finding five years of financial information attributable to 4 performing expert witness services on behalf of insurance companies to be appropriate
How later courts described this case
- finding five years of financial information attributable to 4 performing expert witness services on behalf of insurance companies to be appropriate
- noting in a personal injury case that “the fact that an expert witness may 24 25 an expert in support of a party and the amount of compensation received”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 RICHARD J. LEUNG, MD, Case No.: 22-cv-00767-W-JLB
12 Plaintiff,
ORDER:
13 v.
(1) GRANTING PLAINTIFF’S
14 UNUM LIFE INSURANCE COMPANY
MOTION TO COMPEL FURTHER
OF AMERICA,
15 RESPONSE BY DEFENDANT TO
Defendant. REQUEST FOR PRODUCTION OF
16
DOCUMENTS (SET NO. 3); AND
17
(2) DENYING PLAINTIFF’S
18
MOTION TO COMPEL FURTHER
19 RESPONSE BY DEFENDANT TO
REQUEST FOR PRODUCTION OF
20
DOCUMENTS (SET NO. 4)
21
[ECF Nos. 23, 38]
22
23
24 Before the Court are two motions to compel filed by Plaintiff Richard J. Leung, M.D.
25 (“Plaintiff”). (ECF Nos. 23, 38.) In the first motion, Plaintiff seeks to compel Defendant
26 Unum Life Insurance Company of America (“Defendant”) to provide further responses to
27 Plaintiff’s Request for Production of Documents, Set Three. (ECF No. 23.) Defendant
28 opposes. (ECF No. 26.) In the second motion, Plaintiff seeks to compel Defendant to
1 provide further responses to Plaintiff’s Request for Production of Documents, Set Four.
2 (ECF Nos. 38, 44.) Defendant opposes. (ECF No. 42.)
3 For the reasons set forth below, the Court GRANTS Plaintiff’s motion to compel
4 further response to Request for Production of Documents, Set Three (ECF No. 23), and
5 DENIES Plaintiff’s motion to compel further response to Request for Production of
6 Documents, Set Four (ECF No. 38).
7 I. BACKGROUND
8 This lawsuit arises from a dispute over benefits under several disability income
9 insurance policies Defendant issued to Plaintiff, who claims to be totally disabled as of
10 May 2020 due to purported accidents occurring as far back as 1982. (ECF No. 1
11 (“Compl.”) at ¶¶ 1–3, 30–32, 38; see also ECF No. 26 at 2.) Under Plaintiff’s policies,
12 benefits are payable for up to the longer of 24 months or age 65 for disabilities due to
13 sickness, and for an insured’s lifetime for disabilities due to accident, if the disability starts
14 prior to the age 65 policy anniversary. (ECF No. 26 at 2.) Plaintiff, prior to his 65th
15 birthday, submitted a claim to Defendant, contending his disability resulted from accidents
16 which caused pain, numbness, and loss of mobility in his lumbar and cervical spine. (Id.;
17 see also Compl. ¶ 31.) Defendant determined Plaintiff’s claim was due to sickness and
18 paid the maximum benefits for 24 months. (ECF No. 26 at 2; see also Compl. ¶¶ 5, 34,
19 39.) In his Complaint, Plaintiff brings claims against Defendant for breach of contract and
20 breach of the implied covenant of good faith and fair dealing, disputing Defendant’s claim
21 determination. (Compl. at 7–10.) Plaintiff maintains he is totally disabled due to accidents
22 and entitled to continued benefits for his lifetime. (Id.)
23 In his first motion, Plaintiff seeks to compel further responses to Requests for
24 Production (“RFP”) Nos. 53 and 54 in Plaintiff’s Request for Production, Set Three. (ECF
25 No. 23.) The requests at issue and responses thereto are as follows:
26
RFP No. 53: YOUR billing DOCUMENTS or other financial writings that
27 indicate the total number of times (in yearly or monthly summaries) that YOU
28
1 hired Dane Street – A Medical Review Company from 2016-2021. (Personal
identifying information of other insureds should be redacted if applicable).
2
3 Response: Defendant objects to this request on the grounds set forth in the
General Objections and further objects on the grounds that: (1) it is vague and
4 ambiguous, particularly as to the phrase “your billing DOCUMENTS or other
5 financial writings” as it does not state with reasonable clarity the documents
sought; (2) it is overly broad in time and scope, particularly since Plaintiff did
6 not submit his claim until June of 2020; (3) it seeks documents that are not
7 relevant to the claims or defenses of any party to this litigation and it is not
proportional to the needs of the case. Furthermore, it seeks documents that
8 were not considered in the evaluation of Plaintiff’s claim; (4) given the
9 breadth of the request and in conjunction with the vague and ambiguous
objection, Defendant further objects to this request: (i) to the extent this
10 request encompasses post litigation documents that would be protected by the
11 attorney-client privilege and/or work product doctrine; (ii) to the extent it
seeks to discover confidential business records, private employment
12 information of third parties to this lawsuit which may not be disclosed without
13 infringing on a third-party’s privacy rights; and (iii) to the extent Defendant
is unable to assess burden, if any, and proportionality.
14
RFP No. 54: All 1099-MISC and/or W-9 forms issued to Dane Street – A
15
Medical Review Company by YOU, from 2016-2021 for services provided to
16 DEFENDANT.
17 Response: Defendant objects to this request on the grounds set forth in the
18 General Objections and further objects on the grounds that: (1) it is overly
broad in time and scope; (2) it seeks documents that are not relevant to the
19 claims or defenses of any party to this litigation and it is not proportional to
20 the needs of the case. Furthermore, it seeks documents that were not
considered in the evaluation of Plaintiff’s claim; and (3) given the breadth of
21 the request, Defendant further objects to this request: (i) to the extent this
22 request encompasses post litigation documents that would be protected by the
attorney-client privilege and/or work product doctrine; (ii) to the extent it
23 seeks to discover confidential business records.
24 (ECF No. 23-2.)
25 After Defendant served responses to Plaintiff’s Request for Production, Set Three,
26 on November 7, 2022, the parties met and conferred on multiple occasions. (ECF Nos. 23-
27 1 at 2; 23-2; 26 at 6–7.) The parties thereafter lodged a Joint Discovery Statement
28 addressing the RFPs at issue on December 7, 2022. (ECF No. 17.) The Court held an
1 informal Discovery Conference on December 15, 2022. (ECF No. 18.) The parties further
2 met and conferred after the Discovery Conference. (ECF No. 23-1 at 2.) Despite the
3 parties’ meet and confer efforts, they were unable to resolve their dispute as to RFP Nos.
4 53 and 54 and filed the present motion in accordance with the Court’s briefing schedule.
5 (See ECF Nos. 22; 23-1 at 2.)
6 In his second motion, Plaintiff seeks to compel further responses to RFP Nos. 58,
7 59, 67, 68, and 76 in Plaintiff’s Request for Production, Set Four, which was served on
8 December 14, 2022. (ECF Nos. 38; 42 at 5.) The requests at issue and responses thereto
9 are as follows:
10
RFP No. 58: Produce UNUM’s Quality Assurance Tool as identified in the
11 Statement of Work between Dane Street, LLC and UNUM (At LEUNG-
12 RFP50-002, paragraph 1.11) in effect in 2020 to the present.
13 Response: Defendant incorporates the General Objection above and further
objects to this Request on the following grounds: (1) it seeks production of an
14
application, not a document; (2) it seeks information/documents which is/are
15 not relevant to the claims or defenses of any party to this action; (3) it is not
proportional to the needs of the case pursuant to FRCP 26(b)(1) considering
16
the amount in controversy, the importance of the issues at stake in the action,
17 and the importance of the discovery sought in resolving the issues, particularly
because it seeks information not used in the adjudication of Plaintiff’s claim;
18
(4) it is overbroad; and (5) it seeks confidential trade and business data or
19 other non-public, proprietary, or confidential documents or information
protected from disclosure by applicable law.
20
21 RFP No. 59: Produce UNUM’s Quality Assurance Standards to Dane Street
as identified in the Statement of Work between Dane Street, LLC and UNUM
22 in effect from 2020 to the present (At LEUNG-RFP50-003).
23
Response: Defendant incorporates the General Objection above and further
24 objects to this Request on the following grounds: (1) it seeks
information/documents which is/are not relevant to the claims or defenses of
25
any party to this action; (2) it is overbroad in scope; (3) it is not proportional
26 to the needs of the case pursuant to FRCP 26(b)(1) considering the amount in
controversy, the importance of the issues at stake in the action, and the
27
importance of the discovery sought in resolving the issues, particularly
28 because it seeks information not used in the adjudication of Plaintiff’s claim;
1 (4) it is overbroad; and (4) it seeks confidential trade and business data or
other non-public, proprietary, or confidential documents or information
2
protected from disclosure by applicable law.
3
RFP No. 67: Produce all monthly monitoring reports between May 2020 and
4 January 2022 as identified in the Statement of Work (SOW) for Dedicated
5 Medical Officer Review Services between Dane Street, LLC and UNUM.
6 Response: Defendant incorporates the General Objection above and further
objects to this Request on the following grounds: (1) it is vague and
7
ambiguous; (2) it seeks documents which are not relevant to the claims or
8 defenses of the parties to this litigation; (3) it is overbroad in scope and unduly
burdensome; (4) it is not proportional to the needs of the case pursuant to
9
FRCP 26(b)(1) considering the amount in controversy, the importance of the
10 issues at stake in the action, and the importance of the discovery sought in
resolving the issues, particularly because it seeks information not used in the
11
adjudication of Plaintiff’s claim; and (5) it seeks confidential trade and
12 business data or other non-public, proprietary, or confidential documents or
information protected from disclosure by applicable law.
13
14 RFP No. 68: Produce all issues and Outcome Reports between May 2020 and
Jan 2022 as identified in the Statement of Work (SOW) for Dedicated Medical
15 Officer Review Services between Dane Street, LLC and UNUM.
16
Response: Defendant incorporates the General Objection above and further
17 objects to this Request on the following grounds: (1) it is vague and
ambiguous; (2) it seeks documents which are not relevant to the claims or
18
defenses of the parties to this litigation; (3) it is overbroad in scope and unduly
19 burdensome; (4) it is not proportional to the needs of the case pursuant to
FRCP 26(b)(1) considering the amount in controversy, the importance of the
20
issues at stake in the action, and the importance of the discovery sought in
21 resolving the issues, particularly because it seeks information not used in the
adjudication of Plaintiff’s claim; and (5) it seeks confidential trade and
22
business data or other non-public, proprietary, or confidential documents or
23 information protected from disclosure by applicable law.
24 RFP No. 76: Produce all UNUM Companies Supplier Reports between Dane
25 Street and UNUM as identified in the Statement of Work (SOW) for
Dedicated Medical Officer Review Services between Dane Street, LLC and
26 UNUM.
27
Response: Defendant incorporates the General Objection above and further
28 objects to this Request on the following grounds: (1) it seeks documents which
1 are not relevant to the claims or defenses of the parties to this litigation; (2) it
is overbroad in scope and unduly burdensome; (3) it is not proportional to the
2
needs of the case pursuant to FRCP 26(b)(1) considering the amount in
3 controversy, the importance of the issues at stake in the action, and the
importance of the discovery sought in resolving the issues, particularly
4
because it seeks information not used in the adjudication of Plaintiff’s claim;
5 and (4) it seeks confidential trade and business data or other nonpublic,
proprietary, or confidential documents or information protected from
6
disclosure by applicable law.
7
8 (ECF No. 38-3.)
9 After Defendant served responses to Plaintiff’s Request for Production, Set Four, on
10 January 30, 2023, the parties met and conferred. (ECF Nos. 38 at 11; 42 at 6.) The parties
11 thereafter lodged a Joint Discovery Statement addressing these RFPs on March 8, 2023.
12 (ECF No. 33.) The Court held an informal Discovery Conference on March 23, 2023.
13 (ECF Nos. 33, 34.) Despite the parties’ meet and confer efforts, they were unable to resolve
14 their dispute as to RFPs 58, 59, 67, 68, and 76, and filed the present motion in accordance
15 with the Court’s briefing schedule. (ECF No. 35.)
16 II. LEGAL STANDARD
17 The Federal Rules of Civil Procedure authorize parties to obtain discovery of any
18 nonprivileged information discoverable under Rule 26 if it is (1) relevant, and (2)
19 proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1), as amended
20 in 2015, provides that parties—
21
may obtain discovery regarding any nonprivileged matter that is relevant to
22 any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
23
controversy, the parties’ relative access to the information, the parties’
24 resources, the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely benefit.
25
26 Id.
27 Evidence must be “relevant to any party’s claim or defense” to fall within the scope
28 of permissible discovery. Id. The 2015 amendment to Rule 26(b) deleted the phrase
1 “reasonably calculated to lead to the discovery of admissible evidence” because it was
2 often misconstrued to define the scope of discovery and had the potential to “swallow any
3 other limitation.” Fed. R. Civ. P. 26(b)(1) advisory committee’s notes to 2015 amendment;
4 see also San Diego Unified Port Dist. v. Nat’l Union Fire Ins. Co. of Pittsburg, PA, No.
5 15CV1401-BEN-MDD, 2017 WL 3877732, at *1 (S.D. Cal. Sept. 5, 2017). The
6 amendment replaced this phrase with the statement that information “need not be
7 admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1) advisory committee’s
8 notes to 2015 amendment.
9 Information must also be “proportional to the needs of the case” to fall within the
10 scope of permissible discovery. Fed. R. Civ. P. 26(b)(1). When analyzing the
11 proportionality of a party’s discovery requests, a court should consider the importance of
12 the issues at stake in the action, the amount in controversy, the parties’ relative access to
13 the information, the parties’ resources, the importance of the discovery in resolving the
14 issues, and whether the burden or expense of the proposed discovery outweighs its likely
15 benefit. Id.
16 Under Federal Rule of Civil Procedure 34, a party may request the production of
17 documents within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). If a party fails to produce
18 documents pursuant to Rule 34, the propounding party may bring a motion to compel. See
19 Fed. R. Civ. P. 37(a).
20 III. DISCUSSION
21 A. Motion to Compel Request for Production, Set Three (ECF No. 23)
22 1. Parties’ Arguments
23 Plaintiff contends the primary dispute in the case is over whether his disability is due
24 to sickness or an accident—i.e., whether his cervical spine and lumbar spine disabilities
25 and impairments are due to diffuse degenerative disc disease or industrial injuries. (See
26 Compl. ¶ 38; see also ECF No. 23 at 2.) Defendant has determined that Plaintiff’s claimed
27 disability is due to sickness, while Plaintiff claims his disability is due to an accident. (ECF
28
1 No. 23 at 2.) This determination impacts Plaintiff’s recovery under his insurance policies
2 with Defendant. (See ECF No. 26 at 2.)
3 In determining that Plaintiff’s disability is due to sickness, Defendant relied on the
4 opinions of a third-party medical review company, Dane Street, LLC (“Dane Street”) and
5 the physicians it hired to render opinions. (ECF Nos. 23 at 2; 26 at 3–6.) Specifically,
6 Defendant relied on the opinions of Dane Street’s physicians, Marvin Friedlander, M.D.
7 and Steven Milos, M.D., who concluded that Plaintiff’s disability was due to a sickness,
8 and therefore no lifetime benefits were payable.1 (ECF Nos. 23 at 2; 26 at 3–6.) Plaintiff
9 contends that Dr. Friedlander is a Medical Director of Dane Street and therefore not truly
10 independent. (ECF No. 23 at 8.) Defendant disputes this contention, arguing that the title
11 of “Medical Director” is simply a “generic term used by utilization review companies for
12 doctors who review cases and is not Dane Street’s terminology.” (ECF No. 26 at 9; see
13 also ECF No. 26-2 at 39–40.) Dr. Friedlander reportedly performed reviews for two
14 referrals from Dane Street related to Defendant’s insureds between 2018 and 2021, while
15 Dr. Milos performed reviews for 739 referrals from Dane Street related to Defendant’s
16 insureds between 2018 and 2021. (ECF No. 38-1 at 2; see also ECF No. 23 at 10.)2
17 Plaintiff contends that Dr. Milos’ relationship with Dane Street was significant. (ECF No.
18 23 at 10.)
19 Plaintiff now seeks to compel discovery aimed at “uncovering [Defendant] and Dane
20 Street’s long-standing, ongoing and substantial relationship with each other, and
21 Dane Street’s long-standing, ongoing and substantial relationship with Dr. Friedlander and
22 Dr. Milos.” (Id. at 2.) Plaintiff argues the requested documents are necessary to support
23
24
25 1 Defendant also relied on the opinion of Philip Lahey, M.D., who performed the on-
site physician review for Plaintiff’s claim. (ECF No. 26 at 3.) Dr. Lahey concurred with
26
the opinions of Dr. Milos and Dr. Friedlander. (Id. at 4–6.)
27 2 In a subsequent reply, Plaintiff represents that over an unspecified five-year period
Dane Street retained Dr. Friedlander 2,191 times, and Dr. Milos 9,143 times, to perform
28
1 Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing and to
2 show that Defendant engaged in a biased investigation into Plaintiff’s claim. (Id. at 6.)
3 Plaintiff claims the financial information he requests will show bias in the form of
4 “financial incentives to render opinions favorable to [Defendant].” (Id. at 9.) Plaintiff
5 contends that “where an expert physician or the third-party vendor who supplies that
6 physician, has a longstanding relationship with or receives substantial compensation from
7 an insurance carrier, and renders opinions in their favor, such evidence is important in
8 accessing their bias and credibility.” (Id. at 10–11.)
9 Defendant opposes the requests at issue, arguing that Plaintiff seeks irrelevant,
10 overbroad, and burdensome information concerning Dane Street that is not probative of
11 bias. (ECF No. 26 at 2, 7.) Defendant contends that the “total amount paid to Dane Street
12 and the total number of reviews performed is of no consequence in the abstract” and
13 Plaintiff’s arguments are “conclusory and speculative.” (Id. at 2–3.) Defendant states that
14 it has already produced the amount of compensation paid to Dane Street for the medical
15 reviews performed on Plaintiff’s claim and Plaintiff has deposed Dr. Friedlander and
16 Dr. Milos and will depose Dane Street’s Rule Federal Rule of Civil Procedure 30(b)(6)
17 witness. (Id. at 7.)
18 2. Good Faith and Fair Dealing Claim
19 Under California law, “[e]very contract imposes upon each party a duty of good faith
20 and fair dealing in its performance and its enforcement.” Carma Devs. (Cal.), Inc. v.
21 Marathon Dev. Cal., Inc., 2 Cal. 4th 342, 371 (1992) (citation omitted). “The covenant of
22 good faith and fair dealing has ‘particular application’ to insurers because they are
23 ‘invested with a discretionary power affecting the rights of another.’” Amadeo v. Principal
24 Mut. Life Ins. Co., 290 F.3d 1152, 1161 (9th Cir. 2002) (quoting Carma Devs., 2 Cal. 4th
25 at 372). Under California law, to establish a breach of the implied covenant of good faith
26 and fair dealing, “a plaintiff must show: (1) benefits due under the policy were withheld;
27 and (2) the reason for withholding benefits was unreasonable or without proper cause.”
28 Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 2001) (citing Love v. Fire Ins.
1 Exch., 221 Cal. App. 3d 1136, 1151 (1990)). The reasonableness of an insurer’s conduct
2 is ordinarily a question of fact. Amadeo, 290 F.3d at 1161.
3 “Because the key to a bad faith claim is whether denial of a claim was reasonable, a
4 bad faith claim should be dismissed on summary judgment if the defendant demonstrates
5 that there was ‘a genuine dispute as to coverage.’” Feldman v. Allstate Ins. Co., 322 F.3d
6 660, 669 (9th Cir. 2003) (quoting Love, 221 Cal. App. 3d at 1151). “Where there is a
7 genuine issue of an insurer’s liability under a policy, a court can conclude that an insurer’s
8 actions in denying the claim were not unreasonable as a matter of law.” Hangarter v.
9 Provident Life & Acc. Ins. Co., 373 F.3d 998, 1010 (9th Cir. 2004) (citing Chateau
10 Chamberay Homeowners Ass’n v. Associated Int’l Ins. Co., 90 Cal. App. 4th 335, 347
11 (2001)). Though the existence of a “genuine dispute” will generally immunize an insurer
12 from liability, a finding that an insurer’s investigation of a claim was biased may preclude
13 a finding that the insurer was engaged in a genuine dispute, even if the insurer advances
14 expert opinions concerning its conduct. Id. An insurer’s bias may be shown through the
15 following factors: “(1) the insurer misrepresents the nature of the investigatory
16 proceedings; (2) the insurer’s employees lie during depositions or to an insured; (3) the
17 insurer dishonestly selects experts; (4) the insurer’s experts were unreasonable; or (5) the
18 insurer fails to conduct a thorough investigation.” Pyramid Techs., Inc. v. Hartford Cas.
19 Ins. Co., 752 F.3d 807, 823 (9th Cir. 2014) (citing Guebara, 237 F.3d at 996).
20 3. Analysis
21 Where the outcome of a case may turn on the credibility of the parties’ experts and
22 when a court is presented with diametrically opposed expert reports, bias or prejudice of
23 the experts becomes highly relevant. See Coffou v. Life Ins. Co. of N. Am., No. CV-19-
24 03120-PHX-DLR, 2020 WL 1502104, at *2 (D. Ariz. Mar. 11, 2020).3 In the ERISA
25
26
27 3 See also Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 901 (9th Cir. 2016) (noting
that a “conventional approach[] to discrediting the testimony of retained experts whose
28
1 context, “several district courts in this circuit have held that the mere fact that a physician
2 receives compensation from a plan administrator for performing medical reviews is
3 insufficient by itself to be probative of bias.” Polnicky v. Liberty Life Assurance Co. of
4 Bos., No. C 13-1478 SI, 2014 WL 969973, at *2 (N.D. Cal. Mar. 5, 2014) (collecting
5 cases). Defendant cites several ERISA cases supporting this position. (ECF No. 26 at 7–
6 8.) However, this is not an ERISA case, where discovery is more limited. See Opeta v.
7 Nw. Airlines Pension Plan for Cont. Emps., 484 F.3d 1211, 1217 (9th Cir. 2007)
8 (explaining that on de novo review in an ERISA case extrinsic evidence may only be
9 considered in “limited circumstances”). Rather, the Court is applying the Rule 26 standard.
10 In cases where an expert or the third-party vendor who supplies that expert has a
11 long-standing relationship with, or receives substantial compensation income from
12 performing examinations for, a carrier or industry, and overwhelmingly renders opinions
13 in their favor, courts have determined that such evidence may be relevant under Rule 26 to
14 assessing that expert’s bias and credibility. See, e.g., Brzezinski v. Allstate Ins. Co., No.
15 11-CV-2373-CAB (DHB), 2012 WL 12869522, at *7 (S.D. Cal. Aug. 28, 2012) (finding
16 relevant discovery aimed at showing a biased relationship between an insurance company
17 and their forensic expert in a breach of the implied covenant of good faith and fair dealing
18 case); Rogers v. U.S. Navy, 223 F.R.D. 533, 535–36 (S.D. Cal. 2004) (finding discovery in
19 a Federal Tort Claims Act case aimed at showing bias of the government’s medical expert
20 to be relevant and proportional to the extent it was sufficient to allow the plaintiff to
21 effectively cross-examine the expert at trial regarding his opinions and the financial motive
22 or bias that may have influenced those opinions); Behler v. Hanlon, 199 F.R.D. 553, 557
23 (D. Md. 2001) (noting in a personal injury case that “the fact that an expert witness may
24
25
an expert in support of a party and the amount of compensation received”); Fed. R. Civ. P.
26
26(a)(2)(B)(v)–(vi) (requiring retained experts to provide a written report containing, inter
27 alia, “a list of all other cases in which, during the previous 4 years, the witness testified as
an expert at trial or by deposition,” and “a statement of the compensation to be paid for the
28
1 have a 20-year history of earning significant income testifying primarily as a witness for
2 defendants, and an ongoing economic relationship with certain insurance companies,
3 certainly fits within recognized examples of bias/prejudice impeachment, making such
4 facts relevant . . . and placing it squarely within the scope of discovery authorized by Rule
5 26[]” (internal citations omitted)).4
6 Here, the Court finds that the information sought by Plaintiff is relevant under
7 Rule 26. Although not necessarily sufficient by itself to suggest an inherent conflict or
8 bias, Plaintiff is entitled to the information, which he may seek to use alone or in
9 conjunction with additional information, to make an argument for bias.5 The Court further
10 finds the request, as modified by Plaintiff, to be proportional to the needs of the case. To
11 address any concerns regarding burden or privacy, Plaintiff has agreed to accept a
12 declaration or affidavit under oath specifying “the total number of times (in yearly or
13 monthly summaries) that [Defendant] hired Dane Street” and “the total dollar amount that
14 [Defendant] paid to Dane Street from 2016–2021 (in yearly or monthly summaries) for
15 services provided to [Defendant].” (ECF No. 23 at 6.) The existing Protective Order in
16 this case should allay any confidentiality or privacy concerns. (See ECF Nos. 23 at 6; 14.)
17 The Court further finds that the requested time frame is appropriate. See Silgan
18 Containers v. Nat’l Union Fire Ins., No. C 09-05971 RS LB, 2011 WL 1058861, at *6–7
19
20
21 4 cf. Demer, 835 F.3d at 901–04 (finding in the ERISA context the fact that the
defendant insurance company’s independent physician consultants have performed a
22
significant number of reviews for the defendant and have received significant
23 compensation for their services raises the inference of a conflict of interest); Nolan v. Heald
Coll., 551 F.3d 1148, 1152, 1154 (9th Cir. 2009) (stating in the ERISA context that
24
evidence an independent medical review company and its physicians received substantial
25 work and monies from the defendant insurance company in the years preceding and
including the plaintiff’s benefits denial at least “permitted an inference” that the company
26
and physicians were biased in favor of the insurer).
27 5 The Court notes that the information sought “need not be admissible in evidence to
be discoverable.” Fed. R. Civ. P. 26(b)(1). Defendant may argue against its admissibility
28
1 (N.D. Cal. Mar. 23, 2011) (finding five years of financial information about expert witness
2 services on behalf of insurance companies relevant to bias or prejudice to be appropriate);
3 Behler, 199 F.R.D. at 562 (finding five years of financial information attributable to
4 performing expert witness services on behalf of insurance companies to be appropriate).
5 Defendant argues that the requests are overbroad, and Plaintiff should be limited to only
6 2020 and 2021, but Defendant fails to establish that producing the summaries for the
7 greater time frame would be unduly burdensome. (See ECF No. 26 at 9.)
8 Accordingly, as set forth above, the Court GRANTS Plaintiff’s motion to compel
9 Defendant to provide further responses to Plaintiff’s Request for Production of Documents,
10 Set Three. (ECF No. 23.) Specifically, per the compromise offered by Plaintiff, Defendant
11 shall produce information indicating the total number of times (in yearly or monthly
12 summaries) that Defendant hired Dane Street and the total dollar amount that Defendant
13 paid to Dane Street from 2016–2021 (in yearly or monthly summaries) for services
14 provided to Defendant. No further production is required in response to these requests.
15 B. Motion to Compel Request for Production, Set Four (ECF No. 38)
16 1. Parties’ Arguments
17 Pursuant to the Protective Order in this case, Defendant produced the Statement of
18 Work, Dedicated Medical Officers Review Services (“SOW”), entered between Defendant
19 and Dane Street. (ECF No. 38 at 4.) Plaintiff contends that the documents he seeks are all
20 “referenced” in the SOW. (Id. at 2.) As Dr. Friedlander conducted a “Dedicated Medical
21 Officer” review of Plaintiff’s medical records for Dane Street, Plaintiff argues the
22 requested documents are “relevant to determine whether Dr. Friedlander’s review was
23 conducted in accordance with [the SOW],” and what role the potential bias of Defendant,
24 Dane Street, Dr. Friedlander, and Dr. Milos played in the allegedly wrongful determination
25 that Plaintiff’s disability was due to a sickness and not an accident. (Id.)
26 Plaintiff further argues that the documents he seeks, which he contends are
27 “embedded” in the SOW, would reveal whether the checks and balances on Defendant and
28 Dane Street were being followed. (Id. at 3.) Plaintiff notes that under Dane Street’s
1 contracts with Defendant, Dane Street is required to conduct background checks on the
2 medical reviewers it hires to make sure the physician reviewers have “no adverse action
3 taken by a regulatory agency or licensing authority.” (Id.) However, apparently
4 unbeknownst to Defendant, Dr. Friedlander had his medical license suspended by the New
5 Jersey State Board of Medical Examiners on November 24, 2014, “for a period of three (3)
6 years [beginning on December 11, 2014], the entirety to be stayed and served as a period
7 of probation.”6 (ECF 38-4 at 19; see also ECF Nos. 26 at 9; 26-2 at 28, 33–34; 38 at 9.)
8 Plaintiff further argues that it needs the requested documents, which include Dane
9 Street’s “Quality Assurance Tool,” “Quality Assurance Standards,” and “Monitoring and
10 Outcome Reports,” to learn how Defendant and Dane Street “conduct the business of
11 physician reviews and information analysis.” (ECF No. 38 at 3.) As opposed to a fishing
12 expedition, Plaintiff argues its requests are narrowly tailored to the issue of whether
13 Defendant conducted its claims investigation in bad faith. (Id.) Plaintiff contends the
14 documents “go to the bad faith of [Defendant] (by hiring Dane Street) in obtaining and
15 offering medical opinions that are biased or not supported by the facts, but written to
16 support a denial.” (Id.) Plaintiff argues that Defendant’s boilerplate objections are
17 improper and should be stricken. (Id. at 5–7.)
18 In its opposition, Defendant argues that Plaintiff seeks “irrelevant, overbroad and
19 non-proportional discovery pertaining to certain purported reports that are referenced in
20 the Pilot Services Agreement entered into with Dane Street[.]” (ECF No. 42 at 7.)7
21 Defendant contends that the requested documents are not attached to, nor part of, the Pilot
22 Services Agreement and argues that Plaintiff is speculating as to their relevance. (Id.)
23 Defendant further argues that “Plaintiff is trying to manufacture bias” and has not met his
24 burden of demonstrating how the requested documents are relevant to bias. (Id. at 7–8.)
25
26
27 6 Defendant referred Plaintiff’s file to Dr. Friedlander on or about May 14, 2021.
(ECF No. 38 at 8–9.)
28
1 Specifically, Defendant argues that Plaintiff has made no effort to describe the context of
2 these terms or documents and demonstrate how they are relevant to bias. (Id. at 8–9.)
3 Defendant notes that Plaintiff has already taken the depositions of Defendant’s
4 claims examiner and Rule 30(b)(6) witness on Plaintiff’s claim, as well as the depositions
5 of Dr. Lahey, Dr. Friedlander, and Dr. Milos. (Id. at 2–3, 10.) Defendant has further
6 provided the Dane Street invoices for the work performed on Plaintiff’s claim, as well as
7 Dane Street contract documents. (Id. at 3, 9.) Plaintiff has also noticed the deposition of
8 Dane Street’s Rule 30(b)(6) witness and received documents from Dane Street’s subpoena
9 production. (Id. at 9–10.)
10 2. Analysis
11 As set forth above, evidence of bias is relevant to Plaintiff’s breach of the implied
12 covenant of good faith and fair dealing claim. However, Plaintiff has not established the
13 relevance to his claim of the documents requested in RFP Nos. 58, 59, 67, 68, and 76.
14 Evidence must be “relevant to any party’s claim or defense” to fall within the scope of
15 permissible discovery. Fed. R. Civ. P. 26(b)(1). Plaintiff asks the Court to strike
16 Defendant’s “boilerplate” objections, which include relevance, but Plaintiff does not first
17 establish the relevance of Defendant’s “Quality Assurance Tool,” “Quality Assurance
18 Standards,” “monthly monitoring reports,” “issues and Outcome Reports,” and “UNUM
19 Companies Supplier Reports.” (See ECF No 38-3.)
20 “The party seeking to compel discovery has the burden of establishing relevance.”
21 Petconnect Rescue, Inc. v. Salinas, No. 20-CV-00527-LL-DEB, 2022 WL 1322854, at *2
22 (S.D. Cal. May 3, 2022) (citing Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal.
23 1995)). Only once the propounding party establishes that the requests at issue seek relevant
24 and proportional information, does the burden shift to the party resisting discovery to show
25 that discovery should not be allowed, and clarify, explain, and support its objections.
26 Cancino Castellar v. McAleenan, No. 17-cv-491-BAS-AHG, 2020 WL 1332485, at *4
27 (S.D. Cal. Mar. 23, 2020) (citation omitted).
28 ///
1 Here, Plaintiff does not indicate what type of information is included in the requested
2 documents and the relevance of such information. Plaintiff simply argues that the
3 documents are relevant because they are “all referenced in the [SOW]” and, based on
4 Plaintiff’s current knowledge, address “how [Defendant] and Dane Street conduct the
5 business of physician reviews and information analysis.” (ECF No. 38 at 2–3.) Plaintiff
6 does not provide the context of these items in the SOW, nor does Plaintiff explain how that
7 context demonstrates the relevance of the documents to determining whether Dane Street
8 was biased in its medical evaluations. For example, Defendant states that the “issues and
9 outcome report” refers to “completed inventory.” (ECF No. 42 at 9.) The parties
10 purportedly engaged in meet and confer efforts during which Plaintiff learned this
11 information, but Plaintiff does not address why completed inventory reports are relevant to
12 establishing bias. Moreover, Defendant states that the term “Quality Assurance Standards”
13 is not defined in the Pilot Services Agreement and the term “monthly monitoring report”8
14 does not even appear. (Id.)
15 Plaintiff further argues that the information is relevant to determining whether
16 Dr. Friedlander’s review was conducted in accordance with the SOW. (ECF No. 38 at 2.)
17 However, Plaintiff does not adequately explain how the requested documents set a standard
18 or would show whether Dr. Friedlander complied with such standards. According to
19 Defendant, the requested documents are not attached to, nor part of, the SOW, which would
20
21
22
23
8 In his motion, Plaintiff states that the term “monitoring reports” is identified and/or
24
used in the SOW. (ECF No. 38 at 6.) Defendant states that the terms “monthly monitoring
25 report,” “monthly monitoring,” and “monitoring report” do not appear in the Pilot Services
Agreement, including the SOW. (ECF No. 42 at 9.) The Court cannot resolve this dispute
26
as no party submitted a copy of the SOW. However, as noted above, it is Plaintiff’s burden
27 to establish relevance. See Petconnect Rescue, Inc., 2022 WL 1322854, at *2. Despite
having the burden of proof, Plaintiff opted against providing the SOW to the Court or
28
1 || suggest that they do not contain standards Dr. Friedlander was required to meet. (ECF No.
2 ||42 at 7.)°
3 In sum, Plaintiff has the burden of proof as to relevance and ultimately failed to
4 || provide the Court with the information and arguments necessary to sustain that burden of
5 ||proof as to the requested documents. For the foregoing reasons, the Court DENIES
6 || Plaintiff's motion to compel Defendant to provide further responses to Plaintiff’s Request
7 || for Production of Documents, Set Four. (ECF No. 38.)
8 CONCLUSION
9 For the foregoing reasons, IT IS HEREBY ORDERED:
10 1. Plaintiff's motion to compel Defendant to provide further responses to
11 || Plaintiff's Request for Production of Documents, Set Three (ECF No. 23) is GRANTED,
12 set forth above. Defendant shall produce information indicating the total number of
13 |/times (in yearly or monthly summaries) that Defendant hired Dane Street and the total
14 dollar amount that Defendant paid to Dane Street from 2016-2021 (in yearly or monthly
15 ||summaries) for services provided to Defendant within seven (7) days of the date of this
16 ||Order. Defendant shall produce the information subject to the Protective Order (ECF No.
17 || 14) in this case.
18 2. Plaintiff's motion to compel Defendant to provide further responses to
19 || Plaintiff's Request for Production of Documents, Set Four (ECF No. 38) is DENIED.
20 Dated: June 15, 2023 -
21 Balladt
n. Jill L. Burkhardt
22 ited States Magistrate Judge
23
24
||
26 |Io In his reply, Plaintiff provides little clarity. (ECF No. 44.) Plaintiff simply argues
27 |\that “claims manuals, standards and guidelines” are relevant in bad faith disputes and
28 asserts without further explanation or analysis that the requested documents set the
standard that Dane Street and Dr. Friedlander were required to follow. (/d. at 2-3.)
17