Viani v. The Lincoln National Life Insurance Company et al, No. 3:2021cv00004 - Document 25 (S.D. Cal. 2021)
Court Description: ORDER granting in part and denying in part 23 Discovery Motion. Signed by Magistrate Judge Daniel E. Butcher on 9/21/2021. (jpp)
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Viani v. The Lincoln National Life Insurance Company et al Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL LAWRENCE VIANI, Plaintiff, 12 13 v. 14 THE LINCOLN NATIONAL LIFE INSURANCE CO., A LINCOLN FNANCIAL GROUP COMPANY fka LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, 15 16 17 Case No.: 21-cv-00004-BEN (DEB) 18 ORDER ON JOINT DISCOVERY MOTION [DKT. NO. 23] Defendant. 19 20 I. INTRODUCTION 21 Before the Court is the parties’ Joint Discovery Motion. Dkt. No. 23. Plaintiff 22 Lawrence Viani (“Plaintiff”) seeks discovery outside the administrative record, which 23 Defendant The Lincoln National Life Insurance Company (“Defendant”) opposes. Id. 24 For the reasons set forth below, the Court GRANTS in part and DENIES in part 25 Plaintiff’s request to compel responses to the discovery at issue. 26 /// 27 /// 28 /// 1 21-cv-00004-BEN (DEB) Dockets.Justia.com 1 II. PROCEDURAL HISTORY 2 Plaintiff’s Complaint alleges violations of the Employee Retirement Income 3 Security Act of 1974, 29 U.S.C. §§ 1001 et seq. (“ERISA”). Dkt. No. 1. Plaintiff seeks 4 benefits under a long-term disability (“LTD”) policy issued by Defendant. Id. at 5, 7. 5 a. Allegations in Plaintiff’s Complaint 6 From July 2011 through December 15, 2017, Qualcomm employed Plaintiff as a 7 Senior Staff Engineer. Id. at 2, 4. Plaintiff participated in Qualcomm’s Welfare Benefit 8 Plan (the “Plan”), which provided LTD benefits through Defendant. Id. at 2–3. 9 Plaintiff experienced Petit Mal seizures as a teenager. Id. at 4. In 2003, Plaintiff 10 suffered a Grand Mal seizure and was prescribed Oxcarbazepine. Id. The medication 11 diminished Plaintiff’s seizure activity. Id. In September 2016, however, Plaintiff 12 experienced two Grand Mal seizures while asleep and “experience[ed] an increase in 13 seizure activity of approximately one per month in the late evening.” Id. In January 2017, 14 Plaintiff suffered a twenty-minute seizure and convulsed for three to five of those minutes. 15 Id. Plaintiff was diagnosed with epilepsy and prescribed Vimpat. Id. 16 In March 2017, Plaintiff “experienced a seizure that lasted about two [] minutes” 17 following a visit to urgent care earlier that day. Id. Beginning on April 21, 2017, “Plaintiff 18 was unable to return to work” because his seizures had become increasingly intense, more 19 frequent, and longer in duration. Id. On October 17, 2017, Plaintiff attempted to return to 20 work, but the stress of the job “adversely affected his medical condition precluding Plaintiff 21 from continuing his work after December 15, 2017.” Id. Plaintiff alleges he “continues to 22 be disabled to this date.” Id. 23 In April 2017, Plaintiff applied for LTD benefits. Dkt. No. 23 at 10. Defendant 24 “determined Plaintiff was entitled to LTD benefits under the Plan . . . .” and paid Plaintiff 25 $8038.10 per month. Dkt. No. 1 at 4–5. On March 13, 2020, Defendant terminated 26 Plaintiff’s benefits, asserting “Plaintiff should be able to physically perform sedentary 27 work.” Id. at 5. 28 2 21-cv-00004-BEN (DEB) 1 On July 22, 2020, Plaintiff administratively appealed Defendant’s termination of 2 benefits. Id. On September 16, 2020, Defendant “denied Plaintiff’s administrative appeal 3 stating that because Plaintiff’s subjective complaints of cognitive limitations (fatigue, loss 4 of concentration/memory) were not supported by appropriate testing to determine its 5 validity it was not considered as a limitation in determining if Plaintiff was able to return 6 to work as an engineer.” Id. at 6. 7 On January 4, 2021, Plaintiff filed this case pursuant to 29 U.S.C. §1132(a)(1)(B). 8 Id. at 2. Plaintiff alleges Defendant “ignored the opinions of Plaintiff’s treating physicians, 9 Plaintiff’s vocational rehabilitation counselor, the cognitive testing (showing impaired 10 scores on tests of language, diminished right-hand speed dexterity consistent with left 11 frontal dysfunction and mildly impaired score on visual memory), and Plaintiff’s own 12 subjective complaints.” Id. at 5–6. Plaintiff asserts “[t]his denial was wrongful and 13 constitutes a breach of [Defendant’s] obligations to provide benefits under the terms of the 14 PLAN and a breach of the fiduciary duties to provide a full and fair review of the claim.” 15 Id. at 6. 16 b. Plaintiff’s Discovery Requests 17 Plaintiff requests the Court compel responses to Interrogatory Nos. 5, 6, 8, 9, and 18 11–18. Dkt. No. 23 at 22. These Interrogatories seek information regarding reviewing 19 physicians Drs. Pearce (hired through Exam Coordinators Network) and Marehbian (hired 20 through Network Medical Review) whom Defendant retained to review Plaintiff’s medical 21 records and opine on Plaintiff’s alleged LTD. See id. at 12, 22–23. Specifically, Plaintiff’s 22 Interrogatories seek: 23 24 25 1) The number of claims [Defendant] referred to each for the years 2017 2020 and the monies paid to each on an annual basis[.] (Interrogatories 5, 6, 13, 14) 26 27 2) On an annual basis the number of reviews by each that resulted in a denial of benefits by [Defendant.] (Interrogatories 11, 12, 15, 17) 28 3 21-cv-00004-BEN (DEB) 1 3) The number of reviews that resulted in a granting of benefits by [Defendant.] (Interrogatories 8, 9, 16, 18). 2 3 Id. at 22; see also Declaration of Barbara A. Casino, Dkt. No. 23-2 (“Casino Decl.”), Ex. 3. 4 Plaintiff also requests the Court compel responses to Requests For Production 5 (“RFP”) 5, and 9–14, which seek: 6 7 [RFP] NO. 5: All claims’ manuals, claims’ handling manuals, procedure manuals, guides, appeals books, instructional and training documents available to your claims analysts during the pendency of Plaintiff’s claim for disability benefits that discuss: .... c. evaluation and use of medical reviewers, d. use of independent medical examiners, g. evaluation of subjective complaints/symptoms, h. evaluation of cognitive issues, i. evaluation of medication side effects, j. how to evaluate whether an occupation is gainful k. questions to be presented to medical reviewers, l. evaluation of seizure disorders/epilepsy, m. evaluation of fatigue.1 8 9 10 11 12 13 14 15 16 17 [RFP] NO. 9: All documents relating to financial bonuses, incentives, stock options or any other type of compensation program (beyond regular salary or wages) in effect for any individuals handling, managing, overseeing or investigating Plaintiff’s claim and appeal for long-term disability benefits, including for all persons identified in response to interrogatory No. 1. 18 19 20 21 [RFP] NO. 10: All documents that describe any relationship between you and Network Medical Review Co. (MNR) including, but not limited to, contracts, memoranda of understanding, service agreements, vendor agreements, policy letters and invoices in effect during 2019. 22 23 24 [RFP] NO. 11: All documents that describe any relationship between you and Genex Services LLC (Genex) and/or Exam Coordinators Network 25 26 27 1 28 Because Plaintiff narrowed his request regarding RFP No. 5, the Court omits certain portions. Dkt. No. 23 at 27–28. 4 21-cv-00004-BEN (DEB) 1 2 including, but not limited to, contracts, memoranda of understanding, service agreements, vendor agreements, policy letters and invoices in effect during 2019. 3 4 5 6 7 8 9 10 11 12 [RFP] NO. 12: All documents that constitute or describe policies and procedures for selecting medical reviewers for disability claims and/or appeals during 2019. [RFP] NO. 13: All documents sent by MNR and received by you describing, evidencing, constituting, referring, or relating the business services that MNR would provide if engaged by you, including, but not limited to, any claims manuals, statements of MNR’s mission, philosophy, descriptions of physician procedures, referral guidelines, general descriptions of disability evaluation procedures, descriptions of the independent medical evaluation services provided by MNR, descriptions of the independent medical evaluation services provided by MNR, descriptions of MNR’s medical consultation fee schedules, and descriptions of MNR’s guidelines for reviewing physicians, from 2017 to present. 13 14 15 16 17 18 19 20 21 22 [RFP] NO. 14: All documents sent by Genex and/or Exam Coordinators Network and received by you describing, evidencing, constituting, referring, or relating the business services that Genex and/or Exam Coordinators Network would provide if engaged by you, including, but not limited to, any claims manuals, statements of Genex and/or Exam Coordinators Network’s mission, philosophy, descriptions of physician procedures, referral guidelines, general descriptions of disability evaluation procedures, descriptions of the independent medical evaluation services provided by Genex and/or Exam Coordinators Network, descriptions of the independent medical evaluation services provided by Genex and/or Exam Coordinators Network, descriptions of Genex and/or Exam Coordinators Network’s medical consultation fee schedules, and descriptions of Genex and/or Exam Coordinators Network’s guidelines for reviewing physicians, from 2017 to present. 23 24 25 Dkt. No. 23 at 27–28, 30–31, 33–34, 36; see also Casino Decl. at Ex. 4. III. ANALYSIS 26 Plaintiff argues the requested discovery is relevant and appropriate because it bears 27 on the credibility of Defendant’s medical experts and whether Defendant conducted a full 28 and fair review. Id at 6–14, 22–25, 27–29, 30–31, 33–35, 36. Defendant asserts the 5 21-cv-00004-BEN (DEB) 1 discovery at issue was produced, does not exist, or is improper because the Court’s de novo 2 review of this ERISA case is limited to the administrative record. Dkt. No. 23 at 14–21. 3 a. Legal Standards 4 “When a plan does not confer discretion on the administrator ‘to determine eligibility 5 for benefits or to construe the terms of the plan,’ a court must review the denial of benefits 6 de novo . . . ‘regardless of whether the administrator or fiduciary is operating under a 7 possible or actual conflict of interest.’” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 8 963 (9th Cir. 2006) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 9 (1989)).2 10 A de novo review of an ERISA case is generally limited to the administrative record. 11 Opeta v. Nw. Airlines Pension Plan for Cont. Emps., 484 F.3d 1211, 1217 (9th Cir. 2007). 12 Evidence beyond the administrative record is considered only in exceptional 13 circumstances. Id. (“Agreeing with the Third, Fourth, Seventh, Eighth, and Eleventh 14 Circuits, we held that [during de novo review] extrinsic evidence could be considered only 15 under certain limited circumstances” and adopting the Fourth Circuit’s rule that only 16 exceptional circumstances warrant discovery outside the administrative record.) (citing 17 Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, 46 F.3d 938, 943–44 (9th 18 Cir. 1995)); see also Gonda v. Permanente Med. Grp., Inc., 300 F.R.D. 609, 613 (N.D. 19 Cal. 2014) (“In an attempt to further ERISA’s policy of keeping proceedings inexpensive 20 and expeditious, the Ninth Circuit has placed significant restrictions on district courts’ 21 ability to consider evidence outside the administrative record.”); Mongeluzo, 46 F.3d 938, 22 943–44 (9th Cir. 1995) (Evidence outside the administrative record, therefore, is 23 permissible “only when circumstances clearly establish that additional evidence is 24 25 26 27 28 2 If a plan does confer discretion to the administrator, the standard of review shifts to abuse of discretion and conflict of interest evidence becomes a factor for consideration. Abatie, 458 F.3d at 965–66. 6 21-cv-00004-BEN (DEB) 1 necessary to conduct an adequate de novo review of the benefit decision.”) (quoting 2 Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1027 (4th Cir. 1993)). 3 4 The Ninth Circuit has adopted the standards articulated by the Fourth Circuit in evaluating whether exceptional circumstances exist: 5 6 7 8 9 10 11 [C]laims that require consideration of complex medical questions or issues regarding the credibility or medical experts; the availability of very limited administrative review procedures with little or no evidentiary record; the necessity of evidence regarding interpretation of the terms of the plan rather than specific historical facts; instances where the payor and the administrator are the same entity and the court is concerned about impartiality; claims which would have been insurance contract claims prior to ERISA; and circumstances in which there is additional evidence that the claimant could not have presented in the administrative process. 12 13 Opeta, 484 F.3d at 1217 (quoting Quesinberry, 987 F.2d at 1027). “[T]he introduction of 14 new evidence is [not] required in such cases,” however, and “[a] district court may well 15 conclude that the case can be properly resolved on the administrative record without the 16 need to put the parties to additional delay and expense.” Quesinberry, 987 F.2d at 1027; 17 see also Nguyen v. Sun Life Assurance Co. of Canada, No. 14-cv-05295-JST-LB, 2015 18 WL 6459689, at *2 (N.D. Cal. Oct. 27, 2015) (“Even where such circumstances exist, 19 however, new evidence is not ‘required.’”) (citing Quesinberry, 987 F.2d at 1027). 20 These restrictions apply to discovery. See, e.g., Nguyen, 2015 WL 6459689, at *2 21 (The limits in Opeta “also constrain discovery.”); Polnicky v. Liberty Life Assurance Co. 22 of Bos., No. 13-cv-1478-SI, 2014 WL 969973, at *2 (N.D. Cal. Mar. 5, 2014) (Although 23 Opeta limits admissibility, “courts in this district have held that ‘in light of Opeta’s limits 24 on admissibility of evidence in de novo cases and the ERISA’s policy of keeping 25 proceedings inexpensive and expeditious, it is appropriate to place similar limits on 26 discovery.’”) (quoting Rowell v. Aviza Tech. Health & Welfare Plan, No. 10-cv-5656-PSG, 27 28 7 21-cv-00004-BEN (DEB) 1 2012 WL 440742, at *3 n.26 (N.D. Cal. Feb. 10, 2012)).3 2 b. Discussion 3 The parties agree a de novo standard of review applies to this case. Dkt. No. 23 at 8, 4 14–17; see also Dkt. No. 12 at 3. The Court, therefore, examines whether “exceptional 5 circumstances” warrant discovery. Polnicky, 2014 WL 969973, at *3 (applying 6 Quesinberry and Opeta’s exceptional circumstances test and declining to allow discovery 7 after the moving party “failed to clearly establish that this additional discovery is necessary 8 for the Court to conduct an adequate de novo review.”). 9 1. Conflict of Interest Discovery 10 Plaintiff’s Interrogatory Nos. 5, 6, 8, 9, and 11 through 18 seek the number of claims 11 referred by Defendant to Drs. Pearce and Merehbian, including the number of reviews 12 resulting in a denial of benefits, the number of reviews resulting in a grant of benefits, and 13 the amount of annual money paid to each physician. Dkt. No. 23 at 22; see also Casino 14 Decl., Ex. 3. Similarly, Plaintiff’s RFP Nos. 9 through 14 seek contracts, financial 15 incentives, and policies and procedures governing individuals who handled, investigated, 16 or oversaw Plaintiff’s claim. Dkt. No. 23 at 30–31. Plaintiff argues this discovery is 17 relevant to determine “whether there is a bias or conflict of interest that would affect the 18 credibility of” Drs. Pearce and Marehbian. Id. at 22. 19 The Court declines to allow this conflict of interest discovery. Plaintiff’s discovery 20 requests are not narrowly tailored and focused. Instead, they are broad and potentially 21 unlimited in scope, spanning, in the first instance, 12 Interrogatories and 6 RFPs. Plaintiff 22 further represents he may propound follow-up discovery upon completion of this round of 23 24 25 26 27 28 3 See also Blaj v. Unum Life Ins. Co. of Am., Case No. 13-cv-04075-MMC-KAW, 2014 WL 2735182, at *2 (N.D. Cal. June 16, 2014) (applying Opeta to discovery); Laird v. United of Omaha Life Ins. Co., Case No. 15-cv-2205-LAB-JMA (S.D. Cal. July 1, 2016) (attached at Dkt. No. 24 at 6) (applying Opeta’s limits on admissibility to the parties’ discovery dispute); John Fritch v. United of Omaha Life Ins. Co., Case No. 16-cv-2448JAH-BGS (S.D. Cal. Mar. 23, 2017) (attached at Dkt. No. 18) (same). 8 21-cv-00004-BEN (DEB) 1 discovery. Id. at 24. This wholesale discovery practice is contrary to and undermines 2 ERISA’s “policy of keeping proceedings inexpensive and expeditious . . . .” Gonda, 300 3 F.R.D. at 613. 4 Even if Plaintiff’s discovery were focused and limited, the Court would still find it 5 unnecessary. Although certain Quesinberry factors could apply here—Plaintiff argues a 6 complex medical condition, Defendant serves as both the administrator and the payor, and 7 Plaintiff disputes the credibility of Defendant’s medical experts—Plaintiff has not 8 adequately established that this discovery is necessary for the Court’s de novo review. 9 Plaintiff’s discovery does not seek to shed light on Plaintiff’s alleged disability. Instead, 10 the discovery is focused on illuminating potential conflicts of interest. 11 The Court agrees with the decisions rejecting conflict of interest discovery in de 12 novo ERISA cases, where the Court affords no deference to the plan administrator’s denial 13 of benefits. Instead, under a de novo standard of review, the Court’s task is to determine 14 “whether the plan administrator correctly or incorrectly denied benefits,” regardless of any 15 conflict. Abatie, 458 F.3d at 962–63; see also Laird, Case No. 15-cv-2205-LAB-JMA 16 (attached at Dkt. No. 24 at 6) (“The de novo standard allows the Court to account for the 17 fact that Defendant’s paid consultants reached decisions that were contrary to those of 18 Plaintiff’s treating doctors, and that Defendant’s consultants apparently reached those 19 decisions without examining Plaintiff.”); Blaj, 2014 WL 2735182, at *8 (denying conflict 20 of interest discovery because “the district court does not require any information regarding 21 performance evaluations, service contracts, or compensation for [] [insurer] employees, 22 because the opinions of those individuals are not afforded any deference in this action.”). 4 23 24 25 26 27 28 4 See also Polnicky, 2014 WL 969973, at *2 (“[S]everal district courts in this circuit have held that the mere fact a physician receives compensation from a plan administrator for performing medical reviews is insufficient by itself to be probative of bias.”); Dilley v. Metro. Life Ins. Co., 256 F.R.D. 643, 645 (N.D. Cal. 2009) (“Details of the number of claims denied based on a medical records review by [MNR] would be meaningless unless a finding could be made that MetLife had wrongly denied those claims. Because none of 9 21-cv-00004-BEN (DEB) 1 Although the Court recognizes that some district courts have allowed conflict of 2 interest discovery, 5 the Court agrees with the rationale articulated in Nguyen that, if 3 discovery were allowed to explore “the existence of a structural conflict of interest, or to 4 observe that consultants were paid, then the situations in which Opeta authorizes such 5 discovery would be routine rather than ‘exceptional[]’ [and] Opeta would erase its own 6 rule.” 2015 WL 6459689, at *10. 7 In sum, the extensive discovery Plaintiff seeks, with the promise of potentially more 8 to come, would frustrate ERISA’s policy facilitating inexpensive and expeditious judicial 9 review and is unnecessary for the Court to perform a de novo review. The Court, therefore, 10 denies Plaintiff’s request to compel responses to its conflict of interest discovery. 11 2. Full and Fair Review Discovery 12 Plaintiff’s RFP No. 5 seeks, among other things, discovery of Defendant’s policies 13 and procedures that discuss “evaluation and use of medical reviewers,” “evaluation of 14 subjective complaints/symptoms,” and “how to evaluate whether occupation is gainful.” 15 Dkt. No. 23 at 27–28. Plaintiff argues RFP No. 5 is relevant, even to a de novo review, 16 because any failure by Defendant to follow its own procedures would inform whether it 17 conducted a full and fair review. Id. at 28. 18 Plaintiff further contends “[t]hese documents are considered ‘relevant’ and must be 19 produced by the Administrator regardless of whether they were relied upon in making the 20 21 22 23 24 25 26 those cases are before the court, the court is not in a position to make such a finding.”); Roberts v. Prudential Ins. Co. of Am., No. 12-cv-1085-L-DHB, 2013 WL 1431725, at *6 (S.D. Cal. Apr. 9, 2013) (finding the number of claims denied by the reviewing physician meaningless without knowing whether those claims had been wrongfully denied); Nguyen, 2015 WL 6459689, at *6 (excluding discovery and holding in part “[t]he plaintiff has not ‘clearly established’ that, because of ‘complex medical questions,’ evidence beyond the administrative record is ‘necessary’ for an adequate de novo review of his claim.”). 27 5 28 See, e.g., Knopp v. Life Ins. Co. of N. Am., No. 09-cv-0452-CRB-EMC, 2009 WL 5215395, at *3 (N.D. Cal. Dec. 28, 2009). 10 21-cv-00004-BEN (DEB) 1 claim decision.” Id. at 28–29. In support of this argument, Plaintiff cites 29 C.F.R. 2 § 2560.503-1(m)(8), which states: 3 4 A document, record, or other information shall be considered ‘relevant’ to a claimant’s claim if such document, record, or other information[:] 5 6 7 (i) Was relied upon in making the benefit determination; (ii) Was submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination; (iii) Demonstrates compliance with the administrative processes and safeguards required pursuant to paragraph (b)(5) of this section in making the benefit determination;[ 6] or (iv) In the case of a group health plan or a plan providing disability benefits, constitutes a statement of policy or guidance with respect to the plan concerning the denied treatment option or benefit for the claimant's diagnosis, without regard to whether such advice or statement was relied upon in making the benefit determination. 8 9 10 11 12 13 14 15 16 17 18 19 6 20 21 22 23 24 25 26 27 28 Pursuant to 29 C.F.R. § 2560.503-1(b)(5), Defendant is: (b) Obligat[ed] to establish and maintain reasonable claims procedures. Every employee benefit plan shall establish and maintain reasonable procedures governing the filing of benefit claims, notification of benefit determinations, and appeal of adverse benefit determinations (hereinafter collectively referred to as claims procedures). The claims procedures for a plan will be deemed to be reasonable only if— .... (5) The claims procedures contain administrative processes and safeguards designed to ensure and to verify that benefit claim determinations are made in accordance with governing plan documents and that, where appropriate, the plan provisions have been applied consistently with respect to similarly situated claimants. 11 21-cv-00004-BEN (DEB) 1 Id. 2 Defendant argues the regulation does not require production of the described 3 documents but only defines them as “relevant.” Defendant also argues it has already 4 produced the documents described in § 2560.503-1(m)(8)(i) and (ii) (i.e. documents “relied 5 upon in making a benefit determination” and documents “submitted, considered, or 6 generated in the course of making the . . . determination”), and it did not create the 7 documents described in § 2560.503-1(m)(8)(iii) (i.e., documents demonstrating 8 “compliance with the [required] administrative processes and safeguards”) because the 9 Department of Labor regulations do not require creation of new documents. Dkt. No. 23 at 10 29. Regarding 29 C.F.R. § 2560.503-1(m)(8)(iv), Defendant claims “there was no ‘denied 11 treatment option’ and . . . that it does not have any ‘statement of policy or guidance with 12 respect to the plan, concerning the . . . benefit for the claimant’s diagnosis.’” Dkt. No. 23 13 at 30. 14 Although Defendant is correct that the cited regulation does not expressly require 15 production of the documents, production is implied. See Nguyen, 2015 WL 6459689, at *4 16 (29 C.F.R. § 2560.503-1(m)(8)(iii) “makes ‘relevant’ (and so mandates the production of) 17 ‘information’ that ‘[d]emonstrates compliance with the administrative processes and 18 safeguards required . . . .’”). 19 Based on Defendant’s representations, the documents falling within § 2560.503- 20 1(m)(8) (i), (ii), and (iv) do not exist or are already in the administrative record. “[A]bsent 21 contrary evidence, ‘the Court presumes the truthfulness of representations made to the 22 Court by attorneys.’” Munoz v. InGenesis STGi Partners, LLC, No. 14-cv-1547-MMA- 23 BLM, 2015 WL 13559890, at *3 (S.D. Cal. 2015) (quoting Laethem Equip. Co. v. Deere 24 & Co., 261 F.R.D. 127, 137 (E.D. Mich. 2009)). Plaintiff’s motion to compel these 25 documents, therefore, is DENIED as moot. 26 Defendant’s representations regarding the documents falling within § 2560.503- 27 1(m)(8)(iii) (i.e., that Defendant “evaluated Plaintiff’s claim on its individual merits based 28 on the facts and circumstances of the claim and terms of the Group Policy at issue,” and 12 21-cv-00004-BEN (DEB) 1 that Defendant “did not create any new documents to comply with the cited regulatory 2 requirement,” however, are unclear. Dkt. No. 23 at 29–30. Defendant’s response leaves 3 open the possibility that it has pre-existing documents responsive to this regulation and 4 Plaintiff’s RFP No. 5. If any such documents exist (regardless of when and why they were 5 created or whether they were specifically relied upon), Defendant must produce them. 6 Accordingly, the Court GRANTS Plaintiff’s request to compel production of the 7 documents described in § 2560.503-1(m)(8)(iii). 8 IV. CONCLUSION 9 For the foregoing reasons, the Court GRANTS in part and DENIES in part Plaintiff’s 10 requests to propound additional discovery outside the administrative record. If any 11 documents pertaining to 29 C.F.R. § 2560.503-1(m)(8)(iii) exist, Defendant must produce 12 them by October 7, 2021. Alternatively, if there are no documents pertaining to 29 C.F.R. 13 § 2560.503-1(m)(8)(iii), by October 7, 2021, Defendant must serve Plaintiff with a 14 declaration clearly stating that no such documents exist. 15 IT IS SO ORDERED. 16 17 Dated: September 23, 2021 18 19 20 21 22 23 24 25 26 27 28 13 21-cv-00004-BEN (DEB)
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