you soon so I won’t have to hear that I did not comply with the local rule.” Def.’s
Opp’n, Ex. 3. United of Omaha responded to Plaintiff’s Second Set of Interrogatories on
October 5, 2012, providing additional information, and again objecting because Plaintiff sought
information outside of the Administrative Record. Pl.’s Mot. to Compel, Ex. 9. Because
Plaintiff was dissatisfied with the responses, she served United of Omaha with the instant Motion
to Compel, and filed it with this Court on October 10, 2012. ECF No. 14.
II. Analysis
Pursuant to Rule 37, a party may move for an order compelling discovery. Fed. R. Civ.
P. 37(a)(1). Such a motion “must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to make disclosure or discovery
in an effort to obtain it without court action.” Id. In the same vein, in this district,
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The Court will not consider any discovery motion unless the moving party has
filed a certificate reciting (a) the date, time and place of the discovery conference,
and the names of all persons participating therein, or (b) counsel’s attempts to
hold such a conference without success; and (c) an itemization of the issues
requiring resolution by the Court.
Local Rule 104.7 (D. Md. 2011).
Plaintiff has failed to certify that she has conferred or
attempted to confer with United of Omaha as required by Rule 37, and has failed to file a Rule
104.7 certificate.
Plaintiff also fails to explain how she sought to resolve the dispute in good faith without
court involvement. See Mezu v. Morgan State Univ., 269 F.R.D. 565, 585 (D. Md. 2010)
(refusing to consider a motion to compel where the movant had not complied with Rule 37(a)(1)
or Local Rule 104.7); see also Kemp v. Harris, 263 F.R.D. 293, 297 (D. Md. 2009) (holding that
the movant failed to confer in good faith, despite filing a Certificate of Good Faith, because the
movant had only sent one e-mail to the opposing party before filing its motion). After receiving
United of Omaha’s responses to its discovery requests, Plaintiff sent United of Omaha a letter on
September 24, 2012, alleging certain deficiencies in United of Omaha’s responses, and noting
that the parties could discuss all discovery objections after United of Omaha responded to
Plaintiff’s Second Set of Interrogatories.2 Pl.’s Mot. to Compel, Ex. 5. United of Omaha
responded to Plaintiff’s letter on October 2, 2012, stating the reasons for its objections and
explaining why it believed it had properly responded to Plaintiff’s discovery requests. Pl.’s Mot.
to Compel, Ex. 6. On the same date, Plaintiff told United of Omaha that “I will have my
objection letter out to you soon so I won’t have to hear that I did not comply with the local rule.”
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Plaintiff’s letter began by stating, “[i]n accordance with Local Rule 105.6 of this Court, I am
writing to explain why a Motion to Compel will be necessary in this case unless you change your
position concerning discovery.” Pl’s Mot. to Compel, Ex. 5. Local Rule 105.6 allows counsel to
request a hearing, and allows the Court to decide motions without a hearing. Even assuming that
Plaintiff’s counsel meant to refer to Local Rule 104.7, Plaintiff has failed to make a good faith
effort to resolve this dispute without this Court.
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Def.’s Opp’n, Ex. 3. No such letter appears to have been sent. On October 5, 2012, United of
Omaha responded to Plaintiff’s Second Set of Interrogatories, and although Plaintiff had
suggested discussing all discovery issues after receiving these responses, no discussion of
discovery issues ensued. Rather than conferring and attempting to resolve the dispute, Plaintiff
served United of Omaha with the instant motion on October 10, 2012, and filed it with the Court
on the same day. Plaintiff has failed to comply with Rule 37 and Local Rule 104.7, as she has
not made a legitimate effort to resolve this dispute without court involvement. Simply sending
an “objection letter” does not constitute a discovery conference. The purpose of a discovery
conference is a good faith, interactive exchange with the goal of reaching a mutually acceptable
resolution. The goal is not simply to “check the box” of compliance with the Local Rule.
Plaintiff has also failed to comply with Local Rule 104.8. If a party is dissatisfied with
the responses to its propounded discovery requests, the requesting party must serve a motion to
compel on the opposing party, and may only file its motion to compel with the Court after it
receives a response and serves a reply on the opposing party. Local Rule 104.8 (D. Md. 2011);
see also Webb v. Green Tree Servicing, LLC, Civil Case No. ELH-11-2105, 2012 WL 3139551,
at *1 (D. Md. July 27, 2012). Plaintiff both served United of Omaha with its Motion and filed its
Motion with this Court on October 10, 2012, failing to adhere to Local Rule 104.8. Due to its
non-compliance with multiple Local Rules and the Rules of Civil Procedure, Plaintiff’s Motion
is denied.
Although this Court will not rule on the merits of Plaintiff’s Motion, it should be noted
that none of the lengthy submissions from either party thoroughly addresses the critical
substantive issue on extra-record discovery. Where, as here, a plaintiff seeks information outside
the scope of the Administrative Record regarding the defendant’s admitted structural conflict of
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interest, extra-record discovery may be available if the “information not contained in the record
is necessary to determine the likelihood that the conflict influenced the particular benefits
decision at issue.” Clark v. Unum Life Ins. Co. of Am., 799 F. Supp. 2d 527, 532 (D. Md. 2011).
A party seeking extra-record discovery must appraise the record, provide a basis for the court to
determine whether such discovery would fill gaps in the record, and demonstrate that such
discovery is necessary to determine the weight of administrator’s conflict. See id. at 536; Patel
v. United of Omaha Life Ins. Co., Civil Action No. DKC 12-0880, 2012 WL 2370129, at *3 (D.
Md. June 21, 2012); Kane v. UPS Pension Plan Bd. of Trs., Civil Action No. RDB-11-03719,
2012 WL 5869307, at *4 (D. Md. Nov. 19, 2012).
Plaintiff has not provided this Court with the Administrative Record, does not cite the
Administrative Record, and fails to explain what information is missing from the record. United
of Omaha also fails to explain why the Administrative Record is complete, and why Plaintiff’s
specific discovery requests are unnecessary given the information in the record. As such, it
would have been extraordinarily difficult for this Court to rule on the merits of the extra-record
discovery issue.
As for the ten pages of documents withheld on the basis of the attorney-client privilege,
Plaintiff argues that the fiduciary exception to the attorney-client privilege is applicable.
Plaintiff’s argument is insufficient. From the outset, “[t]he party invoking the attorney-client
privilege bears the burden of demonstrating its applicability.” Clark, 799 F. Supp. 2d at 536
(citing In re Grand Jury Subpoena: Under Seal, 415 F.3d 333, 338-39 (4th Cir. 2005)). A party
may carry this burden by submitting a privilege log, even if not detailed, that identifies “the
nature of each document, the date of its transmission or creation, the author and recipients, the
subject, and the privilege asserted.” Clark, 799 F. Supp. 2d at 536 (quoting N.L.R.B. v. Interbake
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Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)). United of Omaha’s privilege log denotes the
date of creation, includes the authors and recipients, and asserts the attorney-client privilege and
attorney work product protection. The privilege log also states that the disputed documents
constitute “Legal Review” sent by “Dana Washington/In-house Counsel” in response to requests
by a claims analyst and an appeals analyst.3 Def.’s Opp’n, Ex. 1. This Court is satisfied that
United of Omaha has met its burden of demonstrating that the attorney-client privilege applies.
When a party makes a prima facie showing of privilege, “the party asserting an exception
to the privilege bears the burden of establishing that the exception applies.” Clark, 799 F. Supp.
2d at 537 (citing In re Grand Jury Proceedings, Thursday Special Grand Jury Sept. Term, 1991,
33 F.3d 342, 352 (4th Cir. 1994)). Plaintiff argues that the fiduciary exception applies here.
This exception, in the ERISA context, “does not apply to all communications between ERISA
trustees and their counsel, but only to those concerning the fiduciary relationship.” Id. (citing
Solis v. Food Emp’rs Labor Relations Ass’n, 644 F.3d 221 (4th Cir. 2011)). Plaintiff, therefore,
must demonstrate that the disputed documents that “concern subject matter that is covered by the
fiduciary exception.” Id.
Plaintiff has not acknowledged the limited scope of the fiduciary exception in the ERISA
context, and has failed to make any argument about the contents of the disputed documents.
Plaintiff has not demonstrated that the disputed documents concern subject matter that is covered
by the fiduciary exception. As such, Plaintiff has not overcome United of Omaha’s showing of
privilege. See Clark, 799 F. Supp. 2d at 537.
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In its opposition, United of Omaha adds that these disputed documents are consultations with
internal counsel to discuss letters sent by Plaintiff’s counsel implying the threat of litigation.
Def.’s Opp’n 26.
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A separate order is entered herewith.
Dated: December 18, 2012
/s/
Stephanie A. Gallagher
United States Magistrate Judge
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