HAYES v. AMERICAN INTERNATIONAL GROUP et al

Filing 284

MEMORANDUM AND/OR OPINION SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 6/3/13. 6/4/13 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSEPH T. HAYES
v.
AMERICAN INTERNATIONAL
GROUP, et al.

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CIVIL ACTION

NO. 09-2874

MEMORANDUM AND ORDER
ELIZABETH T. HEY, U.S.M.J.

June 3, 2013

In this action, pro se Plaintiff seeks long term disability benefits under the terms of
a disability policy issued by The United States Life Insurance Company/American
International Group (collectively “U.S. Life”), and U.S. Life has counter-claimed for the
return of benefits paid under the policy. Presently before the Court is U.S. Life’s motion
for additional discovery (Doc. 277).1 For the reasons that follow, Defendant’s motion
will be granted in part and denied in part.
I.

RELEVANT PROCEDURAL HISTORY2
By Order dated April 6, 2012, Judge McLaughlin permitted an extra fourteen

hours for Plaintiff’s deposition – seven hours for Defendant U.S. Life and seven hours for
Defendant DRMS – to be held in addition to twelve hours of deposition which had
previously occurred. See Doc. 127. Significant discovery-related motion practice

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The Honorable Mary A. McLaughlin has referred this matter to the undersigned.
See Doc. 278.
2

More detailed procedural histories of this convoluted case may be found in prior
memoranda and orders. See, e.g., Docs 213, 241 & 275.

occurred over the next several months, ultimately resulting in U.S. Life taking seven
additional hours of deposition over the course of four days, with no single deposition
increment exceeding two hours. See Doc. 245.3 Based on Plaintiff’s stipulation of
dismissal as to DRMS, DRMS did not conduct any further deposition of Plaintiff. See
Doc. 270 (Stipulation and Order of Dismissal with Prejudice signed by Judge
McLaughlin).
The discovery deadline in this matter has long since passed. However, on April
19, 2013, I entered an Order allowing discovery-related motions based upon new matters
arising out of Plaintiff’s deposition. See Doc. 266. On May 3, 2013, U.S. Life filed the
present motion seeking additional discovery arising out of Plaintiff’s deposition. See
Doc. 277. Plaintiff filed a response on May 15, 2013, U.S. Life filed a reply in support of
its motion on May 23, 2013, and Plaintiff filed a sur-reply on May 29, 2013. See Docs.
280-82. The matter is now fully briefed.
II.

DISCUSSION
A trial court has broad discretion to fashion discovery-related orders. See

Florsheim Shoe Co., Div. of Interco, Inc. v. United States, 744 F.2d 787, 797 (Fed. Cir.
1984) (“Questions of the scope and conduct of discovery are, of course, committed to the
discretion of the trial court.”). In the Third Circuit, “it is well recognized that the federal

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Plaintiff was deposed by counsel for U.S. Life for two hours on April 8, 2013,
April 12, 2013, and April 17, 2013, and for one hour on April 19, 2013. Although the
deposition transcripts are not part of the motion record, I personally supervised the
deposition and therefore have personal knowledge of what transpired.
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rules allow broad and liberal discovery.” Pacitti v. Macy’s, 193 F.3d 766, 777-78 (3d
Cir. 1999) (citations omitted).
A.

Plaintiff’s 2005 and 2006 Appointment Books

Defendant U.S. Life first seeks to compel production of Plaintiff’s 2005 and 2006
appointment books. See Doc. 277 ¶¶ 2-3; Doc. 281 at 1-3. The appointment books are
clearly relevant for the purpose of showing Plaintiff’s work activities during the period of
time during which he represented that he was not gainfully employed. Also, they were
previously requested in discovery, and at the deposition Plaintiff testified that he did not
understand why they were not previously produced because he gave all of his
appointment books to his prior attorneys.
As for Plaintiff’s 2005 appointment book, Plaintiff avers in his sur-reply that he
located an original of the appointment book in digital format and has provided same to
defense counsel. See Doc. 282 at 4. As a result, U.S. Life’s motion will be denied as
moot as to the 2005 appointment book.
As for the 2006 appointment book, Plaintiff argues in his response that he
previously provided copies of the appointment books for the years 2002 through 2010,
and that in any event he gave the original appointment book to his former counsel. See
Doc. 280 at 2. In his sur-reply, Plaintiff additionally argues that the 2006 appointment
book is irrelevant because defense counsel did not question him about it during his
deposition. See Doc. 282 at 4. Plaintiff is incorrect. As noted, the 2006 appointment
book was included in discovery requests made earlier in this case and therefore ought to
have been provided along with the other appointment books, and Plaintiff testified that he
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could not explain why the 2006 appointment book had not been produced. Thus, there is
rationale for distinguishing between the 2005 and 2006 appointment records in this
regard. Additionally, U.S. Life has not requested that Plaintiff produce an original of his
2006 appointment book, but rather a true and correct copy of the appointment book.
Therefore, to the extent Plaintiff possesses either the original or a copy of the
appointment book, he must provide it. To the extent Plaintiff does not possess either the
original or a copy of the 2006 appointment book and it is in the possession of his former
counsel, Plaintiff is directed to obtain it from counsel and then provide it to U.S. Life.
B.

Plaintiff’s Fee Agreements

Defendant U.S. Life also seeks to compel production of Plaintiff’s fee agreements
with his former counsel, or in the alternative seeks leave to serve subpoenas on the
lawyers and/or firms to produce their fee arrangements and documents evidencing the
amount of fees paid from 2007 to the present. See Doc. 277 ¶¶ 5-10; Doc. 281 at 3-4.
U.S. Life does not explain the relevance of Plaintiff’s lawyer’s fees other than to say that
Plaintiff’s tax returns show the receipt of over $300,000, and that when asked where the
money is, Plaintiff testified that he used it to pay his lawyers. Thus, U.S. Life appears to
argue that the records are relevant to test Plaintiff’s credibility. To effectuate this request,
U.S. Life also seeks to compel the names and addresses of all New Jersey lawyers
Plaintiff paid from the sale of assets in 2009, and copies of documents evidencing
payments made to New Jersey lawyers and/or firms including cancelled checks and bank
statements. See Doc. 281 at 4.

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Plaintiff does not appear to dispute the relevance of the requested information, but
does dispute his ability to provide U.S. Life the records it seeks. Plaintiff argues that two
of his former attorneys4 will not provide their fee agreements to him based on an
assertion of privilege, and that he is unable to obtain fee agreements from his other
former attorneys5 because “there is no longer communication between these attorneys
and Plaintiff Pro Se.” Doc. 280 at 3. Apparently in place of the fee agreements, Plaintiff
provides a list estimating the amounts he paid to each of his former attorneys. See
Spreadsheet, attached to Doc. 280 at Exh. 1.
I agree with U.S. Life that the attorney-client privilege is not a basis for counsel’s
refusal to share fee information so long as nothing is revealed about the services
performed. Compare Montgomery County v. Microvote, 175 F.3d 296, 304 (3d Cir.
1999) (“[T]he fee agreement letter is not privileged.”), and In re Grand Jury
Investigation, 631 F.2d 17, 19 (3d Cir. 1980) (attorney-client privilege does not protect
fee agreements absent strong probability that disclosure would implicate client in
criminal activity for which client sought legal advice), with Fidelity & Deposite Co. of
Maryland v. McCulloch, 168 F.R.D. 516, 523 (E.D. Pa. 1996) (billing records privileged
to extent they reveal nature of services performed). In light of this principle, and given
that Plaintiff does not object to providing the information, I conclude that U.S. Life is

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Identified as William Cunningham and Michael Nolan. See Doc. 280 at 3.

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Identified as Clifford Swift, Damian Zillas, Mark Seltzer, E and David Hoffman.
See Doc. 280 at 3.

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entitled to records evidencing legal fees billed by and paid to his attorneys in the time
frame requested. However, lacking any information about the nature of the fee
agreements between Plaintiff and his former attorneys, I am concerned that the fee
agreements could reveal information about the legal services performed. Therefore, I
will not order disclosure of the fee agreements.
In his sur-reply, Plaintiff clarifies that he does not oppose providing the names and
addresses of his former counsel for the purpose of the issuance of subpoenas by U.S.
Life. See Doc. 282 at 5. Accordingly, the motion will be granted to the extent U.S. Life
may serve subpoenas on the lawyers and law firms identified by Plaintiff to produce
records showing only amounts billed and/or paid to them by Plaintiff from 2007 to the
present.
C.

Records Related to Dr. Javier

Lastly, U.S. Life seeks to compel production of documents related to medical
products obtained for Dr. Javier, an OB/GYN physician, or in the alternative seeks leave
to subpoena Dr. Javier for any documents and communications pertaining to Plaintiff
ordering him medical products. See Doc. 277 ¶ 11; Doc. 281 at 4-5. U.S. Life argues
that these records are relevant to test Plaintiff’s credibility given that Plaintiff testified
that he purchased the products as a favor because he could get them at a discount and not
for use in his own practice. Plaintiff counters that the information sought is irrelevant
and in any event cannot be obtained without hardship. See Doc. 280 at 4; Doc. 282 at 12.

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Although the records may have some relevance to Plaintiff’s medical practice
which is at issue in the case, I will deny U.S. Life’s motion in this regard. There is no
reason these records were not the subject of prior discovery practice, and U.S. Life has
not shown that its need for the records came to light as a result of the recent deposition.6
An appropriate Order follows.

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As part of his response to the present motion, Plaintiff once again requests a
formal hearing to address his allegations of fraud and collusion between defense counsel
and New Jersey State agencies. See Doc. 280 at 2 & 5; Doc. 282 at 2-3 & 5. As a result
of this Order and for reasons previously stated, see, e.g., Doc. 275 at 8, Plaintiff’s request
is denied as moot.
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