The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL F ADOUE CIVIL ACTION
VERSUS NO: 19-10500
PAUL REVERE LIFE INSURANCE SECTION: “T” (4)
COMPANY
ORDER
Before the Court is a Motion to Compel (R. Doc. 53) filed by the Plaintiff seeking
Defendant Paul Revere Life Insurance Company (“Paul Revere”) to more fully and completely
answer Plaintiff’s interrogatories and to produce the documents in response to Plaintiff’s requests
for production. The motion is opposed. R. Doc. 59. The motion was heard by oral argument via
videoconference on July 16, 2020. R. Doc. 65.
I. Background
On May 16, 2020, Plaintiff Michael F. Adoue, a former trial attorney, filed this claim,
pursuant to the court’s diversity jurisdiction, for disability benefits under an individual insurance
policy alleging UNUM Life Insurance Company of America (“UNUM”) failed to properly adjust
and pay his claim. R. Doc. 1. On August 20, 2020, Plaintiff amended his complaint to add
Defendant Paul Revere. R. Doc. 9. Plaintiff alleges that overwhelming evidence supports a finding
that he was disabled under the policy terms. Id. Plaintiff maintains that he was wrongfully denied
his disability insurance benefits where he suffers from debilitating back pain, severe depression
and anxiety, and congestive heart failure with left bundle-branch block, and mitral valve prolapse.
R. Doc. 53.
On May 8, 2020, Plaintiff originally filed the instant motion to compel seeking, among
other things, information pertaining to bias. R. Doc. 32. At the time, the discovery requests and
interrogatories remained outstanding. Id. In response, Defendant Paul Revere produced some
information. Notwithstanding, where the motion was originally set for submission for May 27,
2020, after the applicable May 8, 2020 discovery deadline, the Court denied the motion as
untimely. R. Doc. 45.
On June 25, 2020, the District Judge presiding over this case reopened discovery and
extended the applicable discovery period until July 17, 2020. R. Doc. 49. As such, Plaintiff reurged
the instant motion seeking information as to employees’ financial incentives to deny claims,
compensation methods, performance evaluations, and complaints and investigations instituted
against Paul Revere. R. Doc. 53.
Defendant Paul Revere maintains this information is not relevant where Plaintiff failed to
allege that Paul Revere engaged in a pattern or practice of promptly ad fairly adjusting claims or
that its employees had a financial incentive to deny claims. R. Doc. 59. The Defendant also
contends while bias may be important to Employee Retirement Income Security Act of 1974
(“ERISA”) claims, this is a straightforward contract dispute. Id. As such, Defendant seeks an order
denying the Plaintiff’s motion. Id.
II. Standard of Review
Discovery of documents, electronically stored information, and things is governed by
Federal Rule of Civil Procedure (“Rule”) 34. Rule 34 allows a party to request the production of
“any designated documents or electronically stored information” or “any tangible things.” Id.
Similarly, Rule 33 allows a party to serve another party written interrogatories which “must, to the
extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ.
P. 33(b)(3). Both Rule 33 and 34 allow a party to ask interrogatories and request production to the
extent of Rule 26(b). Fed. R. Civ. P. 33(a)(2), 34(a).
Rule 26(b)(1) provides that parties may obtain discovery regarding relevant information to
any claim or defense as long as it is nonprivileged. Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1) specifies
that “[i]nformation within the scope of discovery need not be admissible in evidence to be
discovered.” Id. Rule 26(b)(1) also specifies that discovery must be “proportional to the needs of
the case, considering the important of the 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.” Id.
Rule 37 provides that “[a] party seeking discovery may move for an order compelling an
answer, designation, production, or inspection. This motion may be made if: . . . (iii) a party fails
to answer an interrogatory submitted under Rule 33, or (iv) a party fails to respond that inspection
will be permitted—or fails to permit inspection—as requested under Rule 34.” Fed. R. Civ. P.
37(a)(3)(B). An “evasive or incomplete” answer or production is treated the same as a complete
failure to answer or produce. Fed. R. Civ. P. 37(a)(4).
III. Analysis
A. Interrogatory No. 3
Interrogatory No. 3 seeks the identification of the rate of pay, bonuses paid, awards, or
other indices of recognition for job performance for persons identified as involved in the decision
to terminate Plaintiff’s disability benefits. R. Doc. 53-2, p. 4. The Defendant objects on the grounds
as vague, overbroad, and disproportional to the needs of the case. R. Doc. 53-2, p. 5. The Defendant
also objects to the production of such information on the grounds that it is confidential, proprietary,
and violates the rights of third parties as protected by Massachusetts Privacy Statute. Id. (citing
Mass. Gen. L. c. 214, sec. IB). Notwithstanding, Defendant Paul Revere provided a copy of the
2017 to 2019 Performance Plan Templates, Annual Incentive Plans, and a document entitled “Total
Compensation Frequently Asked Questions.” R. Doc. 53-1, p. 3.
Plaintiff contends this production is not sufficient where Paul Revere did not produce any
of the specific amounts of the compensation and bonuses given to their personnel that were
involved in Plaintiff’s claim. Id. Plaintiff further contends this information is relevant to whether
the people involved in Adoue’s claim had a financial incentive to find that Adoue was not disabled.
Id. Plaintiff has since narrowed the scope of information sought to just the past five years from the
date of its decision finally denying Adoue’s claim. Id.
Defendant contends, in addition to the aforementioned documents, it also provided the
performance plan templates for People Managers, which would include the Director over the
Disability Benefit Specialist and the Director over the Appeals Specialist. R. Doc. 59, p. 5. The
Defendant further contends these documents set forth the job goals for these individuals and the
criteria on which these individuals’ job performance is evaluated, and evidence that pay, bonuses,
and job performance evaluations are not related to denying claims. Id. As such, Defendant
contends, in this situation, production of individual compensation records is not warranted. R. Doc.
59, 6. The Defendant, therefore, maintains its position the production satisfies Plaintiff’s request.
Id.
As Plaintiff points out, many courts have found “salary and bonus incentives are factors
that could affect claims determinations and are therefore relevant.” Raab v. Unum Grp., No. 2:10-
CV-186, 2011 WL 12614882, at *1-2 (S.D. Ohio June 6, 2011) (internal quotations omitted)
(affirming Magistrate Judge’s decision that thirteen individuals’ salary be produced).
Notwithstanding, those cases have noted the relevance in connection with Plaintiff’s bad faith
claim. See Shah v. Metro. Life Ins. Co., No. 2:16-CV-1124, 2018 WL 2309595, at *10 (S.D. Ohio
May 22, 2018) (granting motion to compel to extent bonus plans for the decision makers show an
interest in the outcome of a decision adverse to plaintiff); Nye v. Hartford Acc. & Indem. Co., No.
CIV. 12-5028-JLV, 2013 WL 3107492, at *12 (D.S.D. June 18, 2013) (“qualifying for a monetary
bonus, or other employee incentive, because of the manner in which defendant’s employees
respond to a claim, is certainly relevant to a bad faith claim.”).
In addition, while this information is sometimes compelled in ERISA cases by courts in
this circuit, those courts have specifically noted its relevance to the insurer’s conflict of interest in
both administering and insuring the plan. Pylant v. Hartford Life & Accident Ins. Co., No. 3-05-
CV-0379-G ECF, 2006 WL 8437370, at *2 (N.D. Tex. Jan. 20, 2006) (discussing deference owed
by court to administrator’s decision under sliding-scale analysis and abuse of discretion standard
in ERISA cases); cf. Par. v. Aetna Life Ins. Co., No. CIV.A. 12-2315, 2013 WL 3974534, at *4
(Knowles, M.J.) (E.D. La. Aug. 2, 2013) (discussing possible existence and extent of conflict of
interest in dual role of handling disability claims “with regard to any information sought regarding
the compensation scheme, bonus structures and other pay incentives” as such, the court ordered
“production only of company-wide policies [but] not of individual compensation records.”) (citing
Crider v. Life Ins. Co. of N. Am., No. CIV.A. 3:07CV331-H, 2008 WL 239659, at *6 (W.D. Ky.
Jan. 29, 2008) (in permitting discovery with respect to company-wide compensation, bonus
performance evaluation standards, but not with respect to individual compensation records the
court noted “[s]uch information could reveal the extent to which Defendant’s ‘own financial
bottom line rather than the claimant’s medical conditions’ influenced employees in the decisions
they reached” and, as such, “[t]his discovery is relevant to bias in the decision-making process.”)).
In this case, Plaintiff did not make a claim pursuant to ERISA (See R. Doc. 9) and has
dismissed his claims for emotional distress and all other extra-contractual damages which includes
any punitive damages pursuant to a claim of bad faith (See R. Doc. 45). In Raab, Nye, and Pylant
each of those courts determined the individual’s salary and compensation was confidential
information to be protected via a protective order. Those cases, however, involved ERISA,
punitive damages, and/or bad faith breach of contract. Where, as in here, those elements were
never alleged or voluntarily dismissed, the Court struggles to see the relevancy of individual
compensation records. This is particularly so when the compensation plans and employee
performance templates documents produce show no indicia that employees are rewarded for
denying claims. As such, the Court denies Plaintiff’s motion with respect to Interrogatory No. 3.
B. Interrogatory No. 6
Interrogatory No. 6 seeks the total number of reviews performed per year by the reviewing
physicians Paul Revere relied on in denying this claim and the gross monetary compensation paid
to such medical professionals (or paid by Paul Revere through an intermediary company, such as
MES Solutions, RRS, PDA, Medical Consultant Network, etc.) for those reviews. R. Doc. 53-2,
p. 10.
Defendant objects on the grounds as vague, over broad, and disproportional to the needs of
the case. Id. Defendant also objects to the production of such information on the grounds that it is
confidential, proprietary, and violates the rights of third parties as protested by Massachusetts
Privacy Statute. Id. (citing Mass. Gen. L. c. 214, sec. IB). Defendant also objects on the grounds
the information is not relevant where the individuals are not vested with the authority to terminate
Plaintiff's benefits, and therefore, the outcomes of the reviews performed is not evidence of Paul
Revere’s bias. Id. (citing Abromitis v. Cont'l Cas. Co./CNA Ins. Companies, 114 F. App'x 57, 61
(4th Cir. 2004)). Notwithstanding, in response, Paul Revere produced its Annual Incentive Plan
and Total Compensation FAQ, Stock Incentive Plan in effect between 2017 and 2018, and its
Long-Term Incentive Deferred Cash FAQs in effect between 2017 and 2018. R. Doc. 53-1, p. 4.
Plaintiff contends that this answer is deficient where Paul Revere did not provide the
amount paid to the medical professionals involved in Adoue’s claim. Id. Plaintiff further contends
such information is relevant to whether they had a financial incentive to deny benefits. Id.
Defendant, in opposition, claims the documents provide evidence that compensation and
bonuses to medical professionals employed by Unum are not related to the approval or denial of
claims. R. Doc. 59, p. 8. As such, Defendant maintains the actual amounts paid to Unum
employees, including the medical professionals, is not relevant and is not discoverable; thus,
further production is not warranted. Id.
At the hearing, Plaintiff withdrew his motion with respect to Interrogatory No. 6. As such,
the Court denies Plaintiff’s motion with regard to Interrogatory No. 6 as moot and for the reasons
stated above.
C. Interrogatories Nos. 15, 16, and 17
Interrogatories Nos. 15, 16, and 17 seek information to explain the method of compensation
for all medical professionals or vocational consultants who were asked to give an opinion about
the Plaintiff’s health or his occupation, whether the medical professionals or vocational consultants
who were asked to give an opinion about Plaintiff’s health or his occupation receive company
stock as part of their compensation and/or if such professionals own stock in either Paul Revere or
Unum, and the basis upon which bonuses are awarded. R. Doc. 53-2, p. 6-17.
Subject to the aforementioned objections, Paul Revere responded that its medical, clinical
and vocational consultants who are full time employees are salaried and its physician contractors,
such as Drs. Bress and DiDonna, are paid an hourly rate. Paul Revere also contends full time
employees, such as Dr. Norris, are paid fixed salaries and are eligible to receive bonuses, but
compensation is not tied to or based upon the outcomes of medical reviews by physician employees
and contractors such as Dr. Bress are not eligible to receive bonuses. Id.
Plaintiff contends there is no violation of privacy by Paul Revere revealing whether its
consultants receive company stock as part of their compensation program. R. Doc. 53-1, p. 5.
Plaintiff further contends this information is relevant to whether its consultants had a financial
incentive to provide an opinion that supported the denial of benefits. Id. As such, Plaintiff
maintains Paul Revere must explain if the medical professionals, claims personnel, vocational
consultants, and managers involved in Adoue’s claim receive company stock as part of their
compensation. R. Doc. 53-1, p. 6. In addition, Plaintiff contends Defendant’s response to
Interrogatory No. 17 is deficient where it fails to explain the basis upon which bonuses are
awarded. R. Doc. 53-1, p. 5.
Defendant contends in a standard contract case, as opposed to an ERISA case, evidence of
bias is in no way relevant to whether Adoue’s claim decision is right or wrong. R. Doc. 59, p. 8-9.
Defendant again reiterate amount of a particular employee’s compensation is meaningless unless
there is some evidence that it is tied to claim denials. R. Doc. 59, p. 9. As such, Defendant contends
individual compensation records are not discoverable and evidence of company policies and
compensation schemes satisfies the request. Id.
In addition, Defendant contends to the extent Plaintiff seeks stock compensation for all
employees involved in this claim, to include claims personnel and managers, that it has no
obligation to answer a question it was no originally asked. Id. Defendant explains Interrogatories
Nos. 15, 16, and 17 are limited to compensation of “medical professionals or vocational
consultants”. Id. As such, the Defendant maintains that the Plaintiff cannot expand the scope of its
discovery requests through a motion to compel or memorandum in support. Id.
The Court as an initial matter notes Interrogatories Nos. 15, 16, and 17 only refer to medical
and vocational experts. R. Doc. 53-2, p. 17-18. The Plaintiff did not originally seek information as
to all of its employees involved in this claim, to include claims personnel and managers, and is not
permitted to expand the scope of his discovery request in his motion to compel. As such, to the
extent the Plaintiff now seeks company stock compensation with regard claims personnel and
managers, the Defendant’s objection is sustained.
Specifically, considering Interrogatory No. 15, Plaintiff seeks an explanation of “the
method of compensation for all medical professionals or vocational consultants who were asked
to give an opinion about the Plaintiff’s health or his occupation.” R. Doc. 53-2, p. 16. Defendant
Paul Revere explained in response that that its “medical, clinical and vocational consultants who
are full time employees are salaried” and its physician contractors are paid an hourly rate. Id.
Defendant also explicitly indicates that Dr. Bress and Dr. DiDonna were paid on an hourly rate.
Id. The Court finds that this adequately answers Plaintiff’s interrogatory seeking the methods of
compensation and denies Plaintiff’s motion to the extent it seeks to compel any further answer in
response to Interrogatory No. 15.
Next, to the extent Plaintiff seeks the actual stock compensation amounts for medical and
vocational experts, the Court reiterates, while financial incentive may be important in ERISA cases
that allege bad faith and seek punitive damages, here the sole question for the fact-finder is
contractual in nature. While the Plaintiff may be entitled to know broadly how Paul Revere
compensates its medical and vocational experts through company stocks, courts in the Fifth Circuit
do not permit for the discovery of individual’s compensation without some shred of evidence of
wrongdoing or allegations to the same.
Notwithstanding, Interrogatory No. 16 only seeks an explanation of “whether the medical
professionals or vocational consultants who were asked to give an opinion about Plaintiff’s health
or his occupation receive company stock as part of their compensation and/or if such professionals
own stock in either Paul Revere or Unum.” R. Doc. 53-2, p. 17. As such, the Court is of the opinion
that this request does not seek an individual’s specific compensation amount. To the contrary, this
only seeks a simple yes or no answer as to whether the medical professionals or vocational
consultants who were involved in the decision to deny disability benefits under Plaintiff’s
insurance policy actually participated in the stock option regardless of their return.
The Court, here, is of the opinion that this is the sort of broad knowledge that Plaintiff is
entitled to seek where is does not require inquiry into any one person’s actual finances. The answer
provided in response, discussing a person’s eligibility to participate, simply does not satisfy this
request where the request is more centered around actual participation in the stock compensation.
The Court, therefore, finds for each medical profession or vocational consultant who was asked to
give an opinion about the Plaintiff’s health or his occupation that the Defendant provide a yes or
no answer indicating whether that person exercised their right to procure company stock as
compensation. As such, the Court grants Plaintiff’s motion with respect to Interrogatory No. 16.
In addition, the Court finds that Defendant’s response to Interrogatory No. 17 is not
satisfactory. The Plaintiff asks the Defendant to explain the basis upon which bonuses are awarded.
In response, the Defendant discusses who is eligible for bonuses and states bonuses are unrelated
to denial of claims benefits. R. Doc. 53-2, p. 18. This answer fails to include any qualitative factors
Paul Revere uses in deciding whether to award bonuses. Courts have held this information can
evidence are relevant to the decision-making process. See Aetna Life Ins., 2013 WL 3974534, at
*4 (permitting discovery of information sought regarding the compensation scheme, bonus
structures and other pay incentives on company-wide basis and not individual level) (citing Crider,
2008 WL 239659, at *6 (permitting of company-wide compensation and bonus performance
evaluation standards). As such, Plaintiff is entitled to know how Paul Revere, on a company-wide
basis, decides to award bonuses. As such, the Court grants Plaintiff’s request with respect to
Interrogatory No. 17.
D. Request for Production No. 12
Request for Production No. 12 seeks a copy of the monthly, interim, and annual
performance evaluations for the years 2010 to present for the individuals who were involved in
Plaintiff’s claim, including without limitation claims personnel, medical reviewers, or vocational
consultants. R. Doc. 53-2, p. 28.
The Defendant again objects on the grounds as vague, over broad, and disproportional to
the needs of the case. Id. The Defendant also objects to the production of such information on the
grounds that it is confidential, proprietary, and violates the rights of third parties as protested by
Massachusetts Privacy Statute. Id. (citing Mass. Gen. L. c. 214, sec. IB).
Plaintiff maintains this information is relevant as to whether the personnel who provided
opinions on Plaintiff’s claims have financial incentive to deny claims and whether they are
qualified and competent in making decisions that are extremely important to claimants. R. Doc.
53-1, p. 6-7. Plaintiff further contends performance evaluation documents may reflect upon the
Defendant’s state of mind with respect to claim handling behavior as evidenced through the way
they rate and comment upon employee performance. R. Doc. 53-1, p. 7. As such, Plaintiff
maintains those documents can establish that claim personnel are improperly motivated by the
promise of rewards for meeting goals, or by fear of losing out financially if their annual claim
payments exceed those amounts authorized. Id. In addition, Plaintiff contends just because Paul
Revere’s compensation plan does not expressly state that its employees would be paid more or
promoted if they deny claims that does not mean that pressure to deny claims is not applied in
other ways.1 R. Doc. 53-1, p. 8.
The Defendant reiterates that because the information thus far produced clearly establishes
that there is no financial incentive for employees to deny claims, the interest in individual
employees’ privacy clearly outweighs the interest in the discovery of private information that is
unrelated to any issue in this case. R. Doc. 59, 9-10. As such, Paul Revere contends that its
responses are sufficient. R. Doc. 59, p. 10.
This Court has before found performance evaluations of those employees who reviewed
plaintiff's claim are discoverable in ERISA cases. See, e.g., Parish, 2013 WL 3974534, at *4;
Wittmann v. Unum Life Ins. Co. of Am., No. CV 17-9501, 2018 WL 1912163, at *3 (Wilkinson,
M.J.) (E.D. La. Apr. 23, 2018), on reconsideration, No. CV 17-9501, 2018 WL 2970873 (E.D. La.
June 13, 2018) (ordering production of redacted performance evaluations where “[t]he information
sought is relevant to the existence and extent of defendant’s conflict of interest.”).
Notwithstanding, the same conflict of interest that permeates ERISA cases, is not as
poignant here, and, in this case, Plaintiff has not presented a specific and compelling reason to
allow discovery of employee personnel files to include performance evaluations. See, e.g.,
Rinehart v. Life Ins. Co. of N. Am., No. C08-05486-RBL, 2009 WL 2240286, at *2-3 (W.D. Wash.
July 27, 2009) (noting the employee may seek the larger policy or practice, or how it trains and
1 Plaintiff explains, that sometimes a performance evaluation may reveal things such as targets on closures,
the quality of one’s work, whether personnel are truly walled off from company finances, etc. The Court will discuss
the proper standard to evaluate relevancy in response to his Request for Production 16 and 19.
provides incentives for its employees, or general information regarding the criteria and process
used to evaluate employee performance). The Court, therefore, finds this information is not
relevant. As such, the Court denies Plaintiff’s motion with regard to Request for Production No.
12.
E. Requests for Production Nos. 16 and 19
Finally, Request for Production No. 16 seeks documents relating to any reports or
investigations of claims handling practices by any Insurance Commissioner or regulatory authority
within the last ten (10) years. R. Doc. 53-2, p. 31. Defendant again objects on the grounds as vague,
overbroad, and disproportionate to the needs of the case. Id. Defendant also object to the extent it
seeks information protected by third party privileges who have a legitimate expectation of privacy
in their personal information. Id.
Request for Production No. 19 seeks, for the past ten years, each document identifying
each complaint filed against Defendant with an administrative agency (including but not limited
to a state insurance regulator) by an insured that was denied short- or long-term disability benefits.
R. Doc. 53-2, p. 33. Plaintiff clarified the names of the insureds can be redacted in order to protect
their privacy. Id. Defendant again objects on the grounds as vague, over broad, and disproportional
to the needs of the case. Id. Defendant also object to the extent it seeks information protected by
third party privileges who have a legitimate expectation of privacy in their personal information.
Id.
Plaintiff contends that the information sought is directly relevant to whether Paul Revere
has a history of biased claims administration and/or claims practices. R. Doc. 53-1, p. 9-10, 14. In
addition, Plaintiff contends Paul Revere fails to explain how the information he seeks is
confidential. R. Doc. 53-1, p. 9. The Plaintiff explains it is well known that Paul Revere and its
parent, UNUM, have been involved in regulatory settlement agreements, in which they were
reprimanded for things such as excessive reliance of in-house physicians. R. Doc. 53-1, p. 10.
Because, in Adoue’s case, Paul Revere relied exclusively on opinions of its in-house physicians to
deny the claim, which was a point of concern in at least one of its regulatory settlement agreements,
Plaintiff maintains this information is highly relevant. Id.
Defendant, in opposition, contends that there is no substantive limitation on Plaintiff’s
request regarding the nature of the complaint, the type of policy at issue or the disposition of the
complaint. R. Doc. 59, p. 10. The Defendant points the Court’s attention to the fact that there are
no allegations in the complaint that defendant engaged in a pattern or practice of wrongly denying
claims. Id. Louisiana does not authorize claims for extra-contractual, punitive or exemplary
damages, and Plaintiff’s only available penalty is limited to an amount equal to the amount of past
benefits are due. R. Doc. 59, p. 15. Defendant maintains bad faith is not relevant to the case where
the only applicable statute only makes mention to whether Paul Revere had just and reasonable
grounds to deny the claim. Id.
The Plaintiff, in response, directed the Court’s attention to Wakkinen and Singleton as cases
in which UNUM was involved in regulatory settlement agreements, for which they were
reprimanded for things such as excessive reliance on in-house physicians. See Wakkinen v. UNUM
Life Ins. Co. of Am., 531 F.3d 575, 582 (8th Cir. 2008); Singleton v. Hartford Life & Accident Ins.
Co., No. 4:08-CV-00361-WRW, 2008 WL 3978680, at *1 n. 12 (E.D. Ark. July 29, 2008).
Since that time, however, courts have determined that UNUM’s alleged biased claims
history from over a decade ago is less relevant. In Truitt, the Fifth Circuit recognized that UNUM
adopted a new claims-handling practice and it would no longer “assume UNUM is biased every
time it denies a claim merely because it has a parsimonious claims-granting history.” Truitt v.
Unum Life Ins. Co. of Am., 729 F.3d 497, 514 (5th Cir. 2013) (noting district court’s improper
emphasis UNUM’s structural conflict).
Recently, this Court denied Plaintiff’s request for information about previously
investigated and adjusted claims. Wittmann, 2018 WL 1912163, at *5. In coming to that decision,
the Court relied heavily on Caldwell v. UNUM, which considered the minimal relevance of
statistical evidence of systematic bias. Id. (noting the collection of this type of information is a
significant burden on the defendant) (citing Caldwell v. UNUM Life Ins. Co. of Am., No. 16-CV-
236-S, 2017 WL 5591711, at *1 (D. Wyo. May 3, 2017)).
As an initial matter, the Court disagrees with Plaintiff’s contention that Wittmann and
Caldwell are inapposite where he does not seek statistical information but rather a list of conduct
examinations and regulatory settlement agreements. Simply because the Plaintiff’s requests do not
specifically seek a batting average or statistical type discovery, do not render them relevant. In
fact, Plaintiff’s requests in Wittmann mirror the requests Plaintiff seeks the Court compel today.2
See Wittmann, 2:17-cv-09501, R. Doc. 16-4, p. 8-9, 12.
2 The Court takes special note of the fact that while the Caldwell court discussed the minimal value of
statically data, in Wittmann the Plaintiff’s request did not seek such. Still, this Court denied Plaintiff’s motion to
compel seeking investigation and disciplinary documents regardless of whether Defendant first had to create the
statistics. See Wittmann, 2:17-cv-09501, R. Doc. 16-4, p. 8-9, 12.
INTERROGATORY NO. 13:
Have you been investigated by any insurance commission or disciplinary or regulatory body in the last ten years
regarding any plan, including but not limited to those for which you have acted as benefits administrator and which
you have also funded, in whole or in part, as underwriter?
INTERROGATORY NO. 14:
Has any disciplinary action been imposed on you by any insurance commission or disciplinary or regulatory body,
for any infraction—including but not limited to a violation of any state's insurance code or a finding by a federal
court that you abused your discretion in the review of a claim—in the last ten years regarding any plan, including
but not limited to for which you have acted as benefits administrator and which you have also funded, in whole or in
part, as underwriter?
REQUEST FOR PRODUCTION NO. 10:
Produce any notice of investigation, investigative findings or other documentation pertaining to the investigations
identified in your response to Interrogatory No. 13.
Moreover, while Plaintiff contends this sort of information is regularly produced to show
a pattern of misconduct, none of those cases cited by the Plaintiff neither involve UNUM or Paul
Revere nor consider a claim that in which the plaintiff does not seek extracontractual damages. In
addition, in those cases cited by Plaintiff, the courts found the regulatory complaint and settlement
history more relevant on the basis of the plaintiff’s allegations of fraud, bad faith, and/or claims
pursuant to RICO which involved an extensive pattern of racketeering activity in the handling of
disability claims. See, e.g., Rosen v. Provident Life & Accident Ins. Co., 308 F.R.D. 670, 681 (N.D.
Ala. 2015), as amended (July 10, 2015) (discussing relevance to RICO claims); Eberlein v.
Provident Life & Acc. Ins. Co., No. 06-CV-02454-PAB-MJW, 2009 WL 353516 (D. Colo. Feb.
12, 2009); Beattie v. Provident Life & Accident Ins. Co., No. 04CV896-W(LSP), 2005 WL
8166041 (S.D. Cal. Sept. 23, 2005); Cunningham v. Standard Fire Ins. Co., No. CIVA
07CV02538REBKLM, 2008 WL 2902621, at *1 (D. Colo. July 24, 2008). The facts presented in
those cases are simply too dissimilar for the Court to give those decisions persuasive value in this
instant matter.
In addition, all of the cases were decided prior 2015 and before the 2015 Amendment to
Federal Rule of Civil Procedure 26. See, e.g., Eberlein, 2009 WL 353516, at *1 (noting “this
discovery may lead to admissible evidence on Plaintiff's bad faith claim, punitive damages claim,
and Colorado Consumer Protection Act claim”). In 2015, the Federal Rule of Civil Procedure 26
was amended to reflect “[i]nformation is discoverable under revised Rule 26(b)(1) if it is relevant
to any party’s claim or defense . . .” 2015 Amendment, Comment to Fed. R. Civ. Pro. 26. This
REQUEST FOR PRODUCTION NO. 11:
Produce any documentation pertaining to the disciplinary actions identified in your response to Interrogatory No. 14.
Id.
current standard of discoverability is more limited to direct relevance as opposed to the previous
version of Rule 26 that stipulated information is relevant if it is “likely to lead to the discovery of
relevant evidence.” Rivera v. Robinson, No. CV 18-14005, 2019 WL 6134190, at *4 (Roby, M.J.)
(E.D. La. Nov. 19, 2019). Here, the Plaintiff can cite to no case, and the Court can find none, that
supports his position that regulatory settlements and target market conduct examinations are
directly relevant.
Moreover, none of these cases cited by Plaintiff come from within the Fifth Circuit. In fact,
in providing the Plaintiff the chance to supplement his position and provide this Court with
authority from this circuit that supports Plaintiff’s contention that regulatory settlement and target
market conduct examination documents are discoverable (See R. Doc. 65), Plaintiff admitted that
he is “unaware of any cases that discuss specifically the relevancy of target market conduct
examinations and regulatory settlement agreements.” As such, the Court affords the cases cited by
Plaintiff little persuasive value in comparison to Wittmann, which is directly on point and from
this district.
Finally, the Court notes the Wittmann court did not reach its decision based on solely on
relevance, but on grounds of proportionality and burden to the insurance companies. Regulatory
settlement agreements and market conduct examinations are a matter of public record and
accessible to the Plaintiff via the internet and regulatory agencies webpages.3 Plaintiff admitted
that even the reports that he has were not produced as a result of discovery propounded in this case
or others, but as a result of networking with other attorneys who practice in this area of law and
through his own research. In addition, Plaintiff provides no evidence that a market conduct
3 The Court notes that certain documents are retrievable, for example, via the United States Securities and
Exchange Commission’s and the State of Tennessee’s Government website.
examination was conducted during the timeframe in which Paul Revere was considering his claim
or by an authority, e.g., the State of Louisiana, whose input would be salient in this diversity case,
which could bolster the relevancy of these documents in this matter.’ As such, the Court finds the
burden of gathering these publicly available documents outweighs these documents minimal
relevance in this case. The Court, therefore, denies Plaintiff's motion with respect to Requests for
Production Nos. 16 and 19.
IV. Conclusion
Accordingly,
IT IS ORDERED that Plaintiff's Motion to Compel (R. Doc. 53) be GRANTED IN
PART and DENIED IN PART.
IT IS FURTHER ORDERED that the motion be GRANTED with respect to
Interrogatory Nos. 16 and 17.
IT IS FURTHER ORDERED that the motion be DENIED with respect to Interrogatory
Nos. 3, 6, and 15, as well as Requests for Production Nos. 12, 16 and 19.
New Orleans, Louisiana, this 19th day of August 2020.
\ (Gp (FS i \)
Ss”
KAREN WELLS RO & )
CHIEF UNITED STATES MAGISTRATE JUDGE
4 The Court, here, also notes that in its supplemental brief Defendant Paul Revere stipulated that it is not
aware of any market conduct examinations conducted by the State Louisiana within the last ten (10) years.
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