Shah v. Metropolitan Life Insurance Company

Filing 68

OPINION AND ORDER granting in part and denying in part 49 Motion to Compel Discovery Responses. Signed by Magistrate Judge Elizabeth Preston Deavers on 5/22/2018. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MUKESH R. SHAH, M.D.,
Plaintiff,
Case No. 2:16-cv-1124
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers

v.

METROPOLITAN LIFE INSURANCE
COMPANY, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Compel Discovery Responses
(“Motion to Compel”) (ECF No. 49), Defendant The Paul Revere Life Insurance Company’s
(“Paul Revere”) Brief in Opposition to Motion of Plaintiff to Compel Discovery Responses (ECF
No. 51), and Plaintiff’s Reply in Support of Motion to Compel (ECF No. 52). For the reasons
that follow, Plaintiff’s Motion to Compel is GRANTED IN PART and DENIED IN PART.
I.
A.

Factual Allegations
In 1991, New England Mutual Life Insurance Company (“New England Mutual”) issued

an individual policy of disability income insurance to Plaintiff (“the Policy”). (Amended
Complaint, ¶ 5, ECF No. 13 (“Am. Compl.”).) Defendant, Metropolitan Life Insurance
Company (“Met Life”), assumed the obligations under the terms of the Policy. (Id. at ¶ 6.)1

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Paul Revere had an agreement with New England Mutual and then with Met Life, under
which Paul Revere agreed to provide certain services on individual disability income policies
issued by New England Mutual, including the administration of claims. (Id. at ¶ 7.)

Under the Policy, Defendants are obligated to pay to Plaintiff, an interventional
cardiologist, benefits for loss due to “injury” or “sickness” until Plaintiff reaches the age of 65
(“the Policy”). (Amended Complaint, ¶¶ 5, 6, 9–10, ECF No. 13 (“Am. Compl.”).) Subject to
certain terms and conditions, the rider under the Policy obligates Defendants to pay a maximum
monthly amount due to “injury,” but requires Defendants to pay Plaintiff only “a fraction” of that
amount if Plaintiff’s disability is due to “sickness.” (Id. at ¶¶ 11, 21.)
On or around September 12, 2013, Plaintiff became disabled due to pain in his shoulders
and cervical spine. (Id. at ¶¶ 16–17.) Thereafter, Plaintiff gave notice of his condition and claim
under the Policy. (Id. at ¶¶ 18–19.) On June 5, 2014, Defendants notified Plaintiff that his claim
for Total Disability Benefits was approved due to cervical spine neuropathy and shoulder pain.
(Id. at ¶ 20.) On December 1, 2014, Defendants notified Plaintiff that they classified his
condition as a “sickness” rather than an “injury,” significantly decreasing the monthly benefits
Plaintiff was to receive. (Id. at ¶¶ 21–23.) After Plaintiff requested a review of that decision by
an Appeals Specialist, Defendants notified Plaintiff on May 6, 2015, that the decision that his
condition was due to a sickness was correct. (Id. at ¶ 24.)
B.

Procedural Background
On November 28, 2016, Plaintiff filed the instant action, alleging that Defendants

wrongfully determined that Plaintiff’s disability was due to sickness in order to avoid paying
Plaintiff the maximum monthly amount and asserting claims for breach of contract, declaratory
judgment, and bad faith. (ECF No. 13.) On January 25, 2017, the Court issued a scheduling
order pursuant to the provisions of Federal Rule of Civil Procedure 16(b) and ordered, inter alia,
that all discovery be completed by June 2, 2017, and that dispositive motions be filed by June 30,
2017. (ECF No. 10.) Plaintiff filed the Amended Complaint on March 10, 2017. (ECF No. 13.)

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The Court later denied Defendants’ requests to bifurcate the merits of Plaintiff’s claims for trial,
but by agreement of the parties, a separate trial phase for punitive damages will be held should
the jury find that punitive damages are appropriate. (ECF No. 34 at 4.) The Court also denied
Defendants’ request to bifurcate discovery. (ECF No. 41.) The deadlines for completing
discovery and for filing dispositive motions were ultimately extended to February 15, 2018, and
March 15, 2018, respectively. (ECF No. 48.)2
On December 27, 2016, Plaintiff served his First Set of Combined Requests for
Admissions, Interrogatories, and Requests for Production of Documents. (ECF No. 49-1.)
Defendants served responses and objections to the first set of discovery on February 7, 2017.
(ECF Nos. 49-2, 49-3, 49-4.) On April 7, 2017, Plaintiff sent a letter to defense counsel,
advising that Defendants’ discovery responses and/or objections were deficient. (ECF No. 49-5.)
On May 25, 2017, Plaintiff again advised via letter that Defendants’ discovery responses were
not sufficient. (ECF No. 49-6.) On June 5, 2017, Defendants responded to the letters of April 7,
2017, and May 25, 2017, contending that its discovery responses were sufficient and advising
that they “would be more than happy to discuss any of these issues if need be.” (ECF No. 51-1
at PAGEID # 451.)
Defendants responded to Plaintiff’s Second Set of Requests for Production of Documents
on June 12, 2017. (ECF No. 49-7.) Defendants later responded to Plaintiff’s Third Set of
Requests for Production of Documents on October 10, 2017. (ECF No. 49-8.) On November
15, 2017, Defendants responded to two letters sent by Plaintiff regarding the sufficiency of
Defendants’ discovery responses and objections. (ECF No. 51-2.)

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While Defendants timely filed a Motion for Partial Summary Judgment (ECF No. 61),
Plaintiff’s response has been held in abeyance pending resolution of the Motion to Compel and
Plaintiff’s Motion in Limine (ECF No. 61). (ECF No. 64.)
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On January 24, 2018, Plaintiff filed his Motion to Compel, seeking an order compelling
responses or supplemental responses to thirteen different discovery requests and representing
that he has exhausted all extrajudicial efforts. (ECF No. 49.) Defendants have opposed the
Motion to Compel (ECF No. 51), and with the filing of Plaintiff’s Reply (ECF No. 52), this
matter is ripe for resolution.
II.
A.

Exhaustion
Federal Rule of Civil Procedure 37 authorizes a party to file a motion for an order

compelling discovery if another party fails to respond to discovery requests if the party moving
for an order compelling disclosure or discovery “include[s] 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.” Fed. R. Civ. P. 37(a); see also S.D. Ohio
Civ. R. 37.1 (“[M]otions . . . relating to discovery shall not be filed in this Court . . . unless
counsel have first exhausted among themselves all extrajudicial means for resolving the
differences.”).
Here, Plaintiff attaches a certification, averring that counsel has exhausted all
extrajudicial efforts to resolve the discovery disputes. (Affidavit of J. Stephen Teetor, ECF No.
49-9.) Defendants, however, deny that Plaintiff has exhausted all extrajudicial efforts,
contending that Plaintiff “conveniently omits” Defendants’ letters of May 25, 2017, and
November 15, 2017, in his recitation of the parties’ discovery communication. (ECF No. 51 at
3–4 (citing ECF Nos. 51-1, 51-2)). Defendants contend that Plaintiff never responded to their
letters and that the Motion to Compel “blindsided” them. (Id. at 4.) Defendants therefore take
the position that the Motion to Compel should be denied because Plaintiff did not comply with

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Local Rule 37.1 and the Court’s prior Order (ECF No. 42 (advising that the parties must comply
with Federal Rule of Civil Procedure 37 and Local Rule 37.1 before filing a discovery-related
motion)). (ECF No. 51 at 7–8.) Plaintiff insists in reply that he did not intentionally omit
Defendants’ letters in his recitation in the Motion to Compel, arguing that Defendants’ reliance
on these letters elevates “form over substance” because “[i]n no way did Defendants respond any
more meaningfully in their letters than they did in their discovery responses, Defendants again
simply maintained their objections or pointed Plaintiff to thousands of documents in response to
specific discovery requests.” (ECF No. 52 at 1.)
Plaintiff’s argument is not well taken. Plaintiff never responded to Defendants’ letters of
June 5, 2017, and November 15, 2017. Accordingly, the record reflects that Plaintiff could have
done more to resolve, or narrow the scope, of the present discovery disputes. While Plaintiff
now insists that these letters were not “meaningful[]” responses and the parties had reached
impasse, he still does not explain why he did not file a motion to compel at those times instead of
waiting months until shortly before the discovery deadline to file the Motion to Compel.
Nevertheless, in light of the current posture of the litigation and under the circumstances of this
particular case, the Court will address the merits of the Motion to Compel. The parties, however,
are reminded that the Court and Civil Rules no longer countenance drive-by efforts to resolve
discovery disputes. The Court expects purposeful negotiation and meaningful cooperation
among counsel in order “to secure the just, speedy, and inexpensive determination of every
action and proceeding.” Fed. R. Civ. P. 1.
B.

Scope of Discovery and Federal Rules of Civil Procedure 26, 33, and 34
Determining the scope of discovery is within this Court’s discretion. Bush v. Dictaphone

Corp., 161 F.3d 363, 367 (6th Cir. 1998). As the United States Court of Appeals for the Sixth

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Circuit has recognized, “[t]he scope of discovery under the Federal Rules of Civil Procedure is
traditionally quite broad.” Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir. 1998).
Federal Rule of Civil Procedure 26(b) identifies the acceptable scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1); see also Fed. R. Civ. P. 33(a)(2) (“An interrogatory may relate to any
matter that may be inquired into under Rule 26(b).”), 34(a) (“A party may serve on any other
party a request within the scope of Rule 26(b)[.]”). In considering the scope of discovery, the
Court may balance Plaintiff’s “right to discovery with the need to prevent ‘fishing expeditions.’”
Conti v. Am. Axle & Mfg., Inc., 326 F. App’x 900, 907 (6th Cir. 2009) (quoting Bush, 161 F.3d at
367).
“[T]he movant bears the initial burden of showing that the information is sought is
relevant.” Prado v. Thomas, No. 3:16-cv-306, 2017 WL 5151377, at *1 (S.D. Ohio Oct. 19,
2017) (citing Gruenbaum v. Werner, 270 F.R.D. 298, 302 (S.D. Ohio 2010)). If the movant
makes this showing, “then the burden shifts to the non-movant to show that to produce the
information would be unduly burdensome.” Id. (citing O’Malley v. NaphCare, Inc., 311 F.R.D.
461, 463 (S.D. Ohio 2015)); see also Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015
amendment (stating that a party claiming undue burden or expense “ordinarily has far better
information—perhaps the only information—with respect to that part of the determination” and
that a “party claiming that a request is important to resolve the issues should be able to explain
the ways in which the underlying information bears on the issues as that party understands
them”).
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III.
The Court now considers in turn each category of requested information identified in the
Motion to Compel.
A.

“Similar claims files containing decisions on ‘sickness’ versus ‘injury’” (ECF No. 49
at 5 (citing First Set of Requests for Production No. 6; Second Set of Requests for
Production Nos. 3, 4; Third Set of Requests for Production No. 7))
According to Plaintiff, “[t]he core dispute essentially turns on Plaintiff’s First Requests

for Production of Documents No. 6[.]” (ECF No. 49 at 3.) This request and Defendants’
response provide as follow:
[FIRST SET OF] REQUEST [FOR PRODUCTION NO.] 6:
Produce the complete claims files of the insureds that you have
determined to have suffered an “injury” rather than a “sickness,” or a “sickness”
rather than an “injury” for the last ten years.
RESPONSE:
In addition to the General Objections and Responses, Defendant objects to this
Request on the following grounds: (1) it is overly broad and unduly burdensome,
particularly with regard to time and scope; (2) “the burden or expense of the
proposed discovery outweighs its likely benefit.” Fed. R Civ. P. 26(b)(2)(C)(iii);
(3) it seeks documents which are neither relevant to the claims or defenses of the
parties to this litigation; (4) it seeks documents which constitute or contain
confidential, proprietary documents and/or trade secrets; (5) seeks documents
protected by the attorney-client and/or attorney work-product privileges; seeks
documents protected by third parties’ right of privacy; and (6) under the authority
of State Farm v. Campbell, 123 S. Ct. 1513 (2003), improperly seeks information
regarding alleged conduct that bears no relation or nexus to the harm allegedly
suffered and/or improperly seeks documents pertaining to alleged out-of-state
conduct.
(ECF No. 49-2 at 7.)
The other interrogatories, requests for production of documents, and Defendants’
responses also related to this category are as follow:
[SECOND SET OF] REQUEST [FOR PRODUCTION NO.] 3: Produce all of
Dr. Jerry Beavers’ claims opinions regarding injury and sickness determinations
provided for Defendants from January 2013 onward, with the claimants’ names
redacted.
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RESPONSE:
Defendant objects to this request on the ground that it seeks documents that are
not relevant to any party’s claims or defenses in this case, nor proportional to the
needs of the case. This action relates to the manner in which plaintiff’s disability
claim was handled. The reports or opinions of Dr. Jerry Beavers that relate to
other insureds or other claims are not relevant to the issues in this case. Defendant
further objects that the request is overbroad in scope, and that searching for the
requested documents would be time-consuming, unduly burdensome and
oppressive. Defendant also objects that pursuant to State Farm v. Campbell, 123
S. Ct. 1513 (2003), the requested discovery is improper because it seeks
information pertaining to “out-of-state” conduct that bears no relation or nexus to
the harm allegedly suffered by plaintiff.
In addition, Defendant objects on grounds that the request seeks documents that
contain personal, private information regarding other insureds, who have a right
to privacy. Finally, Defendant objects on the ground and to the extent that the
request seeks documents that constitute or contain confidential and/or proprietary
business information. Defendant is withholding responsive documents based on
the objections stated above.
(ECF No. 49-7 at 4.)
[SECOND SET OF] REQUEST [FOR PRODUCTION NO.] 4: Produce all
injury and sickness claims determinations made by Pamela Fox provided for
Defendants from January 2013 onward, with the claimants’ names redacted.
RESPONSE:
Defendant objects to this request on the ground that it seeks documents that are
not relevant to any party’s claims or defenses in this case, nor proportional to the
needs of the case. This action relates to the manner in which Plaintiff’s disability
claim was handled. The claims decisions rendered by Pamela Fox that relate to
other insureds or other claims are not relevant to the issues in this case.
Defendant further objects that the request is overbroad in scope, and that
searching for the requested documents would be time-consuming, unduly
burdensome and oppressive. Defendant also objects that pursuant to State Farm
v. Campbell, 123 S. Ct. 1513 (2003), the requested discovery is improper because
it seeks information pertaining to “out-of-state” conduct that bears no relation or
nexus to the harm allegedly suffered by plaintiff.
In addition, Defendant objects that the request seeks documents that contain
personal, private information regarding other insureds, who have a right to
privacy. Finally, Defendant objects on the ground and to the extent that the
request seeks documents that constitute or contain confidential and/or proprietary
business information.

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(Id. at 4–5.)
[THIRD SET OF] REQUEST [FOR PRODUCTION NO.] 7: Produce
documents, including claims files, for all cases from 2013 to the present where the
insured claimed his or her disability was due to injury and the Defendants claims
[sic] the disability was due to sickness.
RESPONSE:
Defendants object to this request on the following grounds: (1) it is vague and
ambiguous, particularly with regard to the phrase “documents, including claim
files;” (2) it is overbroad and unduly burdensome, particularly in regard to (i) time
and scope, (ii) it is out of proportion to the needs of the case, (iii) to the extent it
seeks documents that would not pertain to the Plaintiff s claim, and iv) to the
extent the request encompasses definitions and demands documents without
taking into account the manner in which Defendants’ documents are kept, which
would require Defendants to search extensive files to determine what document, if
any, exist that may fall within the scope of the request; (3) it seeks documents
which are not relevant to the claims or defenses of any party to this litigation; (4)
it seeks confidential and/or proprietary business records; and (5) it seeks
information and/or documents containing information that pertains to other
insureds, which are protected by third party rights of privacy.
(ECF No. 49-8 at 6.)
Plaintiff devotes a majority of the Motion to Compel detailing his disputed discovery
requests and exchanges with Defendants rather than explaining why each category of
information is relevant to his claims. (See generally ECF No. 49.) After identifying the disputed
discovery requests and his attempts to obtain the information, Plaintiff asserts that, through all of
his requests, he “is trying to determine the practice and motivation for the insurance company to
conclude he suffers from a ‘sickness’ instead of ‘injury’ and to learn about similar claims files
handled by the same insurance company decision-makers that might show a pattern of finding
‘sickness’ instead of ‘injury.’” (Id. at 5.)
Defendants argue that Plaintiff has not met his burden of showing that “similar” claim
files containing decisions on “sickness” versus “injury” are relevant to any of his claims. (Id. at
11.) Defendants also argue that these requests are overly broad, unduly burdensome, and not

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proportionate to the needs in this case. (Id. at 8–11.) In reply, Plaintiff insists that the requested
information is relevant to his “claims and proportional to the needs of the case” because “[t]his
case turns on whether or not Plaintiff’s disability was caused by injury or sickness, and that
involves significant benefits which have surely been analyzed and debated and decided in prior
claims.” (ECF No. 52 at 4.) Plaintiff also rejects Defendants’ burden and proportionality
arguments, contending that “Defendant has made absolutely no disclosure to Plaintiff or to this
Court as to any efforts whatsoever it has made to actually locate all or any part of this
information—rather, they simply say it takes time and effort to do so, more than they would
prefer.” (Id.)
Plaintiff’s arguments are not well taken. Even if the requested information is relevant to
his claims, the fact that this information “might show a pattern” helpful to Plaintiff’s theory does
not persuade this Court that the burden is proportional to the needs of this case. As set forth in
detail above, the discovery requests in this category seek the following information: other
insureds’ claims files where Defendants determined that the insureds suffered an “injury” rather
than a “sickness,” or vice versa, for the last ten years (First Request for Production No. 6); all
claims opinions by Jerry Beavers regarding injury and sickness determinations from January
2013 to the present (Second Request for Production No. 3); all injury and sickness claims
determinations by Pamela Fox from January 2013 to the present (Second Request for Production
No. 4); and documents, including claims files, from 2013 to the present where the insured claims
his or her disability was due to injury and the “Defendants claims the disability was due to
sickness” (Third Request for Production No. 7). Defendants specifically represent that
identifying and documents responsive to these requests would be burdensome, time-consuming,
and detract from regular business activities. (ECF No. 51 at 8–11 (citing Declaration of Cyndie

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Bowie, ECF No. 51-4, at ¶¶ 1–7; Affidavit of Stan Dowd, Jr., ECF No. 51-5, at ¶¶ 1–6).)3 For
example, as Defendants make clear, Dr. Beavers completed 445 medical activities related to 184
different claims during the two-year period of March 1, 2013, through March 1, 2015, alone.
(Bowie Declaration, ¶¶ 2–3.) These claims are a small snapshot of the time periods requested by
Plaintiff (the last ten years and January 2013 to the present): Paul Revere administered 14,808
Individual Disability claims in just 2014. (Id. at ¶ 5.)
Moreover, Defendants would have to search these claims manually to determine which
claims, if any, may be responsive to Plaintiff’s requests:
Neither Met Life nor Paul Revere maintains data indicating the substance of an
in-house physician’s medical opinion, or the medical issue upon which the
physician is asked to opine. To determine the substance of Dr. Beaver’s [sic]
communication to the claims personnel who requested his advice on the 184
claims referenced in Paragraph 3 above, a manual review of Dr. Beaver’s [sic]
input would need to be performed.
(Id. at ¶ 4.) Defendants further explain that in order to identify similar claim files containing
decisions on sickness versus injury, they would have to search thousands of claim files one at a
time because the current system does not provide a way to electronically search across multiple
claim files for a word or topic:
3.
NaviLink, Unum Group’s claims management software, is a proprietary
system developed by Unum that helps organize, manage, and archive the data,
documents and transactions associated with claims submitted to Unum’s
insurance company subsidiaries. Each claim submission is assigned a NaviLink
Claim Number, which is used to identify and collect all future information and
documents connected to the claim. The NaviLink online system presents the
information about a single claim to the service staff in a cohesive set of screen
views; the many documents associated with the claim are presented in a separate
image viewer attached to NaviLink. There is currently no way to systematically
search across multiple claim files in NaviLink in order to identify claims which
3

Ms. Bowie is a paralegal for Unum Group, Pall Revere’s parent company. (Declaration
of Cyndie Bowie, ECF No. 51-4, ¶ 1 (“Bowie Declaration”).) Mr. Dowd works for Unum Group
as an Information Technology Executive. (Affidavit of Stan Dowd, Jr., ECF No. 51-5, ¶ 1
(“Dowd Affidavit”).)
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contain a certain word or phrase. In order to even attempt to write a program that
might enable the company to run such a search, we would need to write unique
programs for each database to pull information. However, the output would still
need to be manually reviewed for accuracy. Because I have not had to attempt
such an exercise previously, I cannot estimate with any certainty the amount of
resources, time and expense it would take to construct such a search. Such an
attempt would detract resources from our regular business activities at great
hardship to the company. Further, such an effort would only be useful for this
case.
4.
The data records and documents that appear on the NaviLink online
system as a cohesive view of the claim are actually stored in multiple files,
databases, and repositories. These separate records and documents are not
directly connected electronically and are in multiple electronic formats and
storage media. In fact, there is technically no such thing as a “NaviLink Claim
File;” what appears as a cohesive view of a claim on NaviLink is generated from
multiple, disparate sources, using sophisticated software.
5.
In an effort to produce the “claim file” in this case, the Navi Link data
and documents were printed as .tif image(s) via the “Print Claim Folder” option
within NaviLink. The .tif images were then converted into .PDF files using
Adobe Acrobat 9 Professional. The .PDF files were subsequently OCR’d using a
product called ABBYY Recognition Server (Version 3.5) (“ABBYY”) to make
the files fully searchable. After the claim file was run through the ABBYY
process, the file was bate stamped for production.
6.
The OCR’ing process is the only known way to produce a NaviLink
file in searchable format.
(Dowd Affidavit, ¶¶ 3–6.)
In short, the uncontroverted Bowie Declaration and Dowd Affidavit establish that
locating and producing the information spanning multiple years would be unduly burdensome,
imposing a hardship on regular business activities and is disproportionate to the needs of this
case. Based on this record and considering the relevant factors under Rule 26(b)(1), the Court is
not persuaded that the relevance of the requested information—which Plaintiff asserts “might
show a pattern of finding ‘sickness’ instead of ‘injury[]’” (ECF No. 49 at 5 (emphasis added))—
outweighs the burden and expense of producing it or is proportional to the needs of this
individual case. Fed. R. Civ. P. 26(b)(1); Conti, 326 F. App’x at 907. Accordingly, as it relates
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to “[s]imilar claims files containing decisions on ‘sickness’ versus ‘injury’” (First Set of
Requests for Production No. 6; Second Set of Requests for Production Nos. 3, 4; Third Set of
Requests for Production No. 7), the Motion to Compel is DENIED.
B.

“Documents showing how the insurance company has determined whether its
insureds have suffered a ‘sickness’ versus an ‘injury’” (ECF No. 49 at 5 (citing First
Set of Interrogatory Nos. 3, 5; First Set of Request for Production Nos. 2, 3; First
Set of Requests for Admission No. 6))
The interrogatories, requests for production of documents, requests for admission, and

Defendants’ responses related to this category are as follow:
[FIRST SET OF] INTERROGATORY [NO.] 3: Identify documents and
witnesses that support your contention in Paragraph 10 of your Answer that
Plaintiffs disability was due to a “sickness” under the Policy.
ANSWER:
Paul Revere objects to this Interrogatory on the following grounds: (1) the
request, including all discrete subparts, exceeds the number of written
interrogatories that a party may serve under Federal Rule of Civil Procedure
33(a)(l ); (2) to the extent the request, as formulated, does not seek factual
information but only legal conclusions; and (3) to the extent the request seeks
information protected by the attorney-client privilege and/or the work product
doctrine.
Subject to and without waiving the foregoing objections, Paul Revere refers
Plaintiff to the non-privileged portions of the claim file; the applicable policy;
Defendant’s Initial Disclosures; documents produced with Defendant’s Response
to Plaintiff's First Request for Production of Documents; and the claims manual in
effect at the time Plaintiffs policy was administered. Paul Revere reserves the
right to supplement this response as discovery and investigation continue.
(ECF No. 49-3 at 3.)
[FIRST SET OF] INTERROGATORY [NO.] 5: State the “necessary
predicates or requirements” and identify documents and witnesses that support
your contention in Paragraph 41 of your Answer that the Plaintiff has failed to
satisfy the necessary predicates or requirements for benefits under the Policy and,
therefore, judgment should be entered in favor of Defendant.

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ANSWER:
Paul Revere objects to this Interrogatory on the following grounds: (1) the
request, including all discrete subparts, exceeds the number of written
interrogatories that a party may serve under Federa1 Rule of Civil Procedure
33(a)(l); (2) to the extent the request, as formulated, does not seek factual
information but only legal conclusions; and (3) to the extent the request seeks
information protected by the attorney-client privilege and/or the work product
doctrine.
Subject to and without waiving the foregoing objections, Paul Revere refers
Plaintiff to the non-privileged portions of the claim file; the applicable policy;
Defendant’s Initial Disclosures; documents produced with Defendant's Response
to Plaintiffs First Request for Production of Documents; and the claims manual in
effect at the time Plaintiffs policy was administered. Paul Revere reserves the
right to supplement this response as discovery and investigation continue.
(Id. at 4.)
[FIRST] REQUEST [FOR PRODUCTION OF DOCUMENTS NO.] 2:
Produce all documents, charts and spreadsheets (regardless of medium) that in
any way, address the methods and means of determining whether your insureds,
including but not limited to Plaintiff, have suffered a “sickness” versus an
“injury.”
RESPONSE:
Defendant objects to this request on the grounds that: (1) it is vague and
ambiguous and could be interpreted to seek claim files of other insureds; (2) it is
overly broad and unduly burdensome, particularly with regard to time and scope;
(3) it seeks documents which are neither relevant to the subject matter of this
litigation; 3) to the extent it seeks documents protected by attorney-client and/or
attorney work product privileges; (4) it seeks documents containing or
constituting confidential proprietary information and/or trade secrets; and (5) it
seeks information outside Defendant’s custody or control.
Subject to and without waiving the objections, Defendant will produce a copy of
the claims manual in effect and available to claims personnel at the time the claim
form was received as well as all changes made to the manual from that date until
the decision was made to close the claim. Defendant further refers Plaintiff to the
claim file and subject policy for complete, chronological information related to
the decision made regarding Plaintiff’s claim for benefits.
(ECF No. 49-2 at 4.)

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[FIRST] REQUEST [FOR PRODUCTION OF DOCUMENTS NO.] 3:
Produce all communications (whether internal within your organization or
external communication), whether in paper or electronic form, that, in any way,
address the methods and means of determining whether your insureds have
suffered a “sickness” versus an “injury,” including but not limited to the claim of
Plaintiff.
RESPONSE:
Defendant incorporates the General Objections set forth above and further objects
to this request on the following grounds: (1) it is overly broad, vague, and
ambiguous particularly regard to the terms “all communications”, “external
communication”, and “methods and means of determining”; (2) it is over broad in
time and scope and it is out of proportion with the needs of the case; (3) to the
extent that it seeks information and documents protected by the attorney- client
privilege and/or attorney work product doctrine; (4) it is vague and ambiguous
and could be interpreted to seek claim files of other insureds; (5) it seeks
documents which are neither relevant to the subject matter of this litigation; (6) it
seeks documents containing or constituting confidential proprietary information
and/or trade secrets; and (7) it seeks information outside Defendant’s custody or
control.
Subject to and without waiving the foregoing objections, Defendant produces the
policy; and the non-privileged portions of the claim file which is a detailed,
written chronological account of the handling of Plaintiff’s claim, which
encompasses actions taken or decisions made regarding the claim, including, but
not limited to, the claim decision letter located at bates stamp TNE/MET-CL-IDINL9273410-004360 through TNE/MET-CL-IDI-NL9273410-004365.
Additionally, Defendants have conducted a diligent search and made reasonable
inquiry concerning the personal notes and drafts of claims personnel involved
with Plaintiff’s claim. The search did not identify any other documents. A
diligent search and reasonable inquiry was made concerning archived e-mails
using various search terms, including Mukesh R. Shah, 9273410, 191D218095,
and Plaintiff s social security number. Defendant refers Plaintiff to the e-mail file
produced herewith as a result of this search.
Defendant reserves the right to supplement this response as discovery and
investigation continue.
(Id. at 5.)
[FIRST SET OF] REQUEST [FOR ADMISSION NO.] 6: Admit that Plaintiff
is disabled because of injury, not disease. If your response to the preceding
Request for Admission was anything other than an unqualified admission, state
the basis for your denial or qualification.

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RESPONSE:
Paul Revere objects to this Interrogatory because the request, as formulated, does
not seek factual information but only legal conclusions. Subject to and without
waiving the foregoing objection, Paul Revere denies this Request. Paul Revere
refers Plaintiff to the non-privileged portions of Plaintiff’s claim file, including,
but not limited to, the policy and the claim decision letters which speak for
themselves.
(ECF No. 49-4 at 4.)
Although Plaintiff does not specifically explain why these particular requests are
relevant, the Court assumes that Plaintiff’s relevance argument identified above (ECF No. 49 at
5) also applies to this category of information. However, in light of the uncontroverted Bowie
Declaration and Dowd Affidavit and for the reasons previously discussed, the Court finds that
proportionality favors Defendants in this instance.
Moreover, to the extent that the requests in this category may seek information related to
only Plaintiff, Plaintiff has not explained why each of the responses is deficient. While Plaintiff
attaches copies of correspondence that reflect the parties’ disagreement regarding the various
discovery requests, the Court declines to undertake the burden of sifting through the exhibits or
to speculate why Plaintiff characterizes each response as deficient. Kendle v. Whig Enter., LLC,
No. 15-cv-1295, 2016 WL 898569, at *5 (S.D. Ohio Mar. 9, 2016) (“Because the Court declines
to speculate as to why plaintiff characterizes the opposing defendants’ supplemental
interrogatory answer as deficient, the Motion to Compel is DENIED as it relates to the opposing
defendants' answer to Interrogatory No. 2.” (emphasis in original); Meads v. Georgia Pacific
Corp., No. 08-cv-507, 2010 WL 11530342, at *2 (E.D. Ky. Mar. 23, 2010) (denying motion to
compel where, inter alia, the court is “left to speculate as to why plaintiff believes the discovery
responses are insufficient”); cf. Emerson v. Novartis Pharm. Corp., 446 F. App’x 733, 736, 2011

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WL 3701835, at *4 (6th Cir. 2011) (“‘[J]udges are not like pigs, hunting for truffles’ that might
be buried in the record.”) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).
Finally, in this category, Plaintiff also challenges the sufficiency of Defendants’ answer
to First Set of Request for Admission (“RFA”) No. 6. (ECF No. 49 at 2–3, 5.) The Court notes
that the proper procedural mechanism by which Plaintiff should challenge Defendants’ response
to RFA No. 6 falls under Rule 36(a)(6) instead of motion to compel under Rule 37. Snyder v.
Fleetwood RV, Inc., No. 2:13-cv-1019, 2016 WL 339972, at *7 (S.D. Ohio Jan. 28, 2016). In its
discretion, however, the Court will construe Plaintiff’s Motion to Compel as it relates to this
discovery request as having been filed pursuant to Rule 36(a)(6). Id. Even doing so, the Court is
not persuaded that Defendants’ objection and response were improper. Plaintiff has not specified
why Defendants’ answer to RFA No. 6 is deficient, and the Court declines the invitation to
fabricate an argument to that effect. For all of these reasons, as it relates to “[d]ocuments
showing how the insurance company has determined whether its insureds have suffered a
‘sickness’ versus an ‘injury’” (First Set of Interrogatory Nos. 3, 5; First Set of Request for
Production Nos. 2, 3; First Set of Requests for Admission No. 6), the Motion to Compel is
DENIED.
C.

“Bonus plans for the decision makers showing an interest in the outcome of a
decision adverse to plaintiff” (ECF No. 49 at 5 (citing Second Set of Requests for
Production No. 2))
The document request and Defendants’ response related to this category of discovery are

as follow:
[SECOND SET OF] REQUEST [FOR PRODUCTION NO.] 2:
Produce
documents regarding the compensation plan including, but not limited to, bonuses
and/or rewards, for all employees of Defendants that worked on any part of
Plaintiff’s disability claim under the policy from 2013 onward.

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RESPONSE:
Defendant objects to this request on the following grounds: (1) it seeks documents
that are not relevant to the claims or defenses of any party to this action, nor is the
request proportional to the needs of the case, especially considering the
importance of this discovery in resolving the issue in the case, and considering
that the burden and expense of the proposed discovery outweighs its likely
benefit; (2) it is overly broad and unduly burdensome in time and scope and to the
extent such documents would contain material unrelated to Plaintiffs claim; (4) to
the extent it seeks documents that contain confidential and/ or proprietary
information; and (5) it seeks documents containing private information pertaining
to third parties who have a right to privacy.
Subject to and without waiving the foregoing objections, Unum Life will produce
copies of the following documents:
• 2015 Annual Incentive Plan
• 2015 Proxy Statement for Unum Group
(ECF No. 49-7 at 4.)
Plaintiff contends that this question, among others, goes “to the heart of the bad faith
claim[.]” (ECF No. 49 at 1.) Defendants stand by their objections and insist that they have fully
responded to Plaintiff’s request by producing the 2015 Annual Incentive Plan. (ECF No. 51 at
5.) Defendants further argue that this information is irrelevant to Plaintiff’s claims. (Id. at 11–
12.) In reply, Plaintiff argues that Defendants’ response is deficient because it points to, inter
alia, the “2015 Annual Incentive Plan,” which Plaintiff complains “is a general company plan
that Plaintiff would have no way of knowing which employee qualified for what bonus based on
unknown criteria.” (ECF No. 52 at 4–5.)
The Court agrees with Plaintiff that this information is relevant to his claims as bonus /
rewards could affect determinations of Plaintiff’s claim. See Raab v. Unum Grp., No. 2:10–cv–
186, 2011 WL 12614882, at *2 (S.D. Ohio June 6, 2011) (finding, inter alia, that salary and
bonus are relevant because they “are factors that could affect claims determinations”) (internal
quotation marks omitted). Based on the present record, however, it is not clear whether or not
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additional documents beyond what Defendants have already produced exist or why it would be
burdensome to produce if additional responsive documents exist. Accordingly, as it relates to
“[b]onus plans for the decision makers showing an interest in the outcome of a decision adverse
to plaintiff” (Second Set of Requests for Production No. 2), the Motion to Compel is
GRANTED. Defendants are ORDERED to produce documents responsive to this request
(other than the documents previously produced, if they exist) within FOURTEEN (14) DAYS
from the date of this Opinion and Order, subject to an appropriate protective order. If no
additional responsive documents exist, Defendants are ORDERED to confirm such in writing
within FOURTEEN (14) DAYS.
D.

“Other ‘confirming letters’ from Dr. Beavers designed to paper the claims file in
favor of the insurance company” (ECF No. 49 at 6 (citing Third Set of Requests for
Production No. 8))
The document request and Defendants’ response related to this category of discovery are

as follow:
[THIRD SET OF] REQUEST [FOR PRODUCTION NO.] 8:
Produce all
documents since January 1, 2013, including from claims files, in which Dr.
Beavers sent “confirming letters” to medical providers to claimants such as the
one bates stamped: TNE/MET-CL-IDI-NL9273410-004244 through TNE/METCL-IDINL9273410-004245.
RESPONSE:
Defendants object to this request on the following grounds: (1) it is vague and
ambiguous, particularly with regard to the phrases “documents, including claim
files” and “confirming letters;” (2) it is overbroad and unduly burdensome,
particularly in regard to (i) time and scope, (ii) it is out of proportion to the needs
of the case, (iii) to the extent it seeks documents that would not pertain to the
Plaintiff s claim, and iv) to the extent the request encompasses definitions and
demands documents without taking into account the manner in which Defendants’
documents are kept, which would require Defendants to search extensive files to
determine what document, if any, exist that may fall within the scope of the
request; (3) it seeks documents which are not relevant to the claims or defenses of
any party to this litigation; (4) it seeks confidential and/or proprietary business
records; and (5) it seeks information and/or documents containing information

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that pertains to other insureds, which are protected by third party rights of
privacy.
(ECF No. 49-8 at 6–7.)
Plaintiff does not explain in the Motion to Compel or Reply why this specific request is
relevant. (See generally ECF Nos. 49, 52.) Accordingly, Plaintiff has not met his initial burden
of showing that the information sought is relevant. Prado v. Thomas, No. 3:16-cv-306, 2017 WL
5151377, at *1 (S.D. Ohio Oct. 19, 2017).
Moreover, even if the Court assumes that Plaintiff’s relevance argument that “similar
claims files handled by the same insurance company decision-makers that might show a pattern
of finding ‘sickness’ instead of ‘injury[]’” (ECF No. 49 at 5) also may apply to this category of
documents, the Court is not persuaded that any possible relevance is proportional to the burden
of producing this information. As discussed above in connection with the first two categories of
requested documents, Defendants represent that identifying and documents responsive to this
request would be burdensome, time-consuming, and detract from regular business activities.
(ECF No. 51 at 5.) For example, Dr. Beavers completed 445 medical activities related to 184
different claims during the period of March 1, 2013, through March 1, 2015, alone, which
represent a small percentage of the thousands of Individual Disability claims administered in
2014 alone. (Bowie Declaration, ¶¶ 2–3, 5.) Defendants would have to search these claims
manually to determine which claims, if any, may be responsive to Plaintiff’s requests. (Id. at ¶
4.) Defendants further explain that in order to identify other “confirming letters” from Dr.
Beavers, they would have to search thousands of claim files one at a time because the current
system does not provide a way to electronically search across multiple claim files for a word or
topic. (Dowd Affidavit, ¶¶ 3–6.) Accordingly, as it relates to “[o]ther ‘confirming letters’ from
Dr. Beavers designed to paper the claims file in favor of the insurance company” (Third Set of
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Requests for Production No. 8), the Motion to Compel is DENIED. Fed. R. Civ. P. 26(b)(1);
Conti, 326 F. App’x at 907.
E.

“Other claims files in which the insurance company rejected the opinion on
disability of the treating physician and instead relied on in-house, paid, and bonused
staff” (ECF No. 49 at 6 (citing Third Set of Requests for Production of Documents
No. 9))
The document request and Defendants’ response related to this category of discovery are

as follow:
[THIRD SET OF] REQUEST [FOR PRODUCTION NO.] 9:
Produce all
documents, including claims files from January 2013 to the present, in which
Defendants rejected an insured’s treating physician’s opinion and relied instead
on Defendants’ in-house staff.
RESPONSE:
Defendants object to this request on the following grounds: (1) it is vague and
ambiguous, particularly with regard to the phrase “documents, including claim
files,” “rejected” and “relied on;” (2) it is overbroad and unduly burdensome,
particularly in regard to (i) time and scope, (ii) it is out of proportion to the needs
of the case, (iii) to the extent it seeks documents that would not pertain to the
Plaintiff s claim, and iv) to the extent the request encompasses definitions and
demands documents without taking into account the manner in which Defendants’
documents are kept, which would require Defendants to search extensive files to
determine what document, if any, exist that may fall within the scope of the
request; (3) it seeks documents which are not relevant to the claims or defenses of
any party to this litigation; (4) it seeks confidential and/or proprietary business
records; and (5) it seeks information and/or documents containing information
that pertains to other insureds, which are protected by third party rights of
privacy.
(ECF No. 49-8 at 7.)
Again, Plaintiff does not explain why this specific request is relevant. (See generally
ECF Nos. 49, 52.) Accordingly, Plaintiff has not met his initial burden of showing that the
information sought is relevant. Prado, 2017 WL 5151377, at *1.
Even if the Court assumed that Plaintiff advanced a relevance argument that this
information “might show a pattern of finding ‘sickness’ instead of ‘injury[]’” (ECF No. 49 at 5),

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the Court is not persuaded that any possible relevance outweighs the burden of producing this
information for the reasons discussed earlier in this Opinion and Order. (Bowie Declaration, ¶¶
2–7; Dowd Affidavit, ¶¶ 2–6.) Moreover, as Defendants point out, determining whether
Defendants “rejected the opinion” of a treating physician instead of “relying on” Defendants’
own physicians require judgment calls by the reviewer (ECF No. 51 at 4), increasing the burden
of production. For all of these reasons, as it relates to “[o]ther claims files in which the insurance
company rejected the opinion on disability of the treating physician and instead relied on inhouse, paid, and bonused staff” (Third Set of Requests for Production of Documents No. 9), the
Motion to Compel is DENIED.
F.

“Documents and witnesses that support the insurance companies’ [sic] contention in
Paragraph 42 of its Answer that it complied with and performed all of the promises,
obligations, and duties under Dr. Shah’s insurance Policy” (ECF No. 49 at 6 (citing
First Set of Interrogatories No. 6))
The interrogatory and Defendants’ answer related to this category of discovery are as

follow:
[FIRST SET OF] INTERROGATORY [NO.] 6: Identify documents and
witnesses that support your contention in Paragraph 42 of your Answer that
Defendant complied with and performed all of the promises, obligations, and
duties under the Policy.
ANSWER:
Paul Revere objects to this Interrogatory on the following grounds: (1) the
request, including all discrete subparts, exceeds the number of written
interrogatories that a party may serve under Federal Rule of Civil Procedure
33(a)(l); (2) to the extent the request, as formulated, does not seek factual
information but only legal conclusions; and (3) to the extent the request seeks
information protected by the attorney-client privilege and/or the work product
doctrine.
Subject to and without waiving the foregoing objections, Paul Revere refers
Plaintiff to the non-privileged portions of the claim file; the applicable policy;
Defendant’s Initial Disclosures; documents produced with Defendants Response
to Plaintiff’s First Request for Production of Documents; and the claims manual

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in effect at the time Plaintiffs policy was administered. Paul Revere reserves the
right to supplement this response as discovery and investigation continue.
(ECF No. 49-3 at 4–5.)
Plaintiff has not explained why Defendants’ answer is deficient. The Court declines to
speculate as to why Plaintiff believes this answer is not sufficient. Accordingly, as it relates to
“[d]ocuments and witnesses that support the insurance companies’ [sic] contention in Paragraph
42 of its Answer that it complied with and performed all of the promises, obligations, and duties
under Dr. Shah’s insurance Policy” (First Set of Interrogatories No. 6), the Motion to Compel is
DENIED. See Kendle, 2016 WL 898569, at *5; Meads, 2010 WL 11530342, at *2.

IV.
For the reasons discussed above, Plaintiff’s Motion to Compel Discovery Responses
(ECF No. 49) is GRANTED IN PART and DENIED IN PART, consistent with the foregoing.
IT IS SO ORDERED.

Date: May 22, 2018

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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