Tolbert v. Cox Enterprises, Inc. et al

Filing 14

SCHEDULING ORDER re 13 Proposed Discovery Plan/Scheduling Order filed by Aetna Life Insurance Company, Cox Enterprises, Inc. See Order for deadlines. Signed by Magistrate Judge Peggy A. Leen on 12/28/16. (Copies have been distributed pursuant to the NEF - ADR)

Case 2:16-cv-02223-JAD-PAL Document 13 Filed 12/19/16 Page 1 of 4

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Gordon & Rees LLP

300 S. Fourth Street, Suite 1550
Las Vegas, NV 89101

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ROBERT S. LARSEN (SBN: 7785)
PHIL W. SU (SBN: 10450)
GORDON & REES LLP
300 S. Fourth Street, Ste. 1550
Las Vegas, NV 89101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants
COX ENTERPRISES, INC. and
AETNA LIFE INSURANCE COMPANY
JULIE A. MERSCH (SBN: 4695)
LAW OFFICE OF JULIE A. MERSCH
701 S. 7th Street
Las Vegas, NV 89101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorney for Plaintiff
TODD TOLBERT

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TODD TOLBERT,

)
)
Plaintiff,
)
)
vs.
)
COX ENTERPRISES, INC., as Plan )
Administrator of the Cox Enterprises, )
Inc. Long-Term Disability Coverage )
Plan; AETNA LIFE INSURANCE )
COMPANY, as Claims Administrator )
for the Cox Enterprises, Inc. Long- )
)
Term Disability Coverage Plan;
DOES I through V; and ROE
)
CORPORATIONS I through V,
)
inclusive,
)
)
Defendants. )

CASE NO. 2:16-cv-02223-JAD-PAL
STIPULATED DISCOVERY PLAN
AND SCHEDULING ORDER
SPECIAL SCHEDULING REVIEW
REQUESTED

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Plaintiff Todd Tolbert (“Plaintiff”) and Defendants Cox Enterprises, Inc. and
Aetna Life Insurance Company (collectively “Defendants”), by and through
-1STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER

Case 2:16-cv-02223-JAD-PAL Document 13 Filed 12/19/16 Page 2 of 4

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counsel of record, hereby jointly move this Court for a special scheduling review

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of the parties’ proposed discovery plan in this matter.

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I.

Rule 26(f) Conference.

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Pursuant to FRCP 26(f), a meeting was held on November 22, 2016 between

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counsel for the parties. Counsel discussed the claims and legal issues at the

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meeting and agreed that the standard discovery plan is not best-suited for this

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lawsuit for the reasons set forth below.

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II.

Nature of Case and Purpose of Special Review.

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This dispute involves Plaintiff TOLBERT’S claim for long-term disability

Gordon & Rees LLP

benefits under a group insurance plan administered by Defendant COX

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300 S. Fourth Street, Suite 1550
Las Vegas, NV 89101

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ENTERPRISES, INC. (“Cox Enterprises” or “Plan Administrator”) for the benefit

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of its employees. COX ENTERPRISES delegated the administration of claims

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under the plan to Defendant AETNA LIFE INSURANCE COMPANY (“AETNA”

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or “Claims Administrator”). Plaintiff’s complaint alleges a claim under the

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Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq.

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(“ERISA”). Discovery may be limited to the administrative record for Plaintiff’s

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administrative claim and appeal. The administrative record includes, inter alia,

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Plaintiff’s medical records, Plaintiff’s arguments for the payment of benefits, the

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Plan Administrator’s and Claim Administrator’s decisions, Defendant’s claim

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investigation and reports of medical reviewers, and the long-term disability plan

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documents.

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Plaintiff brought suit alleging that Aetna improperly denied his claim for

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disability benefits. ERISA regulates employee benefit plans such as the Plan under

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which Plaintiff is seeking benefits. Defendants contend that the issue in this case is

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whether Aetna’s decision to terminate LTD benefits constitutes an abuse of

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discretion.

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III.

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The parties have conferred and agreed as follows:

Proposed Plan.

-2STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER

Case 2:16-cv-02223-JAD-PAL Document 13 Filed 12/19/16 Page 3 of 4

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A.

Production and Review of the Administrative Record: Defendants are

a proposed bates-stamped administrative record for Plaintiff’s review by January

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9, 2017. Plaintiff agrees to waive the initial disclosure requirements of Federal

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Rules of Civil Procedure 26(a)(1), et seq. On or before January 23, 2017,

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Plaintiff will notify Defendants of his position as to the following: (1) whether

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Plaintiff believes that the record is complete or any additional documents should be

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added to the administrative record; (2) whether Plaintiff believes that any

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documents contained in the proposed administrative record should be omitted, and

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(3) whether Plaintiff believes that any discovery beyond the administrative record

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Gordon & Rees LLP

in possession of the administrative record in this matter. Defendants will produce

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300 S. Fourth Street, Suite 1550
Las Vegas, NV 89101

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should be conducted.

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B.

Filing of Administrative Record/Motion for Discovery: On or before

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March 16, 2017, the Defendants will file a joint administrative record with this

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Court, the contents of which will be agreed upon by Plaintiff. In the event the

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parties cannot reach an agreement on the joint administrative record, Plaintiff will

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file any motion(s) that Plaintiff believes is appropriate, including but not limited to

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moving to conduct discovery beyond the administrative record and/or moving to

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supplement or omit from the administrative record, by May 18, 2017 (pending

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determination on any motions, the parties will file on May 18, 2017, those portions

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of the administrative record on which they do agree).

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C.

Briefing Schedule for Legal Issues/Merits of the Case: The primary

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legal issues in this matter are the following: (1) the standard of review to be

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applied to Defendants’ decision to deny Plaintiff’s claim for long-term disability

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benefits; and (2) whether, applying that standard of review, Plaintiff has met his

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burden of proving the decision should be overturned.

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If a joint administrative record is timely filed and Plaintiff does not seek to

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conduct discovery beyond the administrative record, or to supplement or omit from

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the administrative record, the parties propose that FRCP Rule 52 motions be filed
-3STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER

Case 2:16-cv-02223-JAD-PAL Document 13 Filed 12/19/16 Page 4 of 4

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no later than June 8, 2017. Thereafter, the parties will file opposing memoranda by

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June 22, 2017, and reply memoranda by July 6, 2017.

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If Plaintiff does seek and is permitted discovery beyond the administrative

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record, the above deadlines will be suspended. The parties will work together and

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with the Court to prepare a new scheduling order, and may seek a status conference

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to address any outstanding discovery or other issues.

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WHEREFORE, the parties jointly request that this Court adopt the proposed

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discovery and case schedule set forth herein.

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Dated: December 19, 2016

GORDON & REES LLP

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Gordon & Rees LLP

300 S. Fourth Street, Suite 1550
Las Vegas, NV 89101

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By:

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/s/ Phil W. Su
Robert S. Larsen
Phil W. Su
300 S. Fourth Street, Suite 1550
Las Vegas, NV 89101
Attorneys for Defendants
COX ENTERPRISES, INC. and
AETNA LIFE INSURANCE
COMPANY

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Dated: December 19, 2016

LAW OFFICE OF JULIE A. MERSCH

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By:

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/s/ Julie A. Mersch
Julie A. th
Mersch
701 S. 7 Street
Las Vegas, NV 89101
Attorney for Plaintiff
TODD TOLBERT

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IT IS SO ORDERED:

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DATED: December 28, 2016

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_______________________________
UNITED STATES MAGISTRATE JUDGE

1112670/30836617v.1

-4STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER