Clark v. Unum Group et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
EDWARD CLARK,
Plaintiff,
vs.
UNUM GROUP, THE PAUL REVERE
LIFE INSURANCE COMPANY,
Defendants.
4:20-CV-04013-KES
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
SECOND MOTION TO COMPEL
[Docket No. 101]
INTRODUCTION
This matter is pending before the court on plaintiff’s second motion to
compel the production of documents. 	Docket No. 101. 	Defendants resist the
motion, and plaintiff has filed a reply. 	Docket Nos. 114 & 118. 	This matter
has been referred to this magistrate judge for determination pursuant to 28
U.S.C. § 636(b)(1)(A) and Local Rule 57.11B.
FACTS
The parties’ dispute concerns a long-term disability policy issued by the
Paul Revere Life Insurance Company to Dr. Edward Clark in 2001 while he was
employed as an acute care physician by Sioux Valley Health Systems, now
Sanford Health Systems. 	In October 2015, Dr. Clark suffered a bilateral
pulmonary embolism and began regularly experiencing fatigue and shortness
of breath. 	See Docket No. 1 at ¶¶ 29-31, 39. 	While receiving treatment for his
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pulmonary blood clots, he learned he has an autoimmune disorder that
predisposes him to blood clotting. 	Docket No. 105 at p. 15 (plaintiff’s brief at
page 3). 	His conditions caused difficulty performing his job duties, and he
submitted a claim for benefits under the long-term disability policy on
November 29, 2016. 	See Docket No. 1 at ¶¶ 43-44, 46; Docket No. 114 at p. 12
(defendant’s brief at p. 7). 	Defendants denied Dr. Clark’s claim and he
appealed; defendants denied his appeal on May 10, 2017. 	Docket No. 114 at p.
13 (defendant’s brief at p. 8). 	Dr. Clark filed this lawsuit against Paul Revere
and Unum alleging state-law bad faith and breach of contract claims and
alternative claims under ERISA. 	Id. at ¶¶ 83-113.
Dr. Clark served defendants with 47 document requests on July 11,
2022. 	Docket No. 105-1. 	Disagreements ensued over defendants’ responses to
those requests. 	After the parties met and conferred, Dr. Clark agreed to certain
concessions and defendants disclosed certain documents. 	Docket No. 104.
Twenty-nine document requests remain over which the parties could not reach
agreement and it is these requests that are the subject of Dr. Clark’s second
motion to compel. 	Docket No. 105 at p. 13 (plaintiff’s brief at p. 1).
DISCUSSION
A. 	Standards Governing Discovery
Federal Rule of Civil Procedure 26(b)(1) sets forth the scope of discovery
in civil cases pending in federal court:
Scope in General. 	Unless otherwise limited by court order, the scope of
discovery is as follows: 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
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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.
Information within the scope of discovery need not be admissible in
evidence to be discoverable.
See Fed. R. Civ. P. 26(b)(1).
If a party fails to respond to a proper request for discovery, or if an
evasive or incomplete response is made, the party requesting the discovery is
entitled to move for a motion compelling disclosure after having made a good-
faith effort to resolve the dispute by conferring first with the other party. 	See
Fed. R. Civ. P. 37(a).
The scope of discovery under Rule 26(b) is extremely broad. 	See 8
Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. ' 2007 (3d ed.
Oct. 2020 update). 	The reason for the broad scope of discovery is that
“[m]utual knowledge of all the relevant facts gathered by both parties is
essential to proper litigation. 	To that end, either party may compel the other to
disgorge whatever facts he has in his possession.” 	Id. (quoting Hickman v.
Taylor, 329 U.S. 495, 507-08 (1947)). 	The Federal Rules distinguish between
discoverability and admissibility of evidence. 	F ED . R. CIV . P. 26(b)(1), 32, and
33(a)(2) & (c). 	Therefore, the rules of evidence assume the task of keeping out
incompetent, unreliable, or prejudicial evidence at trial. 	But these
considerations are not inherent barriers to discovery.
Discoverable information itself need not be admissible at trial; rather, the
defining question is whether it is within the scope of discovery. 	See FED. R. CIV .
P. 26(b)(1). 	Additionally, the court may limit the frequency and extent of
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discovery. 	See Fed. R. Civ. P. 26(b)(2); see also Roberts v. Shawnee Mission
Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003) (“The rule vests the district court
with discretion to limit discovery if it determines, inter alia, the burden or
expense of the proposed discovery outweighs its likely benefit.”); Cont’l Ill. Nat’l
Bank & Trust Co. of Chi. v. Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991) (“All
discovery requests are a burden on the party who must respond thereto.
Unless the task of producing or answering is unusual, undue or extraordinary,
the general rule requires the entity answering or producing the documents to
bear that burden.”).
The advisory committee’s note to the 2000 amendments to Rule 26(b)(1)
provide guidance on how courts should define the scope of discovery in a
particular case:
Under the amended provisions, if there is an objection that
discovery goes beyond material relevant to the parties’ claims or
defenses, the court would become involved to determine whether
the discovery is relevant to the claims or defenses and, if not,
whether good cause exists for authorizing it so long as it is relevant
to the subject matter of the action. 	The good-cause standard
warranting broader discovery is meant to be flexible.
The Committee intends that the parties and the court focus on the
actual claims and defenses involved in the action. 	The dividing
line between information relevant to the claims and defenses and
that relevant only to the subject matter of the action cannot be
defined with precision. 	A variety of types of information not
directly pertinent to the incident in suit could be relevant to the
claims or defenses raised in a given action. 	For example, other
incidents of the same type, or involving the same product, could be
properly discoverable under the revised standard. ... In each case,
the determination whether such information is discoverable
because it is relevant to the claims or defenses depends on the
circumstances of the pending action.
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The rule change signals to the court that it has the authority to
confine discovery to the claims and defenses asserted in the
pleadings, and signals to the parties that they have no entitlement
to discovery to develop new claims or defenses that are not already
identified in the pleadings. ... When judicial intervention is
invoked, the actual scope of discovery should be determined
according to the reasonable needs of the action. 	The court may
permit broader discovery in a particular case depending on the
circumstances of the case, the nature of the claims and defenses,
and the scope of the discovery requested.
See F ED. R. CIV . P. 26(b)(1) advisory committee’s note.
The same advisory committee’s note further clarifies that information is
discoverable only if it is relevant to the claims or defenses of the case or, upon
a showing of good cause, to the subject matter of the case. 	See Fed. R. Civ. P.
26(b)(1) advisory committee’s note. 	“Relevancy is to be broadly construed for
discovery issues and is not limited to the precise issues set out in the
pleadings. 	Relevancy ... encompass[es] ‘any matter that could bear on, or that
reasonably could lead to other matter that could bear on, any issue that is or
may be in the case.’ ” 	E.E.O.C. v. Woodmen of the World Life Ins. Society,
2007 WL 1217919 at *1 (D. Neb. Mar. 15, 2007) (quoting Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340, 351 (1978)). 	The party seeking discovery must
make a “threshold showing of relevance before production of information,
which does not reasonably bear on the issues in the case, is required.” 	Id.
(citing Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1993)). 	“Mere
speculation that information might be useful will not suffice; litigants seeking
to compel discovery must describe with a reasonable degree of specificity, the
information they hope to obtain and its importance to their case.” 	Id. (citing
Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir. 1972)).
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Dr. Clark was under a duty to meet and confer with defendants before
filing this motion to attempt to resolve the parties’ discovery disputes. 	Fed. R.
Civ. P. 37(a). 	Dr. Clark asserts he satisfied that duty. 	See Docket No. 104.
Defendants do not dispute that Dr. Clark has satisfied this duty. 	Accordingly,
the motion is ripe for decision.
B. 	Specific Discovery Requests
1. 	Request for Production No. 1 & 2
Dr. Clark requested all documents showing loss reserves for his claim.
See Docket No. 105-2 at pp. 2 & 3. 	Defendants initially responded with a
battery of boilerplate objections including “vague and ambiguous,” “unduly
burdensome,” “confidential and proprietary,” privilege, and irrelevancy, all of
which objections lacked sufficient specificity to sustain them. 	Id. at pp. 2-4.
In a supplemental response, defendants stated that “subject to and without
waiving [its prior] objections, after the entry of a Protective Order,”1 defendants
would produce “the Statutory and GAAP2 reserve histories for Plaintiff’s claim.”
Id. at pp. 3-5. 	In discussing relevancy, defendants only argued that “courts
have held that information concerning reserves is not discoverable because it is
not relevant. 	Id. at p. 2.
Dr. Clark moves to compel a response from defendants because
defendants’ present responses violate Fed. R. Civ. P. 34(b)(1)(C) in that they fail
1 The court entered a protective order on October 14, 2022, pursuant to
stipulation by the parties. 	Docket No. 109.
2 GAAP stands for “generally accepted accounting principles.”
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to indicate whether any documents are being withheld on the basis of the
objections. 	Docket No. 105 at p. 19 (plaintiff’s brief at p. 7).3
Rule 34(b)(1)(C) provides: 	“An objection must state whether any
responsive materials are being withheld on the basis of that objection. 	An
objection to part of a request must specify the part and permit inspection of the
rest.”
Defendants respond in their brief that requests number one and two
have no time frame stated. 	Docket No. 114 at p. 7. 	The court agrees, but the
time frame is implicit in the request. 	The request is for reserves set on
Dr. Clark’s claim. 	Dr. Clark experienced his pulmonary embolism in October
2015 and submitted a claim for benefits on November 29, 2016. 	Docket No. 1
at p. 7, ¶ 46; Docket No. 114 at p. 12. 	No reserve could have been set by
defendants prior to November 29, 2016, because no claim had been received by
them prior to that date. 	The time frame for the request, then, is clearly from
the date of Dr. Clark’s submission of his claim to defendants (November 29,
2016) until the date defendants paid the claim. 	If the claim has still not been
paid, then the request is ongoing up to the present. 	The court rejects
defendants’ assertion that request number one is not bounded by any time
limits.
Defendants then assert that they have produced the documents
requested, have conducted a reasonable search and not found other responsive
3 Both parties’ briefs contain introductory pages before the actual ordinal
numbering of pages of their briefs begins. 	The court’s electronic docketing
system, by contrast, assigns a page number to each page of a document.
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documents, so Dr. Clark’s request has been satisfied. 	Docket No. 114 at pp.
20-23. 	True, but defendants’ formal response to Dr. Clark’s requests number
one and two leaves doubt because the documents are produced “subject to and
without waiving” defendants’ earlier objections. 	Docket No. 105-2 at pp. 3 & 5.
The court will order defendants to produce new responses to plaintiff’s
document requests number one and two, signed by its counsel of record,
indicating what was indicated in defendants’ brief in opposition: 	that
defendants have conducted a reasonable search for documents in response to
requests number one and two and have produced all responsive documents to
Dr. Clark, withholding none pursuant to any objection.
2. 	Request for Production No. 3
Dr. Clark’s third request for the production of documents seeks any
document in which his name, his claim, or his claim number is listed or
referred to. 	Docket No. 105-2 at p. 5. 	In the meet and confer session,
Dr. Clark agreed to limit this request to individual disability insurance (IDI)
claims as opposed to both IDI and group disability claims. 	Docket No. 105 at
p. 25.
Defendants again asserted the boilerplate objections noted above with
regard to requests one and two. 	Importantly, defendants notes that they
asserted the attorney-client privilege in the case of request number three
because there was no date limitation in the request. 	Thus, potentially, post-
suit communications between defendants and their lawyers could be
considered responsive to the request. 	Those communications would clearly fall
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within the protection of the attorney-client privilege. 	Docket No. 114 at
pp. 24-25.
With the exception of post-litigation documents exchanged between
defendants and their lawyers, defendants state that there are no responsive
documents regarding request number three that are currently being withheld
on the basis of privilege. 	Id. at p. 25.
Defendants’ supplemental response to request number three again
states, “subject to and without waiving Defendants’ objections,” defendants
agreed to produce responsive documents. 	Docket No. 105-2 at p. 6. 	Dr. Clark
moves to compel a response from defendants because defendants’ present
response violates Fed. R. Civ. P. 34(b)(1)(C) in that they fail to indicate whether
any documents are being withheld on the basis of the objections. 	Docket No.
105 at p. 26 (plaintiff’s brief at p. 14).
Defendants’ formal response to Dr. Clark’s request number three leaves
doubt because the documents are produced “subject to and without waiving”
defendants’ earlier objections. 	Docket No. 105-2 at p. 6. 	The court will order
defendnats to produce new responses to plaintiff’s document request number
three, signed by its counsel of record, indicating what was indicated in
defendants’ brief in opposition: 	that defendants have conducted a reasonable
search for documents in response to request number three and have produced
all responsive documents to Dr. Clark, withholding none pursuant to any
objection. 	The court accepts, without more, the assertion of privilege for
documents exchanged post-suit between defendants and thier lawyers that
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contain a reference to Dr. Clark, Dr. Clark’s claim, or Dr. Clark’s
claim number.
3. 	Request for Documents No. 4
Dr. Clark’s request for documents number four seeks “documents
sufficient to show the methods and criteria used for setting loss reserves on
disability claims from January 1, 2012 to present.” 	Docket No. 105-2 at p. 7.
In his brief in support of his motion to compel, Dr. Clark limits his request
number four to documents showing how claim reserves are set for individual
claims under IDI policies. 	Docket No. 105 at p. 31 (plaintiff’s brief at p. 19).
Dr. Clark also agreed to limit the duration of the request to January 1, 2015, to
January 1, 2018. 	Id. 	Finally, Dr. Clark agreed to limit his request to exclude
actuarial processes for determining aggregate loss or aggregate claim reserves.
Docket No. 105 at p. 30 (plaintiff’s brief at p. 18).
Defendants assert they has already produced a document explaining
what they consider a reserve to be—Unum’s 2021 Annual Report. 	Docket No.
114 at p. 27 (defendants’ brief at p. 22); Docket No. 114-13.
In his reply brief, Dr. Clark does not clearly address whether the
document at the court’s Docket No. 114-13 is a satisfactory response to
request for production number four. 	Docket No. 118 at p. 26 (plaintiff’s brief at
p. 17). 	Instead, Dr. Clark said he “doesn’t want a contrived answer[] from
UNUM’s lawyers, he wants the actual documents showing how UMUM applies
the word ‘reserves.’ ” 	The page from Unum’s 2021 report states in pertinent
part as follows:
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Reserves for Policy and Contract Benefits
The applicable insurance laws under which insurance companies
operate require that they report, as liabilities, policy reserves to
meet future obligations on their outstanding policies. 	These
reserves are the amounts which, with the additional premiums to
be received and interest thereon compounded annually at certain
assumed rates, are calculated to be sufficient to meet the various
policy and contract obligations as they mature. 	These laws specify
that the reserves shall not be less than reserves calculated using
certain specified mortality and morbidity tables, interest rates, and
methods of valuation required for statutory accounting.
The reserves reported in our financial statements contained herein
are calculated in conformity with [Generally Accepted Accounting
Procedures] and differ from those specified by the laws of the
various states and reported in the statutory financial statements of
our insurance subsidiaries. 	These differences result from the use
of mortality and morbidity tables and interest assumptions which
we believe are more representative of the expected experience for
these policies than those required for statutory accounting
purposes and also result from differences in actuarial reserving
methods.
The assumptions we use to calculate our reserves are intended to
represent an estimate of experience for the period that policy
benefits are payable. 	If actual experience is equal, or favorable, to
our reserve assumptions, then reserves should be adequate to
provide for future benefits and expenses. 	If experience is less
favorable than the reserve assumptions, additional reserves may
be required. 	The key experience assumptions include claim
incidence rates, claim resolution rates, mortality and morbidity
rates, policy persistency, interest rates, premium rate increases,
and any applicable policy benefit offsets, including those for social
security and other government-based welfare benefits. 	We
periodically review our experience and update our policy reserves
for new issues and reserves for all claims incurred, as we believe
appropriate.
Docket No. 114-13.
The court notes that the above is certainly a document “sufficient to
show the methods and criteria used for setting loss reserves on disability
claims.” 	Furthermore, since Dr. Clark has limited his request so as to exclude
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[proprietary] actuarial processes used by defendants to set reserves, the court
is hard-pressed to see how any further description could be added by
defendants to the above as to the methods and criteria it uses to set reserves.
The court notes that Dr. Clark’s request, as modified, is for the years
2015 to 2018 and the above statement comes from Unum’s annual report for
the year 2021. 	Accordingly, the court will grant Dr. Clark’s motion to compel
to this extent: 	if defendants have not already provided Dr. Clark Unum’s
annual reports for the years 2015 through 2018, and if those reports contain a
similar description of how Unum set is reserves in those years similar to
Docket No. 114-13, then defendants shall promptly provide to plaintiff the
page(s) of Unum’s annual reports containing the description of reserve-setting
for the years 2015 through 2018.
4. 	Request for Documents No. 5
Dr. Clark’s request for production of documents number five seeks “[t]he
entire personnel files and human resources files for each person that handled
or participated in handling or making decisions regarding any aspect of Ed
Clark’s claim, as well as those persons who supervise those individuals or are
in the direct chain of command above them, up to the senior-most person in
the chain of command with authority over the claims.” 	Docket No. 105-2 at
p. 8. 	The request included, but was not limited to, specific named individuals:
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Sean Tangney, Lynn McGuiness, Maureen Turner, Paul Peter, Denise Hauser,
Judith L. Cohen, James H. Bress, Beth Schnars, and Maureen Griffin.4 Id.
The request excluded social security numbers, home street addresses,
bank account numbers, or personal health information. 	Id. 	If defendants
wanted to exclude additional information, Dr. Clark invited a discussion and
stated his agreement would not be unreasonably withheld. 	Id.
Defendants asserted many of the same boilerplate objections detailed
above. 	Docket No. 105-2 at pp. 9-10. 	It also asserted that the request violated
the privacy of employees who were not parties to the lawsuit, violated
Massachusetts Privacy Statute, and violated an unspecified Tennessee law. 	Id.
In its response in opposition to Dr. Clark’s motion to compel, defendants
assert that Paul Peter and Maureen Griffin were not employed by either
defendant at the time of Dr. Clark’s claim. 	Docket No. 114 at p. 28
(defendant’s brief at p. 23). 	Defendants emphasize the fact that plaintiff did
not list Peter and Griffin as persons with knowledge of Dr. Clark’s claims in
either plaintiff’s initial disclosures or in interrogatory answers asking for names
of witnesses. 	Id. (citing Docket Nos. 114-2 and 114-3). 	Defendants state that
the only defendant employees listed by Dr. Clark as persons having relevant
knowledge are Tangney, Turner, Cohen, Bress and Schnars. 	Id. at p. 29
(defendant’s brief at p. 24). 	Furthermore, defendants note that the request is
4 Dr. Clark’s original request included Janice Kempeskie, Jo A. Allard, and Lee
Ann Morin. 	Docket No. 105-02 at p. 8. 	Dr. Clark dropped the request for the
personnel files of these three after learning from Unum that they merely
performed clerical tasks. 	Docket No. 105 at pp. 31-32 (plaintiff’s brief at
pp. 19-20).
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not limited in duration. 	It could require production of personnel file materials
going back 20 years and continuing long after Dr. Clark’s claim was
finalized. 	Id.
Defendants also suggest that documents relating to life insurance,
benefit elections, wages or salary, retirement account, bank accounts,
employee assistance programs, and more are irrelevant. 	Id. 	As to this last
objection, the court notes Dr. Clark invited a further conversation about
additional items defendant felt should not be produced. 	The ball was in
Unum’s court to bring these matters up to plaintiff’s counsel and discuss them
in the meet and confer session. 	Docket No. 105-2 at p. 9.
Defendants close by asking the court to limit the production in response
to request number five in three ways: 	(1) limit production to only the personnel
files of employees directly involved in handling Dr. Clark’s claim, (2) limit the
request in time, and (3) eliminate categories of irrelevant and highly private
documents. 	Docket No. 114 at p. 30 (defendants’ brief at p. 25).
Courts in this district have routinely found personnel files in insurance
bad faith cases to be relevant and discoverable. 	Schultz v. Sentinel Ins. Co.,
Ltd., 4:15-CV-04160-LLP, 2016 WL 3149686 at *10 (D.S.D. June 3, 2016);
Gowan v. Mid Century Ins. Co., 309 F.R.D. 503, 512 (D.S.D. 2015); Hill v. Auto
Owners Ins. Co., 5:14-CV-5037-KES, 2015 WL 2092680 at *13 (D.S.D. May 5,
2015); Burke v. Ability Ins. Co., 291 F.R.D. 343, 352 (D.S.D. 2013); Nye v.
Hartford Acc. & Indem. Co., 5:12-CV-5028-JLV, 2013 WL 3107492 at *11
(D.S.D. June 18, 2013); Lillibridge v. Nautilus Ins. Co., 4:10-CV-04105-KES,
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2013 WL 1896825 at *9 D.S.D. May 3, 2013); Anspach v. United of Omaha Life
Ins. Co., 5:10-CV-05080-JLV, 2011 WL 3862267 at *9-10 (D.S.D. Aug. 31,
2011).
“Personnel files may reveal an inappropriate reason or reasons for
defendant’s action with respect to plaintiff’s claim or an ‘improper corporate
culture.’ ” 	Nye, 2013 WL 3107492 at *11 (quoting Signature Development, LLC
v. Mid-Continent Cas. Co., 5:11-CV-5019, 2011 WL 4321322 at *13 (D.S.D.
Sept. 18, 2012)). 	They may also “reveal whether a particular employee was
rewarded financially for denying a certain number or percentage of claims or
achieving a particular outcome with regard to claims handling.” 	Anspach,
2011 WL 3862267 at *9.
With regard to the assertion of Massachusetts and Tennessee law as a
barrier to discovery, defendants never identifie which individuals who fall
within Dr. Clark’s request number five might be able to claim the protections of
those laws—defendants never identifie specific individuals as being employees
within one of those states. 	As the party resisting the discovery, defendants
bear the burden of demonstrating that a reason or a privilege exists which
would prevent the requested discovery. 	See Fed. R. Civ. P. 26(b)(5) & (c).
The Massachusetts law cited by defendants is not absolute. 	Rather, even
materials which may fall within the purview of the privacy statute may be
lawfully disclosed if it is reasonable under the circumstances. 	Skelley v.
Trustees of Fessenden School, No. CIV.A. 94-2512, 1994 WL 928172 at *8
(Sup. Ct. Mass. May 2, 1994). 	Defendants do not acknowledge the balancing
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test applicable under Massachusetts law, but blindly assert the absolute
privacy of personnel files. 	The court finds that, as limited below, the disclosure
of the personnel files requested by Dr. Clark in request number five is
reasonable under the circumstances.
As to Tennessee law, although defendants asserted this as a basis for
resisting discovery in its response to request number five (Docket No. 105-2 at
p. 10), there is no argument discussing Tennessee law in defendants’ brief in
opposition to Dr. Clark’s motion to compel. 	Docket No. 114 at pp. 27-30
(defendant’s brief at pp. 22-25). 	The court rejects Tennessee law as a basis for
refusing the discovery of personnel files for the same reasons Massachusetts
law was rejected: 	defendants never identify any employee who is a resident of
Tennessee and may take shelter under Tennessee law and they never
demonstrate that Tennessee law prevents the requested discovery in this case.
Even though the court will allow the discovery, in part, personnel files
contain matters that are highly personal to the employee and not relevant to
the bad faith litigation. 	Furthermore, the court is not convinced that personnel
files of employees who were not employed by the defendant at the time the
plaintiff’s claim was received (Griffin and Peter) are likely to have relevant
knowledge.
Accordingly, the court will order defendants to produce the personnel
files of the following persons (1) the names listed in request number five except
that defendants need not produce personnel files of Paul Peter or Maureen
Griffin—in addition defendants shall produce personnel files of persons who
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supervise those individuals or are in the direct chain of command above them,
up to the senior-most person in the chain of command with authority over the
claims; (2) the personnel files shall be produced from the time of the employee’s
first employment with defendants up to the end of 2017—documents added to
personnel files after the handling of Dr. Clark’s claim need not be produced;
and (3) defendants must redact sensitive information such as social security
numbers, phone numbers, and home addresses.
Defendants need not produce any documents relative to employees’ bank
accounts, retirement accounts, health insurance of any kind, life insurance,
benefit elections, employee assistance counseling, or other similar documents.
Information as to employees’ salary or bonuses are included in the court’s
order to compel and must be produced. 	Should defendants be uncertain about
production of a particular document, they is urged to confer with plaintiff’s
counsel regarding the relevance of such document. 	All documents produced by
defendants pursuant to request number five shall be protected under the
auspices of the court’s protective order that was previously entered.
5. 	Request for Documents No. 7
Dr. Clark’s request for the production of documents number seven seeks
documentation of all compensation paid to all individuals for whom personnel
files were provided in request number five from January 1, 2012, to the
present. 	Docket No. 105-2 at p. 11.
Defendants argue that the ten-year time span covered by request
number seven is overbroad inasmuch as Dr. Clark’s claim was only open or
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pending for approximately six months. 	Docket No. 114 at p. 32 (defendant’s
brief at p. 27). 	Defendants again objects to the inclusion of Peter and Griffin in
the request for the reasons discussed above. 	Defendants assert the same
objections to the supervisors up the chain of command as well as the privacy
objections noted above. 	Id.
The court agrees a ten-year time span is overbroad given the
circumstances of this case. 	The court will allow a two-year time span before
the filing of Dr. Clark’s claim and a two-year window after the denial of
Dr. Clark’s claim. 	Therefore, the court will order production of documents that
show compensation (as defined by Dr. Clark in his discovery requests) for the
employees whose personnel files were ordered to be produced in request
number five for the period from January 1, 2015, through December 31, 2019.
This order does not include compensation documents for Peter or Griffin.
6. 	Request for Documents No. 8
Request for production of documents number eight seeks documents
made available to any employee for whom production of a personnel file was
requested explaining how that employee can expect to earn increases in
compensation or explaining how employees are evaluated for compensation.
Docket No. 105-2 at pp. 12-13. 	The duration of the request is from January 1,
2012, to the present. 	Id. at p. 13.
Defendants asserted a number of objections to this request. 	Id. at p. 13.
In response to this request and “subject to and without waiving said
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objections,” defendants produced documents for the approximately six-month
period Dr. Clark’s claim was pending. 	Id. at pp. 13-14.
The court will grant plaintiff’s motion to compel in part. 	As with requests
number five and seven, the request is limited to employees whose personnel
files are ordered to be produced herein (excluding Peter and Griffin). 	Similarly,
the court limits the time frame in accord with request number seven.
Defendants are ordered to produce responsive documents for the period from
January 1, 2015, to December 31, 2019. 	Furthermore, because defendants’
response is ambiguous as to whether any documents have been withheld
(“subject to and without waiving said objections”), the court orders defendants
to provide a new written response to request number eight, signed by
defendants’ lawyer(s), clearly indicating whether any responsive documents
have been withheld.
7. 	Request for Documents No. 9
This discovery request seeks any documents which reflect defendants’
taking into consideration the amount paid in claims in setting any employee’s
compensation for whom personnel files were requested in request number five.
Docket No. 105-2 at p. 14. 	The scope is again from January 1, 2012, to the
present. 	Id.
Defendants again asserted a barrage of objections. 	Id. at pp. 14-15.
They then stated “subject to and without waiving said objections,” there were
no documents responsive to this request because defendants “do not
compensate individuals who handle disability claims . . . based on the amount
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paid on claims, the number of claims denied, or the amount of any reserves
that may be released upon the closure of a claim.” 	Id. at p. 16.
Dr. Clark claims defendants’ assertion that there are no documents is
“demonstrably false,” and points to deposition testimony of Paul Peter. 	Docket
No. 105-16. 	Peter testified that his performance and the performance of the
claims team he supervised was evaluated, in part, by their performance on a
“recovery plan.” 	Id. 	The recovery plan was a count of recoveries and a dollar
figure. 	Id. 	However, Peter testified these numbers were relayed to him by his
superior orally and that he communicated the numbers to his subordinates
orally. 	Id. 	Thus, even crediting Peter’s testimony wholly, there would be no
documents showing this practice.
The court denies Dr. Clark’s motion to compel documents from
defendants in response to request number nine. 	The court reminds defendants
that they are under a continuing duty to supplement their response to this
request should responsive documents come to light at a later time. 	See Fed. R.
Civ. P. 26(e)(1). 	Because defendants’ request is ambiguous as to whether any
documents have been withheld (“subject to and without waiving said
objections”), the court orders defendants to provide a new written response to
request number nine, signed by defendants’ lawyer(s), clearly indicating
whether any responsive documents have been withheld.
8. 	Request for Documents No. 10
Request for the production of documents number ten seeks “[a]ll
documents relating to goals, targets, or objectives set for any of the individuals
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described in Request 5, or for the team they are a part of, or for the benefits
department, or appeal department, or for disability claims in general.” 	Docket
No. 105-2 at p. 16. 	The scope of the request is, again, January 1, 2012, to the
present. 	Id.
Defendants asserted a barrage of objections and then stated, “subject to
and without waiving said objections,” the performance plan templates for the
year 2017 were produced. 	Id. at p. 18. 	The documents provided relate only to
employees Tangney, McGuiness, Turner, and O’Neal. 	Id. 	In addition,
defendants referred Dr. Clark to the Benefits Center Claims Manuals which
defendants produced in response to request for documents number twelve. 	Id.
The court grants plaintiff’s request in part. 	Defendants are ordered to
provide responsive documents for each employee whose personnel file was
ordered to be produced in response to request number five. 	The court excludes
Peter and McGinnis from this order. 	The order is also limited to the time frame
from January 1, 2015, through December 31, 2019. 	Again, the court orders
defendants to provide a new response to this discovery request, signed by
defendants’ lawyer(s), clearly indicating whether any documents have been
withheld pursuant to defendants’ asserted objections.
9. 	Request for Documents No. 11
Request for the production of document number eleven seeks “[a]ll
documents relating to efforts to influence or track ‘recoveries,’ reduction of
reserves, duration of benefits, average claim costs (indemnity), claim closures,
loss rations, combined ratios, or underwriting profit for disability claims from
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January 1, 2012 to present.” 	Docket No. 105-2 at p. 18. 	Plaintiff excludes
from this request “documents from individual claim files relating solely to
specific individual claimants” and “documents that are solely related to efforts
to increase sales.” 	Id.
Defendants asserted a barrage of objections and then stated, “subject to
and without waiving said objections, and after the entry of a Protective Order,
and to the extent the documents are still available,” the Portfolio Metric reports
applicable to” Tagney and McGuiness for the fourth quarter of 2016 and the
first quarter of 2017 and the Weekly Tracking reports for McGuiness for the
same period. 	Id. at pp. 19-20.
In its response in opposition, defendants assert they do not understand
the phrases “efforts to influence” and “combined ratio.” 	Docket No. 114 at
p. 37 (defendants’ brief at p. 32). 	In his reply, Dr. Clark explains “efforts to
influence” are merely words that a sixth-grader should understand. 	Docket
No. 118 at p. 40 (plaintiff’s reply at p. 31). 	Dr. Clark explains that “combined
ratio” is a common insurance industry term defined as “the amount paid in
claims plus the expenses of adjusting claims, divided by the premiums
collected.” 	Id. 	Dr. Clark points out there are thirteen decisions from this
district containing this phrase and discussing it. 	Id. 	The court believes this
issue—simple definition of terms—is something the parties could certainly have
ironed out in their meet-and-confer discussions.
The court notes a protective order is now in place. 	Accordingly, the court
grants Dr. Clark’s motion to compel in part. 	Again, the request will be limited
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to the period from January 1, 2015, through December 31, 2019. 	The request
will be granted for all employees whose personnel files were required to be
produced in response to request number five. 	Again, the court orders
defendants to provide a new response to this discovery request, signed by
defendants’ lawyer(s), clearly indicating whether any documents have been
withheld pursuant to defendants’ asserted objections.
10. 	Request for Documents No. 12
This request seeks “[a]ll documents used, or available for use by any of
the individuals described in Request 5 to assist, or guide them in handling
disability claims or supervising or managing those who handle disability claims
at any time from January 1, [2015]5 to present.” 	Docket No. 105-2 at p. 20.
Defendants asserted thier now-familiar barrage of objections. 	Id. at
pp. 20-21. 	They then stated “[s]ubject to and without waiving said objections,”
defendants would produce the policy of insurance issued to Dr. Clark and the
Benefits Center Claims Manual in effect at the time Dr. Clark’s claim was
denied and at the time his appeal was denied. 	Id. at p. 21.
Defendants argue this request is overbroad and unduly burdensome for
items other than the claims manuals. 	Docket No. 114 at p. 40 (defendants’
brief at p. 35). 	Defendants explain that they have no central repository of all
documents “available for use to assist or guide individuals accountable for the
administration of disability claims for any part of the time period 2015 to
present.” 	See Docket No. 114-14 at p. 3, ¶ 5. 	Additionally, defendants have
5 Plaintiff voluntarily limited its request as indicated at the meet and confer.
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used and “sunsetted” numerous formats and computer systems over the period
covered by request twelve. 	Id. 	Therefore, a search for relevant documents
would require searches of archived computerized records as well as current
records. 	Id. 	Defendants conservatively estimate as many as 4,149 employee
hours might be required to attempt to locate all documents responsive to
request number twelve. 	Id. at p. 5, ¶ 10.
Request number twelve includes group disability policies as well as IDI.
In his reply brief, Dr. Clark agreed to limit this request to documents
addressing the handling of IDI claims. 	Furthermore, defendants’ affidavit
indicates that the location where such documents are stored is known
sufficient to allow defendants to run a computerized search and report how
many “hits” the search yielded. 	Docket No. 114-14 at pp. 2-5, ¶¶ 7-9.
Therefore, as Dr. Clark points out, the majority of the employee hours
defendants proffer is time spent on sorting out the relevant documents from
the irrelevant documents among the “hits.” 	Dr. Clark suggests defendants can
just turn over all documents which were “hits” and he will sort through them.
The court is unconvinced that guidance as to how to handle claims
before Dr. Clark filed his claim or after the appeal on Dr. Clark’s claim was
denied are relevant to any claim or defense in this lawsuit. 	So, as an initial
matter, the court limits request twelve to documents from January 1, 2016,
through December 31, 2017. 	In addition, as per Dr. Clark’s reply brief, the
request is further limited to documents containing guidance as to how to
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handle IDI claims. 	These additional limitations significantly limit the locations
defendants must search and the number of “hits” from those locations.
The court will order defendants to provide documents other than just the
claims manuals which are responsive to request twelve if such documents were
available as guidance for claims handling in IDI claims during the period
January 1, 2016, to December 31, 2017. 	Defendants can choose whether to
produce all documents which are a “hit” for the relevant search terms before
turning those documents over to Dr. Clark, or it can choose to examine those
documents for relevancy before turning them over. 	Again, defendants are
directed to provide a new response, signed by their lawyer(s), indicating
whether any documents were withheld “pursuant to and without waiving”
their objections.
11. 	Request for Documents No. 13
This request seeks “documents sufficient to identify all training or
educational materials related to handling or supervising or managing disability
claims, and made accessible to any of the persons described in Request 5 at
any time from January 1, 2012 to present.” 	Docket No. 105-2 at p. 21.
After asserting a litany of objections, defendants stated that “subject to
and without waiving said objections,” defendants would produce the claims
manuals referenced above in connection with request twelve. 	Id. at p. 22. 	In
its brief in opposition to Dr. Clark’s motion to compel, defendants again asserts
it would take 4,149 hours to attempt to comply with request number thirteen.
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For the same reasons stated above, the court grants in part Dr. Clark’s
motion to compel defendants to produce documents pursuant to request
number thirteen. 	The court limits request thirteen to documents from January
1, 2016, through December 31, 2017. 	In addition, the request is further
limited to documents containing guidance as to how to handle IDI claims.
These additional limitations significantly limit the locations defendants must
search and the number of “hits” from those locations.
The court will order defendants to provide documents other than just the
claims manuals which are responsive to request thirteen if such documents
were available as guidance for claims handling in IDI claims during the period
January 1, 2016, to December 31, 2017. 	Defendants can choose whether to
produce all documents which are a “hit” for the relevant search terms before
turning those documents over to Dr. Clark, or it can choose to examine those
documents for relevancy before turning them over. 	Again, defendants are
directed to provide a new response to request number thirteen, signed by its
lawyer(s), indicating whether any documents were withheld “pursuant to and
without waiving” its objections.
12. 	Request for Documents No. 14
Request for the production of documents number fourteen seeks “[a]ll
guidance, training or reference materials made available to any of the
individuals described in Request 5 relating to evaluation of subjective
symptoms in determining the outcome of claims. 	The scope of this Request is
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for documents available from January 1, 2012 to present.” 	Docket No. 105-2
at p. 23.
Defendants asserted their boilerplate objections and then provided the
claims handling manuals referenced in request twelve “subject to and without
waiving” its objections. 	Id. at pp. 23-24. 	Supplementally, defendants agreed to
conduct a search, after the entry of a protective order, for any training
materials for the period November 2016 through May 2017 relating to the
evaluation of subjective symptoms that was available to “the DBS, Director,
Lead Appeals Specialist, and Appeals Quality Control Consultant involved in
the decision to deny Plaintiff’s claim.” 	Id. at p. 24.
For the same reasons stated above, the court grants in part Dr. Clark’s
motion to compel defendants to produce documents pursuant to request
number fourteen. 	The court limits request fourteen to documents available to
defendants’ employees from January 1, 2016, through December 31, 2017. 	In
addition, the request is further limited to documents containing guidance as to
how to handle IDI claims. 	The court’s order includes documents available to
any employee whose personnel file defendants were ordered to produce in
connection with request number five.
Again, defendants are directed to provide a new response, signed by their
lawyer(s), indicating whether any documents were withheld “pursuant to and
without waiving” its objections.
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13. 	Request for Documents No. 16
Request for the production of documents number sixteen seeks “[a]ll
guidance, training or reference materials made available to any of the
individuals described in Request 5 related to any obligation to give deference to
the opinion of claimant’s treating physician when making a determination of
disability. 	The scope is from January 1, 2012 to present.” 	Docket No. 105-2 at
p. 26.
Defendants initially produced only its claims manual as referenced in
request for documents number twelve “subject to and without waiving” its
many iterations of objections. 	Id. at pp. 26-27. 	Supplementally, defendants,
after the entry of a protective order, agreed to also search for and produce any
training materials for the time period November 2016 through May 2017
relating to giving deference to opinions of treating physicians if those
documents were available to the “DBS, Director, Lead Appeals Specialist, and
Appeals Quality Control Consultant involved in the decision to deny Plaintiff’s
claim.” 	Id. at p. 27.
For the same reasons stated above, the court grants in part Dr. Clark’s
motion to compel defendants to produce documents pursuant to request
number sixteen. 	The court limits request sixteen to documents available to
defendants’ employees from January 1, 2016, through December 31, 2017. 	In
addition, the request is further limited to documents containing guidance as to
how to handle IDI claims. 	The court’s order includes documents available to
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any employee whose personnel file defendants were ordered to produce in
connection with request number five.
Again, defendants are directed to provide a new response, signed by their
lawyer(s), indicating whether any documents were withheld “pursuant to and
without waiving” its objections.
14. 	Request for Documents No. 22
Request for the production of documents number twenty-two seeks “[a]ll
documents made available to train, guide, or assist any of the individuals
described in Request 5 with respect to: 	(a) unfair claims practices; (b) good
faith or bad faith claim handling; (c) wrongful claims handling; (d) extra-
contractual suits or damages. 	The scope of the request is January 1, 2012 to
present.” 	Docket No. 105-2 at p. 31.
Defendants produced its claims manual as referenced in request for
documents number twelve and also agreed to search for and produce “any Fair
Claims Settlement Practice training materials provided to Benefits Center
claims professionals for the time period of Plaintiff’s claim, November of 2016
through May of 2017.” 	Id. at p. 32. 	In their brief in opposition to Dr. Clark’s
motion to compel, defendants represent that they also produced its Fair Claims
Settlement Practices: 	California Regulations Regarding Overpayments, NAIC
Fair Claims Settlement Practices Model Act, and NAIC Unfair Claims
Settlement Practices Model Regulations. 	Docket No. 144 at p. 45 (defendants’
brief at p. 40). 	This production was made “subject to and without waiving”
defendants’ many objections. 	Docket No. 105-2 at p. 32.
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For the same reasons stated above, the court grants in part Dr. Clark’s
motion to compel defendants to produce documents pursuant to request
number twenty-two. 	The court limits request twenty-two to documents
available to defendants’ employees from January 1, 2016, through December
31, 2017. 	In addition, the request is further limited to documents containing
guidance as to how to handle IDI claims. 	The court’s order includes
documents available to any employee whose personnel file defendants were
ordered to produce in connection with request number five.
Again, defendants are directed to provide a new response, signed by their
lawyer(s), indicating whether any documents were withheld “pursuant to and
without waiving” its objections.
15. 	Request for Documents No. 23
Request for the production of documents number twenty-three seeks
“[a]ll transcripts of testimony given by any person appointed as corporate
representatives of defendants or Rule 30(b)(6) witnesses, or any of the
personnel described in Request 5, in cases involving extracontractual lawsuits
arising out of disability claims from January 1, [2012]6 to present.” 	Docket No.
105-2 at p. 32. 	Plaintiff agreed to limit this request to transcripts from
extracontractual lawsuits involving IDI claims. 	Docket No. 105 at p. 63
(plaintiff’s brief at p. 51).
6 Dr. Clark agreed in his reply brief to limit his request to the period from
January 1, 2012 to the present. 	Docket No. 118 at p. 52 (plaintiff’s reply brief
at p. 44). 	The request originally asked for documents from 2010 forward.
Docket No. 105-02 at p. 32.
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Defendants produced no documents in connection with this request,
asserting a plethoral of boilerplate objections, but also objecting on the basis of
relevancy citing State Farm v. Campbell, 123 S. Ct. 1513 (2003) [sic]. 	Docket
No. 105-2 at pp. 32-33.
Dr. Clark argues in his brief in support of an order compelling
documents pursuant to request twenty-three that the District of South Dakota
has routinely approved similar discovery requests in other bad faith cases, a
fact defendants tacitly acknowledge. 	Docket No. 105 at p.63 (plaintiff’s brief at
p. 51) (citing Tovares v. Gallagher Bassett Serv., Inc., 5:16-CV-05051-JLV,
2020 WL 4740455 at *11 (D.S.D. Aug. 14, 2020); Leichtnam v. American
Zurich Ins. Co., 5:15-CV-05012-JLV, 2018 WL 4701353 at *[7] (D.S.D. Sept.
30, 2018); Collins v. St. Paul Fire & Marine Ins. Co., 5:15-CV-05047-JLV, 2016
WL 5794722 at *6 (D.S.D. Sept. 30, 2016); Lillibridge, 2013 WL 1896825 at *8;
Nye, 2013 WL 3107492 at *14; Lyon v. Bankers Life & Cas. Co., 5:09-CV-0507-
JLV, 2011 WL 124629 at *12 (D.S.D. Jan. 14, 2011); Beyer v. Medico Ins. Grp.,
266 F.R.D. 333, 338 (D.S.D. 2009); Hoyme v. Allied Prop. & Cas. Ins. Co., 5:08-
CV-05086-JLV, 2009 WL 10722466 at *8 (D.S.D. Dec. 1, 2009)).
Defendants’ objection based on State Farm Mut. Auto. Ins. Co. v.
Campbell, 538 U.S. 408 (2003), is misplaced for two reasons. 	First, as this
court recently noted, the issue at the discovery phase does not include
considerations as to admissibility of evidence; that is a task left for the Federal
Rules of Evidence at the trial. 	Tovares, 2020 WL 4740455 at **5-6. 	During
discovery, the requesting party need only show that the discovery sought is
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“relevant to any party’s claim or defense” and the fact that the discovery is not
admissible in evidence is not a bar to discovery. 	Fed. R. Civ. P. 26(b)(1).
Second, the Court in Campbell did not hold that evidence of out-of-state
conduct by an insurer was irrelevant. 	Instead, the Court held that even lawful
“out-of-state conduct may be probative when it demonstrates the
deliberateness and culpability of the defendant’s action in the State” where the
litigation is pending so long as “that conduct has a nexus to the specific harm
suffered by the plaintiff.” 	Campbell, 538 U.S. at 422. 	This court holds the
transcripts of prior testimony sought is relevant under Rule 26.
Defendants also assert that the portion of Dr. Clark’s request seeking
deposition transcripts of Rule 30(b)(6) deponents is overbroad and unduly
burdensome. 	Docket No. 114 at p. 49 (defendants’ brief at p. 44). 	Specifically,
defendants assert it will take 558 employee hours to locate such transcripts at
a cost of approximately $22,878 to locate transcripts of testimony of Rule
30(b)(6) designees from prior litigation. 	Id.
The court will limit Dr. Clark’s request to transcripts of testimony of
Rule 30(b)(6) designees, employees whose personnel files were ordered
produced under request number five, or appointed corporate representatives in
extracontractual litigation. 	The court will further limit the request to
transcripts of testimony given between the dates of January 1, 2013, to
January 1, 2021.
Finally, the court notes that Rule 30(b)(6) is sometimes used as a vehicle
to prompt a corporate defendant to designate an IT employee so that the
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opponent can learn how the corporation’s computer system is arranged or a
mail-room clerk to determine how the company’s mail is sorted and delivered.
Defendants need not produce transcripts of its employees or prior employees
that are not concerned with the substantive claims asserted in the
extracontractual litigation. 	Given the limited universe of possible employees
who would have given trial or deposition testimony and the limited number of
years involved, the court trusts this discovery request will not be unduly
burdensome.
Any transcripts produced pursuant to this request shall be subject to the
court’s protective order. 	Any party who wishes to use a transcript or any part
thereof shall redact the transcript so as to protect the identity of defendants’
insured who may be discussed in the testimony.
16. 	Request for Documents No. 24
Request for the production of documents number twenty-four seeks “all
documents showing any agreement in which any insurance business (other
than defendants) may be liable to satisfy all or part of any judgment in this
action or to indemnify or reimburse either defendant for payments made to
satisfy the judgment. 	This includes, but is not limited to, liability coverage or
reinsurance agreements providing any sort of indemnification to either
defendant, for either contractual or extra-contractual payments.” 	Docket No.
105-2 at p. 33.
Defendants produced no documents pursuant to request twenty-four,
asserting that it was duplicative of an earlier request (number thirty, set one)
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and assuring Dr. Clark that defendants are sufficiently solvent to satisfy any
judgment he may obtain. 	Id. 	Dr. Clark agrees he previously asked for this
information, but defendants did not provide it because they asserted this case
was covered by ERISA and that ERISA did not allow such discovery. 	Plaintiff
did not move to compel at that time because of the insertion of the
ERISA issue. 	A year later, the district court held these proceedings were not
governed by ERISA. 	Docket No. 74.
Rule 26 of the Federal Rules of Civil Procedure require defendant,
without plaintiff even asking, to provide “for inspection and copying as under
Rule 34, any insurance agreement under which an insurance business may be
liable to satisfy all or part of a possible judgment in the action or to indemnify
or reimburse for payments made to satisfy the judgment.” 	Fed. R. Civ. P.
26(a)(1)(A)(iv). 	This requirement is not limited to defendants who may not be
solvent. 	Id. 	It applies to any party in a litigation against whom a judgment
may potentially be entered. 	Id. 	The court hereby orders defendants to produce
immediately to Dr. Clark any documents answering the description of the
above-quoted requirement from Rule 26.
17. 	Request for Documents Nos. 25 & 26
Request for the production of documents number twenty-five seeks any
documents on any electronic storage media available to employees whose
personnel files are ordered to be produced under request five containing the
words “pulmonary embolism.” 	Docket No. 105-2 at p. 34. 	The scope of the
request is January 1, 2012, to the present. 	Id. 	If defendant asserts responding
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to request twenty-five is unduly burdensome, request twenty-six seeks
documents identifying the software applications and search capabilities of such
software used by the persons whose personnel files must be produced in
connection with request number five. 	Id. at pp. 35-36.
Defendants have objected to both requests and have not produced any
documents. 	Id. 	As to request twenty-five, defendant allege that their claims
management software, NaviLink, does not have the capability to search across
multiple claim files to identify all claim records containing a certain phrase.
Docket No. 114-16 at p. 3. 	Defendants assert they would have to write a new
computer program in order to perform such a search and that it would take a
dedicated IT team four weeks to draft such a program. 	Id. 	As to request
twenty-six, defendants assert its NaviLink program is proprietary and that the
declaration at Docket 114-16 otherwise answers the question posed in request
twenty-six. 	Docket No. 114-16 at p. 3; Docket No. 114 at p. 55 (defendants’
brief at p. 50).
Dr. Clark’s reply is two-fold. 	First, he notes that defendants have not
complied with request twenty-six merely by providing a self-serving declaration.
Request twenty-six seeks documents. 	At a minimum, Dr. Clark argues he
should be given the NaviLink user’s manual showing the search capabilities of
the NaviLink system. 	Docket No. 118 at p. 56 (plaintiff’s reply brief at p. 47).
In addition, Dr. Clark points out that request twenty-five is not limited to
documents found in claims files. 	Id. at p. 57 (plaintiff’s reply brief at p. 48).
Instead, it asks for emails, intranet resources for claim personnel, training
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materials, and any other documents containing the phrase “pulmonary
embolism.” 	Id. 	Dr. Clark argues the declarations provided by defendants at
Docket Nos. 114-14 and 114-15 demonstrate that other data stored in
defendants’ computer systems are searchable.
Finally, Dr. Clark notes that while outside documents scanned into the
claim file from third parties may not be searchable (because defendants choose
to not make them OCR format enabling search), the claim notes and
information pages are created by defendants themselves and are searchable.
Id. at p. 58 (plaintiff’s reply brief at p. 49).
The court will grant Dr. Clark’s request to compel defendants to respond
to requests twenty-five and twenty-six, although the court limits the scope of
the requests to the period January 1, 2015, through December 31, 2017.
Defendants must produce the documents pursuant to request twenty-five that
they are able to provide, and provide the manual for the NaviLink system
showing the search capabilities of the system as to request twenty-six. 	Any
documents produced pursuant to request twenty-six and documents produced
from other insureds’ claims files pursuant to request twenty-five shall be
protected under the terms of the court’s previously-entered protection order.
18. 	Request for Documents Nos. 27 & 28
This request seeks all claim files in which the claimant alleged disability
due to pulmonary embolism or in which a pulmonary embolism was involved in
causing disability. 	Docket No. 105-2 at p. 36. 	The scope of the request is
January 1, 2010, to May 10, 2017. 	Id. 	If defendants allege it is unduly
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burdensome to respond to request twenty-seven, request twenty-eight seeks
documents identifying the search capabilities of the claim software in use and
the various claim codes available for use by employees using the CAPS or PACE
systems or any claim systems that replaced CAPS or PACE. 	Id. at pp. 37-38.
Defendants objected to both requests and produced no documents. 	Id. at
pp. 37-38.
Dr. Clark argues the information requested is relevant. 	Docket No. 105
at p. 74 (plaintiff’s brief at p. 62). 	He claims that half of all patients who have a
pulmonary embolism experience shortness of breath and fatigue that last more
than one year. 	Id. 	The information requested in request twenty-seven will
show that defendants have encountered other claimants who, like Dr. Clark,
experienced such chronic symptoms, thus tending to show that they knew or
should have known that chronic fatigue can result from a pulmonary
embolism. 	Id.
Defendants reassert their arguments in connection with requests twenty-
five and twenty-six with regard to requests twenty-seven and twenty-eight.
Docket No. 114 at p. 55 (defendants’ brief at p. 50).
In his reply brief, Dr. Clark points out that his request does not require a
word search of defendants’ claim files. 	Docket No. 118 at p. 59 (plaintiff’s reply
brief at p. 50). 	Dr. Clark asserts that defendants code their claim files by
disability type so that they can later generate reports showing how much they
pay due to various medical conditions. 	Id. 	For example, Dr. Clark’s own
claims file was coded pursuant to the International Classification of Diseases
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(“ICD”), 9th Edition using the code “415.19,” which is the ICD code for “other
pulmonary embolism and infarction.” 	Id. 	Therefore, Dr. Clark asserts
defendants may rely on the code it assigns to claims involving pulmonary
embolisms to identify the relevant files. 	Id.
The court will grant Dr. Clark’s request to compel defendants to respond
to requests twenty-seven and twenty-eight, although the court limits the scope
of the requests to the period January 1, 2015, through December 31, 2017.
Defendants must either produce the documents pursuant to request twenty-
seven, or provide the manual for the NaviLink system showing the search
capabilities of the system as to request twenty-eight. 	Any documents produced
pursuant to request twenty-seven and request twenty-eight shall be protected
under the terms of the court’s previously-entered protection order.
19. 	Request for Documents No. 29
Request for the production of documents number twenty-nine, as
modified after the parties’ meet and confer session, seeks all emails and
attachments containing the words “recovery” or “recoveries” and “financial”
which were sent by or received by Maureen Griffin, Paul Peter, Denise Houser,
Lynn McGuiness, Sean Tangney, Maureen Turner, Judith Cohen, Beth
Schnars, and James Bress between the dates of January 1, 2015, and January
1, 2018. 	Docket No. 105-2 at p. 38.
In response, defendants asserted a long list of objections, and then
“subject to and without waiving” said objections, defendants produced
responsive documents from November 22, 2016, to May 10, 2017, for
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McGuiness, Tangney, Turner, Cohen and Schnars. 	Id. at p. 39. 	In their brief
in opposition to plaintiff’s motion, defendants argue that plaintiff’s bad faith
claim is based on the allegation defendants used biased medical professionals
and ignored opinions of treating physicians in evaluating Dr. Clark’s claim, not
that defendants denied his claim to “save a buck.” 	Docket No. 114 at p. 56
(defendants’ brief at p. 51). 	Therefore, defendants assert the request is not
aimed at producing relevant documents.
In addition, defendants produced 424 pages of documents for the six-
month period it agreed was relevant and for the five employees directly involved
in handling Dr. Clark’s claim. 	Id. at p. 57 (defendants’ brief at p. 52).
Defendants assert none of those documents produced have any bearing
whatsoever on plaintiff’s claim, on defendants’ reserves, or on anything related
to “recovery” metrics or “recoveries of reserves.” 	Id.
In his reply brief, Dr. Clark asserts that defendants know that setting
targets for reserve recoveries is highly improper and that is most likely why it
communicates these matters verbally instead of memorializing them in writing
as evidenced by Paul Peter’s deposition testimony. 	Docket No. 118 at p. 61
(plaintiff’s brief at p. 52). 	Dr. Clark suggests that emails of higher-level
employees are more likely to reflect the kind of improper policy-setting he
suspects was used in his case. 	Id. 	Dr. Clark does not address defendants’
assertion that the discovery is irrelevant nor does Dr. Clark refute the assertion
that the 424 pages produced already in response to request twenty-nine were
not relevant to his claims.
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Dr. Clark’s reply is self-defeating. 	He acknowledges that Peter testified
information about reserves was communicated orally. 	He does not refute that
the partial discovery produced already was unavailing. 	And he does not
address defendants’ relevancy argument.
Dr. Clark’s complaint alleges defendants denied his claim for disability
benefits based upon the statistical average recovery time for pulmonary
embolisms instead of reviewing the claim based on the symptoms and recovery
Dr. Clark specifically experienced. 	Docket No. 1 at p. 8. 	Defendants cited
opinions from two physicians in support of their denial of Dr. Clark’s claim,
and Dr. Clark alleges these physicians were biased. 	Id.
Dr. Clark alleges in his complaint that defendants ignored his own
treating physician’s opinion and records. 	Id. 	Dr. Clark asserted that
defendants improperly based their denial of his claim upon the absence of
objective evidence. 	Id. 	Dr. Clark alleged that defendants previously ran into
regulatory trouble by denying claims for lack of objective evidence and
employing biased physicians. 	Id. at pp. 10-11. 	Dr. Clark alleged defendnats
did not conduct a reasonable investigation of his claim seeking the truth, but
rather seized on isolated pieces of information to give it a pretext for denying
his claim. 	Id. at p. 11. 	There is nothing in Dr. Clark’s complaint alleging either
defendant manipulated reserves in order to make money. 	Docket No. 1.
Dr. Clark asserts he pleaded a claim that defendants engaged in a
“pattern and practice of wrongful claims denials.” 	This is true, but Dr. Clark’s
pleading states in full: 	“defendants [sic] conduct is part of a pattern and
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practice of wrongful claim denials intentionally seeking to minimize claim
payouts through the use of biased medical personnel, and use of schemes such
as imposing fictional requirements of objective diagnostic tests as a condition
of coverage, and ignoring evidence from claimants and treating physicians.”
Docket No. 1 at p. 16, ¶ 113.
The court agrees with defendants that Dr. Clark did not plead a claim in
his complaint that defendants manipulated its reserves in order to make
money. 	Rather, he claims that defendants used biases doctors and unrealistic
requirements to deny coverage. 	Id. 	Although Rule 8 requires only notice
pleading by giving a “short and plain statement of the claim” (Fed. R. Civ. P.
8(a)(2)), the court does not read Dr. Clark’s complaint as pleading a pattern
and practice of denying claims by manipulating recoveries. 	Dr. Clark has failed
to show that the evidence sought is relevant to a claim or defense under Rule
26(b)(1).
In addition, given the lack of relevant information contained in the 484
pages produced already and Peter’s testimony that reserve-setting was
discussed orally and not in writing, the court finds defendants should not be
compelled to produce further documents in response to request twenty-nine.
Sometimes a seemingly good search formulation, as in Westlaw or Nexis,
simply does not turn up the desired results. 	The court finds request twenty-
nine is one such unfortunate attempt at a search. 	Accordingly, the court
denies Dr. Clark’s motion to compel further response by defendants to request
twenty-nine.
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20. 	Request for Documents No. 30
As modified after the meet and confer session between the parties,
request for the production of documents number thirty seeks “[a]ll documents
relating to past or future ‘recovery’ performance or expectations provided or
made available to any disability claims personnel described in Request 5 from
January 1, [2015] to present.”
In response, defendants again asserted a number of objections and then,
“subject to and without waiving” said objections, defendants agreed to produce
the same documents it produced in response to request number eleven.
Compare Docket No. 105-2 at pp. 19-20, with Docket No. 105-2 at p. 41.
Those documents were the portfolio metric reports for the last quarter of 2016
and the first quarter of 2017 for Tangney and McGuiness and the weekly
tracking reports for the same period for McGuiness. 	Id.
Although defendants asserted the same relevancy objection discussed
above, it nevertheless produced documents responsive to the request. 	Id.; see
also Docket No. 114 at p. 58 (defendants’ brief at p. 53).
The court notes a protective order is now in place. 	Accordingly, the court
grants Dr. Clark’s motion to compel in part. 	The request will be limited to the
period from January 1, 2015, through December 31, 2019. 	The request will be
granted for all employees whose personnel files were required to be produced in
response to request number five. 	The court orders defendants to provide a new
response to this discovery request, signed by defendants’ lawyer(s), clearly
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indicating whether any documents have been withheld pursuant to defendants’
asserted objections.
21. 	Request for Documents No. 31
Request for the production of documents number thirty-one, as modified
following the parties’ meet and confer session, seeks “[a]ll documents reflecting
the methodology for calculating the expected number of ‘recoveries’ from
January 1, [2015], to [January 1, 2018].” 	Docket No. 105-2 at p. 41.
Defendants asserted numerous objections to this request, gave a detailed
explanation of how “recoveries” are calculated, then agreed to produce, “subject
to and without waiving” its objections, the same weekly report for McGuiness
that was produced in response to requests number eleven and thirty. 	Docket
No. 105-2 at p. 42.
Plaintiff points out that this discovery request is a request for
documents, not an interrogatory. 	Therefore, he rejects defendants’ “self-
serving” explanation of the methodology for calculating recoveries and requests
that the court order defendants to produce the documents that describe the
methodology. 	Docket No. 105 at p. 83 (plaintiff’s brief at p. 71). 	Also, the
weekly tracking reports defendants have agreed to produce may show the
expected recoveries, but again, they do not show the methodology behind how
those figures are calculated. 	Id.
Defendants again point to their explanation of how defendants calculate
their reserves as shown in Unum’s 2021 Annual Report and argue they have
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already produced the documents responsive to this request. 	Docket No. 114 at
p. 60 (defendant’s brief at p. 55).
Plaintiff defined the term “recovery” or “recoveries” in his document
requests as follows: 	“a reduction in reserves that results from denial of a claim
or termination of benefits already being paid on a claim.” 	Docket No. 105-1 at
p. 1. 	The document defendants produced from its annual report does not
explain how “recoveries” are calculated. 	See Docket No. 114-13. 	Instead, that
document describes how “reserves” are set. 	Id. 	Plaintiff is inquiring about
recoveries in request number thirty-one, not reserves. 	Accordingly, the annual
report is not responsive to plaintiff’s request.
The court notes a protective order is now in place. 	Accordingly, the court
grants Dr. Clark’s motion to compel in part. 	The request will be limited to the
period from January 1, 2015, through January 1, 2018. 	The request will be
granted for all employees whose personnel files were required to be produced in
response to request number five. 	The court orders defendants to provide a new
response to this discovery request, signed by defendants’ lawyer(s), clearly
indicating whether any documents have been withheld pursuant to defendants’
asserted objections.
22. 	Request for Documents No. 32
Request for the production of documents number thirty-two seeks “[a]ll
documents reflecting the financial impact of meeting or failing to meet
targeted/expected number of ‘recoveries’ from January 1, 2015, to [January 1,
2018]. 	This includes any financial analysis, investor analysis, actuarial
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analysis, studies, investigation or summaries thereof.” 	Docket No. 105-2 at
p. 42. 	Defendants produced no documents in response to this request.
Defendants object to this request, professing to not understand what the
terms “financial impact” and “studies” mean. 	Docket No. 114 at p. 61
(defendants’ brief at p. 56). 	Defendants also argue that the request is not
relevant to plaintiff’s claims as described in his complaint—the complaint does
not claim that defendants manipulated recoveries in order to make money.
Docket No. 1.
The court has already addressed defendants’ relevancy argument with
regard to the facts and claims presented in Dr. Clark’s complaint. 	Even
applying a broad notice pleading standard, the complaint simply does not
allege a claim or a pattern and practice by defendants to deny claims so as to
increase their “recoveries.” 	See Docket No. 1 at p. 16, ¶ 113. 	The court
declines to grant plaintiff’s request to compel disclosures pursuant to request
number thirty-two.
23. 	Request for Documents No. 35
Request for the production of documents number thirty-five seeks all
scorecards of all defendants’ ID directors for the period January 1, 2015,
through January 1, 2018. 	Docket No. 105-2 at p. 45. 	Defendants asserted a
number of objections, and then produced “subject to and without waiving” said
objections, quarterly scorecards for McGuiness for the period of time between
when Dr. Clark filed his claim and when it was finally denied on appeal. 	Id. at
p. 46.
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Defendants assert that McGinnis was not only the only ID Director
involved in Dr. Clark’s claim, but that McGinnis is also the only ID Director in
the complete chain of command connected to those who handled Dr. Clark’s
claim.
The court grants plaintiff’s motion to compel in part as to request thirty-
five. 	Defendants are ordered to produce all ID directors’ scorecards for any ID
director whose personnel file was required to be produced pursuant to request
number five for the time period January 1, 2015, to January 1, 2018. 	As
previously discussed herein, this court compelled production of personnel files
for those who were directly responsible for handling Dr. Clark’s claims and
those who were in the chain of command above those claims handlers. 	If an ID
Director was neither involved in handling Dr. Clark’s claim nor in the chain of
command above those who handled Dr. Clark’s claim, defendants need not
produce scorecards for any such ID Director. 	Defendants are directed to
provide a new response, signed by their lawyer(s), explicitly indicating whether
any documents are being withheld pursuant to an objection.
24. 	Request for Documents No. 40
Request for the production of documents number forty seeks “[a]ll
Performance Plans for AVPs involved in overseeing IDI Benefits and for IDI
Benefits Operations Directors from January 1, 2015 to January 1, 2018.”
Docket No. 105-2 at p. 50. 	Defendants objected and then, “subject to and
without waiving said objections,” defendants produced performance plan
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templates for Tangney, McGuiness, the AVP in charge of McGuiness, and
Turner. 	Docket No. 114 at p. 62 (defendants’ brief at p. 57).
Dr. Clark argues the documents produced by defendants were merely
templates, not the actual performance plans of the individuals involved.
Docket No. 105 at p. 89 (plaintiff’s brief at p. 77). 	Thus, plaintiff asserts the
documents are not responsive to the request. 	Id.
Defendant argues only one AVP was in the “chain of command” with
regard to the personnel who handled Dr. Clark’s claim. 	Docket No. 114 at
p. 63 (defendants’ brief at p. 58).
The court grants plaintiff’s motion to compel with regard to request
number 40 in part. 	Defendants must produce the actual performance plan(s)
for the AVP who was in the chain of command for handling plaintiff’s claim for
the period January 1, 2015, to January 1, 2018. 	Defendants need not produce
performance plans for other AVPs who were not in the chain of command
concerning the handling of Dr. Clark’s claim. 	Defendants shall serve plaintiff
with a new response to request number forty, signed by their lawyer(s),
explicitly stating whether any documents are being withheld pursuant to any
objection. 	This document production shall be subject to the court’s previously-
entered protective order.
25. 	Request for Documents No. 41
Request for the production of documents number forty-one seeks “[a]ll
Scorecards for the individuals described in Request 5 from 2012 to present.”
Docket No. 105-2 at p. 50. 	Defendants objected on many grounds and then
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produced, “subject to and without waiving” said objections, the scorecards for
Tangney and McGuiness for the period of time between when Dr. Clark filed his
claim to when it was denied on appeal. 	Id.
The court grants in part plaintiff’s request to compel defendants to
produce more. 	Defendants shall produce the scorecard for every individual the
personnel file of which the court ordered to be produced pursuant to request
five. 	However, the defendants need only produce scorecards for the period
from January 1, 2015, through December 31, 2017. 	Defendants shall file a
new response to request number forty-one, signed by their lawyer(s), explicitly
indicating whether any documents are being withheld pursuant to any
objection. 	Documents produced pursuant to request forty-one shall be subject
to the court’s previously-issued protective order.
26. 	Request for Documents No. 44
As modified after the parties’ meet and confer session, request for the
production of documents number forty-four seeks “[a]ll reports or opinions
relating to IDI disability claims provided by James Bress, MD; Judith Cohen,
and Beth Schnars, to either defendant or to Provident Life & Accident
Insurance Company from January 1, 2015, to January 1, 2018.” 	Docket No.
105 at p. 92 (plaintiff’s brief at p. 80). 	Defendants lodged numerous objections
to this request and produced no documents. 	Docket No. 105-2 at p. 54.
Plaintiff explains that each of the named persons are doctors who work
for defendants and who provided opinions that Dr. Clark could return to work
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weeks after he experienced his pulmonary embolism. 	Docket No. 105 at p. 93
(plaintiff’s brief at p. 81).
Defendants objects that plaintiff’s original request only sought
documents authored by Dr. Bress, so by moving to compel as to documents
authored by Drs. Cohen and Schnars, plaintiff seeks an order as to a request
that was never made. 	Docket No. 114 at p. 65 (defendants’ brief at p. 60).
Furthermore, defendants object to production of documents authored by
Dr. Bress for another entity—Provident Life—which is not even a party herein.
Id. 	Defendants also object in that request number forty-four is not limited to
opinions regarding pulmonary embolisms. 	Id. 	Because plaintiff’s request
seeks opinions from Dr. Bress on any disability, defendants argue, the validity
of that opinion will only be apparent after reviewing all the claims and medical
records in each case for which an opinion was rendered, thus requiring a series
of mini-trials. 	Id. 	Defendants also argue granting the request invades the
privacy of the claimants involved in the other cases in which Dr. Bress
rendered opinions. 	Id. at p. 67 (defendants’ brief at p. 62).
Request number forty-four is clearly relevant, but the court finds it
overbroad. 	First, the court will only order production of opinions given to the
defendants in this case, not to Provident Life. 	Second, although Drs. Cohen
and Schnars were not named in the original request, that is because plaintiff
did not know they were staff physicians employed by defendants until the meet
and confer. 	As a matter of conserving judicial resources and heading off yet
another motion to compel in this case, the court will require defendants to
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produce opinions rendered by Drs. Cohen and Schnars as well as Dr. Bress.
Opinions from these three doctors need only be produced for the period stated
in the request.
The court believes the defendants’ assertion that the production should
be limited to claims involving pulmonary embolisms is well taken. 	Opinions as
to whether, for example, breast cancer or a displaced vertebral disc are
disabling within the meaning of an IDI policy are of dubious relevance to
Dr. Clark’s claim, despite plaintiff’s anecdotal reference in its reply brief. 	Only
opinions as to IDI disability claims involving pulmonary embolisms need be
produced.
CONCLUSION
Based on the foregoing facts, law and analysis, this court grants in part
and denies in part plaintiff’s second motion to compel [Docket No. 101]
consistent with this opinion.
Any production of documents or revised responses to discovery requests
required of defendants by this opinion shall be served on plaintiff within twenty
(20) days of the date of this opinion unless objections are timely lodged with
the district court. 	If objections are lodged with the district court, defendants’
obligation to produce documents and provide new responses will be suspended
until the district court resolves the objections.
Plaintiff seeks attorney’s fees for the bringing of this motion to compel in
accord with Fed. R. Civ. P. 37. 	The court orders plaintiff to serve defendants
within twenty (20) days of the date of this opinion a motion for attorneys fees
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together with a detailed accounting of the time spent in preparing and
defending this motion. 	Defendants shall have twenty-one (21) days to respond
in opposition thereto. 	Plaintiff may file a reply within fourteen (14) days. 	If
objections are lodged to this opinion, all litigation over attorneys fees will be
suspended until the outcome of such objections is known. 	If objections are
timely filed, plaintiff shall hold in abeyance any motion for attorney’s fees until
the objections are resolved.
NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. § 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. 	The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. § 636(b)(1)(A),
unless an extension of time for good cause is obtained. 	See FED. R. C IV . P.
72(a); 28 U.S.C. § 636(b)(1)(A). 	Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. 	Id. 	Objections must be
timely and specific in order to require review by the district court. 	Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED November 28, 2022.
BY THE COURT:
VERONICA L. DUFFY
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United States Magistrate Judge
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