Bauer v. Cox Enterprises, Inc. et al

Filing 34

ORDER that the defendants' Motion for Protective Order (Filing No. 26) is denied. The plaintiff's Motion for Enlargement of Time (Filing No. 29) is granted. The defendants shall have until August 21, 2015, to respond to the plaintiff's discovery requests, as modified in this Order. Ordered by Magistrate Judge Thomas D. Thalken. (MBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

MICHELLE BAUER,
Plaintiff,

8:14CV324

vs.
ORDER
AETNA LIFE INSURANCE
COMPANY, a Connecticut
corporation, and
COX ENTERPRISES, INC.
WELFARE BENEFITS PLAN,
Defendants.
This matter is before the court on the defendants’, Aetna Life Insurance
Company, and Cox Enterprises, Inc. Welfare Benefits Plan, Motion for Protective Order
(Filing No. 26). The defendants filed a brief (Filing No. 27) and index of evidence (Filing
No. 28) in support of the motion.

Also before the court, and in response to the

defendants’ motion, is the plaintiff’s, Michelle Bauer, Motion for Enlargement of Time
(Filing No. 29). The parties subsequently filed briefs (Filing Nos. 30, 32, and 33) and
evidence (Filing No. 31) in support of and opposition to the respective motions.

BACKGROUND
This action pertains to the plaintiff’s attempt to obtain long-term disability benefits
under the Employee Retirement Security Act (ERISA) based on the terms of the Cox
Enterprises, Inc. Welfare Benefits Plan (the Plan). See Filing No. 1 - Complaint. The
plaintiff filed her complaint on October 23, 2014. Id. On March 11, 2015, the parties
filed their Fed. R. Civ. P. 26(f) Report. See Filing No. 15 - 26(f) Report. Under the
section titled “Discovery” the plaintiff noted she anticipated “the need for limited
discovery related to her claims involving procedural irregularities and bias in
Defendant’s determination of her claim.”

Id. ¶ IV(E).

The defendants stated “all

discovery shall be limited to the contents of the Administrative Record and shall be
conducted in accordance with the Federal Rules of Civil Procedure.” Id. The parties
agreed “[w]ritten discovery under Rules 33 through 36 of the Federal Rules of Civil
Procedure will be completed by: June 1, 2015.” Id. On March 12, 2015, the court

entered an order setting various case deadlines and adopting the parties’ stipulations
regarding the discovery deadline. See Filing No. 16 - Order for Progression of Case
¶ 10.
On June 1, 2015, the plaintiff served the defendants with interrogatories and
requests for production of documents. See Filing No. 28-1 - Discovery Requests; Filing
No. 25 - Certificate of Service. The plaintiff’s interrogatories generally seek the facts
underlying the defendants’ affirmative defenses as well as whether the defendants
acted as both the claims administrator and payor of the plaintiff’s benefits. Id. The
plaintiff’s requests for production seek a wide range of documents including:

all

documents of communication between the plaintiff and defendants, the personnel file of
claim

representatives,

documents regarding the

defendants’ bonus structure,

information concerning physicians related to the plaintiff’s claim, and documents the
defendants’ employees use to review claims. Id.
After the parties conferred regarding the propriety of the plaintiff’s discovery
requests, on July 1, 2015, the defendants filed their instant motion seeking a protective
order. See Filing No. 26 - Motion. The defendants argue the discovery requests are
untimely, as the requests were served the day of the discovery deadline, and discovery
beyond the Administrative Record is prohibited because this is an ERISA matter. See
Filing No. 27 - Brief.
In the plaintiff’s responsive motion, filed on July 2, 2015, the plaintiff seeks an
extension of the discovery deadline to July 6, 2015. See Filing No. 29 - Motion. The
plaintiff states she miscalculated the discovery deadline and argues an extension will
not prejudice the defendants considering the deadline to file dispositive briefing is
August 28, 2015. Id.; see also Filing No. 30 - Response. The plaintiff contends the
sought-after discovery is related to the defendants’ potential conflict of interest, which is
highly relevant to the disposition of this case. See Filing No. 30 - Response p. 4-5. The
plaintiff concedes Interrogatory Nos. 2 through 6 and Request Nos. 1 and 14 are not
related to a conflict of interest inquiry.

Id.

The defendants reiterate the discovery

requests are untimely and the plaintiff is not entitled to the discovery due to the limits on
discovery in ERISA matters. See Filing No. 32 - Response; Filing No. 33 - Reply.

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ANALYSIS
Federal Rule of Civil Procedure 16(b) provides that a schedule shall not be
modified except upon a showing of good cause and by leave of the court. See Fed. R.
Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s
consent.”) (emphasis added); see also Hartis v. Chicago Title Ins. Co., 694 F.3d 935,
948 (8th Cir. 2012). “The primary measure of good cause is the movant’s diligence in
attempting to meet the order’s requirements.” Hartis, 694 F.3d at 948 (citation omitted).
“While the prejudice to the nonmovant resulting from modification of the scheduling
order may also be a relevant factor, generally, [the court] will not consider prejudice if
the movant has not been diligent in meeting the scheduling order’s deadlines.”
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 717 (8th Cir. 2008). In addition to
the good cause requirement, “on motion made after the time has expired,” the court
may extend time “if the party failed to act because of excusable neglect.” See Fed. R.
Civ. P. 6(b)(1)(B).
Although acknowledging the necessity of maintaining deadlines set forth in the
court’s scheduling orders, the court recognizes “[b]road discovery is an important tool
for the litigant[.]” WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d
1032, 1039 (8th Cir. 2011). Nevertheless, the court has authority to limit the scope of
discovery. See Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir.
2003). A party may move for an order protecting disclosure or discovery, which is
granted only upon a showing of good cause. See Fed. R. Civ. P. 26(c). The party
moving for the protective order has the burden to demonstrate good cause for issuance
of the order. Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket Matter
No. 2, 197 F.3d 922, 926 (8th Cir. 1999). After showing good cause, the court may
forbid disclosure or discovery. See Fed. R. Civ. P. 26(c)(1)(A).
Generally, in an ERISA benefits-denial case, the district court may not consider
evidence which is not contained in the administrative record. See Sloan v. Hartford
Life & Acc. Ins. Co., 475 F.3d 999, 1004 (8th Cir. 2007). However, the court may allow
limited discovery into a potential conflict of interest where the entity administering the
plan “both determines whether an employee is eligible for benefits and pays benefits out
of its own pocket[.]” See Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008);
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Green v. Union Sec. Ins. Co., 646 F.3d 1042, 1053 (8th Cir. 2011); Chronister v.
Unum Life Ins. Co. of Am., 563 F.3d 773, 774 & n.2 (8th Cir. 2009).
The court finds the plaintiff shall have to opportunity to seek evidence to support
the alleged conflict of interest. The plaintiff’s failure to send the requests was due to a
misinterpretation of the discovery deadline and had the defendants been truly
concerned with the timeliness of the discovery requests, the defendants would not have
waited nearly a month after receiving the requests to file the instant motion for a
protective order. The court however cautions plaintiff’s counsel to closely read and
abide by agreed upon and court-ordered deadlines. While plaintiff’s counsel disagrees
with the defendants’ citation to cases addressing deadlines regarding the completion of
discovery, the court agrees discovery should be served “sufficiently in advance of the
deadline[ ] such that the responses are due by the deadline for completion of
discovery.” See Bailey v. Komatsu Forklift U.S.A., Inc., No. C07-2002, 2008 WL
2674886, at *3 (N.D. Iowa July 7, 2008); see also B&B Hardware, Inc. v. Fastenal
Co., No. 4:10CV317, 2011 WL 2115546, at *3 & n.3 (E.D. Ark. May 25, 2011) (same);
United Consumers Club, Inc. v. Prime Time Mktg. Mgmt. Inc., 271 F.R.D. 487, 495
(N.D. Ind. 2010) (same). Moreover, the defendants failed to show any undue prejudice
as a result of this short extension. Nevertheless, if necessary, the parties may file a
motion to extend case deadlines.
To the extent the defendants challenge the relevance or scope of the discovery
requests, because the defendants have not responded to the requests and the parties
have not had the opportunity to meet and confer on any responses or objections, the
court will not address the relevance or scope of the requests. However, in light of the
plaintiff’s admission Interrogatory Nos. 2-6 and Request Nos. 1 and 14 are not related to
a conflict of interest inquiry, the defendants are excused from answering such discovery
requests. Upon consideration,

IT IS ORDERED:
1.

The defendants’ Motion for Protective Order (Filing No. 26) is denied.

2.

The plaintiff’s Motion for Enlargement of Time (Filing No. 29) is granted.

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3.

The defendants shall have until August 21, 2015, to respond to the

plaintiff’s discovery requests, as modified in this Order.

ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk
of the Court within fourteen (14) days after being served with a copy of this Order.
Failure to timely object may constitute a waiver of any objection. The brief in support of
any objection shall be filed at the time of filing such objection. Failure to file a brief in
support of any objection may be deemed an abandonment of the objection.

Dated this 30th day of July, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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