Presenting a live 90-minute webinar with interactive Q&A Defending ERISA Conflict of Interest Discovery Requests Limiting the Scope of Discovery, Preparing and Defending 30(b)(6) Depositions, and More THURSDAY, MARCH 27, 2014 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Jack F . Fuchs, Partner, Thompson Hine , Cincinnati Cassie M. Springer, Partner, Springer & Roberts , Oakland, Calif. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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S TRAFFORD P RESENTS : ERISA C ONFLICT OF I NTEREST D ISCOVERY R EQUESTS M ARCH 27, 2014 Faculty: Cassie Springer, Partner Jack F. Fuchs, Esq. Springer & Roberts LLP Thompson Hine LLP 410 – 12 th Street, Suite 325 Suite 1400, 312 Walnut St. Cincinnati, OH 45202 Oakland, CA 94607 510.992.6130 513.352.6741 cassie@ssrlawgroup.com Jack.Fuchs@ThompsonHine.com www.ssrlawgroup.com www.thompsonhine.com 5
D EPOSITIONS G OING TO C ONFLICT OF I NTEREST A LLOWED Sizemore v. Pac. Gas & Elec. Ret. Plan , 952 F. Supp. 2d 894, 900 (N.D. Cal. 2013). The Court allowed two 1-day 30(b)(6) depositions and held that “Defendants' arguments against discovery are unavailing. The fact that the EBC handled the claim denial and the Appeals Committee handled the appeals is not dispositive because the membership of the two committees overlaps, and because the members of both committees are all high-level officers at PG & E. Defendants' objections that the discovery will have no probative value and would be prejudicial to PG & E are unsubstantiated.” Joyner v. Cont'l Cas. Co. , 2011 WL 6382567 (S.D.N.Y. Dec. 19, 2011). Plaintiff is entitled to a 30(b)(6) of Hartford on conflict issues, specifically on 1) the presence and “quality” of Defendants’ firewalls; 2) reliance on medical and vocational evidence favorable to it to the exclusion of evidence favorable to Plaintiff; 3) Defendant's insistence on an SSDI application while, in the same breath, denying the claimant is disabled; 4) selection and provision of records to the of the medical records reviewer and whether; and 6) Defendant's history of biased claims administration. 6
D EPOSITIONS G OING TO C ONFLICT OF I NTEREST A LLOWED ( CON ’ T ) Durham v. Prudential Ins. Co. of Am. , 890 F. Supp. 2d 390, 397 (S.D.N.Y. 2012). Relying in part on Joyner, the Court determined that a 30(b)(6) of Prudential was permissible, as “courts in this district generally require an ERISA plaintiff seeking additional discovery to show only a “reasonable chance that the requested discovery will satisfy the good cause requirement.” Lucas v. Liberty Life Assur. Co. of Boston , 2011 WL 6196720 (E.D. Pa. Dec. 12, 2011). Plaintiff is entitled to claims handler’s deposition on the questions of 1) why she relied on a medical opinion to the exclusion of Plaintiff’s physicians’ opinions; 2) why she did not acknowledge that the medical condition was unchanged; 3) why she failed to follow ERISA regulations. 7
D EPOSITIONS G OING TO C ONFLICT OF I NTEREST A LLOWED ( CON ’ T ) Tretola v. First Unum Line Ins. Co., 13 CIV. 231 PAE, 2013 WL 2896804 (S.D.N.Y. June 13, 2013). In light of the Supreme Court’s commentary on Unum’s conflict of interest in MetLife v. Glenn, the court permitted “limited discovery” on Unum’s conflict of interest, including a 30(b)(6) deposition of a Unum representative. Benson v. Hartford Life & Acc. Ins. Co., 2011 WL 285831 (D. Utah Jan. 28, 2011). In this life insurance benefit case, the court applied Murphy v. Deloitte & Touche Group Ins. Plan, 619 F.3d 1151 (10 th Cir. 2010), to determine the propriety of discovery. Decedent passed away just two months after her policy was cancelled due to Hartford’s determination that she could return to work. The court noted that “[ i]t is challenging for an ERISA plaintiff to explain the precise need for interrogatories and requests for production when the plaintiff is in possession of far less information than the defendant.” The court granted numerous discovery requests, including inquiries into the financial and statistical relationship between UDC and Hartford and a 30(b)(6) deposition for each company. 8
D EPOSITIONS G OING TO C ONFLICT OF I NTEREST A LLOWED ( CON ’ T ) Jennifer A. v. United Healthcare Ins. Co., CV 11-1813 DSF PLAX, 2012 WL 762071 (C.D. Cal. Mar. 5, 2012). Noting that it is defendant’s burden to show why the discovery should not go forward. “From the Court’s examination of the record, Defendant's only apparent reason for seeking to quash the deposition is that it would rather not respond to conflict of interest-related questions in a deposition.” Allowing a 30(b)(6) on the relationship between the decision-maker and payor of claims. 9
D EPOSITIONS G OING TO C ONFLICT OF I NTEREST NOT A LLOWED Verme-Gibboney v. Hartford Ins. Co ., 2013 U.S. Dist. LEXIS 177553 (D.N.J. Dec. 16, 2013). Noting that “[d]iscovery outside the administrative record may be permitted if it is directed to an administrator's structural conflict of interest or procedural irregularities that occurred during the reviewing process.” Denying Rule 30(b)(6) deposition where arbitrary and capricious standard applies because “plaintiff ‘must allege a good faith basis of conflict of interest to warrant discovery.’” ( Quoting Irgon v. Lincoln Nat. Life Ins. Co ., C.A. No. 13-4731 (FLW), 2013 U.S. Dist. LEXIS 162703, 2013 WL 6054809, at *3 (D.N.J. Nov. 15, 2013). Motion denied where “Plaintiff did not cite to any portion of the administrative record to support her request for discovery. She also did not cite to any evidence of an ‘irregularity’ to show there is a good faith belief that misconduct occurred.” 10
D EPOSITIONS G OING TO C ONFLICT OF I NTEREST NOT A LLOWED ( CON ’ T ) Boxell v. Plan for Group Ins. of Verizon Communications, Inc. , 2013 U.S. Dist. LEXIS 131621 (N.D. Ind. Sept. 16, 2013). Denying request for Rule 30(b)(6) deposition where claimant “ Boxell had not identified a specific conflict or instance of misconduct or made a prima facie showing that there is good cause to believe that limited discovery will reveal a procedural defect.” Citing Nunnery v. Sun Life Fin. Distribs., 526 F. Supp. 2d 862, 869 (N. D. Ill. 2007). Disagreeing with outcome “does not equate to even a preliminary showing of misconduct, bias, or conflict of interest that might warrant discovery beyond the record on which the administrator relied." Id . Court held that “request to perform discovery outside of the administrative record will be denied.” 11
D EPOSITIONS G OING TO C ONFLICT OF I NTEREST NOT A LLOWED ( CON ’ T ) Warner v. UNUM Life Ins. Co. of America , 2013 U.S. Dist. LEXIS 105067 (N.D. Ill. July 26, 2013). Holding that while Dennison v. MONY Life Retirement Income Sec. Plan for Employees , 710 F.3d 741, 747 (7th Cir. 2013), “softened” standard for discovery in benefits cases, discovery still not permitted in the run-of-the-mill case in the Seventh Circuit, and the two-part test established in Semien remains instructive. Under Semien , to obtain discovery beyond the claims file in an ERISA benefits case governed by the arbitrary and capricious standard, a plaintiff still must identify a specific conflict or instance of misconduct and make a prima facie showing that there is good cause to believe that limited discovery will reveal a procedural defect. 12
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