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)

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Case 2:16-cv-02223-JAD-PAL Document 13 Filed 12/19/16 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 Gordon & Rees LLP 300 S. Fourth Street, Suite 1550 Las Vegas, NV 89101 11 12 13 ROBERT S. LARSEN (SBN: 7785) PHIL W. SU (SBN: 10450) GORDON & REES LLP 300 S. Fourth Street, Ste. 1550 Las Vegas, NV 89101 Telephone: (702) 577-9316 Facsimile: (702) 255-2858 rlarsen@gordonrees.com psu@gordonrees.com 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: (702) 387-5868 Facsimile: (702) 387-0109 jam@merschlaw.com Attorney for Plaintiff TODD TOLBERT 14 UNITED STATES DISTRICT COURT 15 DISTRICT OF NEVADA 16 17 18 19 20 21 22 23 24 25 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 26 27 28 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 1 counsel of record, hereby jointly move this Court for a special scheduling review 2 of the parties’ proposed discovery plan in this matter. 3 I. Rule 26(f) Conference. 4 Pursuant to FRCP 26(f), a meeting was held on November 22, 2016 between 5 counsel for the parties. Counsel discussed the claims and legal issues at the 6 meeting and agreed that the standard discovery plan is not best-suited for this 7 lawsuit for the reasons set forth below. 8 II. Nature of Case and Purpose of Special Review. 9 This dispute involves Plaintiff TOLBERT’S claim for long-term disability Gordon & Rees LLP benefits under a group insurance plan administered by Defendant COX 11 300 S. Fourth Street, Suite 1550 Las Vegas, NV 89101 10 ENTERPRISES, INC. (“Cox Enterprises” or “Plan Administrator”) for the benefit 12 of its employees. COX ENTERPRISES delegated the administration of claims 13 under the plan to Defendant AETNA LIFE INSURANCE COMPANY (“AETNA” 14 or “Claims Administrator”). Plaintiff’s complaint alleges a claim under the 15 Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. 16 (“ERISA”). Discovery may be limited to the administrative record for Plaintiff’s 17 administrative claim and appeal. The administrative record includes, inter alia, 18 Plaintiff’s medical records, Plaintiff’s arguments for the payment of benefits, the 19 Plan Administrator’s and Claim Administrator’s decisions, Defendant’s claim 20 investigation and reports of medical reviewers, and the long-term disability plan 21 documents. 22 Plaintiff brought suit alleging that Aetna improperly denied his claim for 23 disability benefits. ERISA regulates employee benefit plans such as the Plan under 24 which Plaintiff is seeking benefits. Defendants contend that the issue in this case is 25 whether Aetna’s decision to terminate LTD benefits constitutes an abuse of 26 discretion. 27 III. 28 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 1 A. Production and Review of the Administrative Record: Defendants are a proposed bates-stamped administrative record for Plaintiff’s review by January 4 9, 2017. Plaintiff agrees to waive the initial disclosure requirements of Federal 5 Rules of Civil Procedure 26(a)(1), et seq. On or before January 23, 2017, 6 Plaintiff will notify Defendants of his position as to the following: (1) whether 7 Plaintiff believes that the record is complete or any additional documents should be 8 added to the administrative record; (2) whether Plaintiff believes that any 9 documents contained in the proposed administrative record should be omitted, and 10 (3) whether Plaintiff believes that any discovery beyond the administrative record 11 Gordon & Rees LLP in possession of the administrative record in this matter. Defendants will produce 3 300 S. Fourth Street, Suite 1550 Las Vegas, NV 89101 2 should be conducted. 12 B. Filing of Administrative Record/Motion for Discovery: On or before 13 March 16, 2017, the Defendants will file a joint administrative record with this 14 Court, the contents of which will be agreed upon by Plaintiff. In the event the 15 parties cannot reach an agreement on the joint administrative record, Plaintiff will 16 file any motion(s) that Plaintiff believes is appropriate, including but not limited to 17 moving to conduct discovery beyond the administrative record and/or moving to 18 supplement or omit from the administrative record, by May 18, 2017 (pending 19 determination on any motions, the parties will file on May 18, 2017, those portions 20 of the administrative record on which they do agree). 21 C. Briefing Schedule for Legal Issues/Merits of the Case: The primary 22 legal issues in this matter are the following: (1) the standard of review to be 23 applied to Defendants’ decision to deny Plaintiff’s claim for long-term disability 24 benefits; and (2) whether, applying that standard of review, Plaintiff has met his 25 burden of proving the decision should be overturned. 26 If a joint administrative record is timely filed and Plaintiff does not seek to 27 conduct discovery beyond the administrative record, or to supplement or omit from 28 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 1 no later than June 8, 2017. Thereafter, the parties will file opposing memoranda by 2 June 22, 2017, and reply memoranda by July 6, 2017. 3 If Plaintiff does seek and is permitted discovery beyond the administrative 4 record, the above deadlines will be suspended. The parties will work together and 5 with the Court to prepare a new scheduling order, and may seek a status conference 6 to address any outstanding discovery or other issues. 7 WHEREFORE, the parties jointly request that this Court adopt the proposed 8 discovery and case schedule set forth herein. 9 Dated: December 19, 2016 GORDON & REES LLP 10 Gordon & Rees LLP 300 S. Fourth Street, Suite 1550 Las Vegas, NV 89101 11 By: 12 13 14 15 /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 16 17 18 Dated: December 19, 2016 LAW OFFICE OF JULIE A. MERSCH 19 By: 20 21 22 /s/ Julie A. Mersch Julie A. th Mersch 701 S. 7 Street Las Vegas, NV 89101 Attorney for Plaintiff TODD TOLBERT 23 24 IT IS SO ORDERED: 25 DATED: December 28, 2016 26 27 28 _______________________________ UNITED STATES MAGISTRATE JUDGE 1112670/30836617v.1 -4STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER

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