“Generally, consideration of evidence outside of the administrative record is inappropriate when a coverage determination is reviewed for abuse of discretion.”
How later courts described this case
- “Generally, consideration of evidence outside of the administrative record is inappropriate when a coverage determination is reviewed for abuse of discretion.”
- explaining that the Rules “require[] the lawyer to pause and consider the reasonableness of his request, response, or objection”
- observing that “[g]amesmanship” in discovery “is not allowed”
- observing that “[d]istrict courts are afforded broad discretion with respect to discovery”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JEFFREY TAEKMAN, M.D., )
)
Plaintiff, )
)
v. ) 1:22cv605
)
UNUM LIFE INSURANCE COMPANY )
OF AMERICA, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
This case comes before the Court on “Defendant’s Motion for
Protective Order” (Docket Entry 18) (the “Protective Order Motion”)
filed by Unum Life Insurance Company of America (the “Defendant” or
“Unum”); “Defendant’s Motion for Leave to File Under Seal” (Docket
Entry 17) (the “Sealing Motion”) (collectively, “Defendant’s
Motions”); and “Plaintiff’s Motion to Compel Discovery” (Docket
Entry 32) (“Plaintiff’s Motion”) filed by Dr. Jeffrey Taekman (the
“Plaintiff” or “Dr. Taekman”). For the reasons that follow, the
Court will deny the Protective Order Motion and Plaintiff’s Motion,
but will grant the Sealing Motion.
BACKGROUND
Plaintiff initiated this action under the Employee Retirement
Income Security Act of 1974 (“ERISA”) to recover long-term
disability (“LTD”) benefits under the Private Diagnostic Clinic,
PLLC Long Term Disability Plan (the “Plan”) offered by his former
employer, the Private Diagnostic Clinic, PLLC at Duke University
Medical Center. (See Docket Entry 1 (Plaintiff’s Complaint) at 1-
10.)1 Unum Group Policy No. 409811 002 (the “Policy”) funds the
Plan (see id., ¶ 10; Docket Entry 5 (Defendant’s Answer), ¶ 10),
and Defendant administers and insures both the Plan and Policy (see
Docket Entry 1, ¶ 11; Docket Entry 5, ¶ 11). “Unum is solely
responsible for making all benefit determinations and for paying
and providing all benefits under the Policy from Unum’s own funds.”
(Docket Entry 1, ¶ 12; see Docket Entry 5, ¶ 12.)
“At all times relevant to this action, Dr. Taekman was a
board-certified Anesthesiologist, and practiced medicine in the
specialty of anesthesiology.” (Docket Entry 1, ¶ 9; see Docket
Entry 5, ¶ 9.) Plaintiff suffers from various health impairments,
including Chronic Lymphocytic Leukemia (“CLL”). (See Docket Entry
1, ¶ 13; Docket Entry 5, ¶ 13; see also, e.g., Docket Entry 20 at
13 (indicating that “[Plaintiff] was diagnosed with CLL in 2015 and
notes symptoms of fatigue” and also “has co-morbid medical
conditions” including, among other ailments, “Crohn’s Disease[ and]
essential hypertension”).) The parties agree that, for at least “a
period of time” (Docket Entry 5, ¶ 14), Plaintiff “became limited
from performing the material and substantial duties of his regular
occupation” (Docket Entry 1, ¶ 14; see Docket Entry 5, ¶ 14).
Plaintiff timely applied for benefits under the Policy (Docket
1 Docket Entry page citations utilize the CM/ECF footer’s
pagination.
2
Entry 1, ¶ 15; Docket Entry 5, ¶ 15), and “Unum determined that Dr.
Taekman’s disabling medical conditions limited him from performing
the material and substantial duties of his regular occupation for
approximately twelve weeks” (Docket Entry 1, ¶ 18; see Docket Entry
5, ¶ 18). However, “[b]y letter dated August 12, 2020, Unum then
denied Dr. Taekman’s LTD benefits, effective on or about June 14,
2020.” (Docket Entry 1, ¶ 19; see Docket Entry 5, ¶ 19.)
After an unsuccessful appeal of that decision (see Docket
Entry 1, ¶¶ 20-23; Docket Entry 5, ¶¶ 20-23; Docket Entry 20-2 at
206-12), Plaintiff initiated this “action for payment of [LTD]
benefits and enforcement of ERISA rights pursuant to 29 U.S.C.
§ 1132” (Docket Entry 1, ¶ 2; see Docket Entry 5, ¶ 2). In the
parties’ “Certification and Report of [Federal Rule of Civil
Procedure] 26(f) Conference and Discovery Plan” (Docket Entry 12 at
1 (all-cap and bold font omitted)), “Defendant contend[ed] that[,]
because this matter is governed by ERISA, discovery is limited to
the administrative record [(at times, the ‘AR’)], exclusively.”
(Id. at 2.) More specifically,
Unum contend[ed] that discovery in this matter is limited
to production of the Administrative Records [sic], which
is comprised of the applicable Plan documents and the
claim file assembled and maintained by Unum in connection
with Plaintiff’s claims for Plan benefits. . . .
Defendant argues that, like in Quesinberry [v. Life Ins.
Co. of N. Am., 987 F.2d 1017 (4th Cir. 1993) (en banc)],
the discovery should be limited to the administrative
3
record to promote the economic and judicial efficiency of
ERISA claims.[2]
In that regard, Unum contends that this matter does
not involve “exceptional circumstances” or any reason
that additional evidence is “necessary,” such that the
Court should exercise its discretion to allow limited
discovery to supplement the Administrative Record.
(Id. at 3-4.)
Plaintiff disputed that contention, asserting that, “per [the
United States Court of Appeals for the] Fourth Circuit precedent[,]
. . . the evidence is not limited to the items Defendant chooses to
describe as its ‘Administrative Records.’” (Id. at 4 (citing
Helton v. AT&T, Inc., 709 F.3d 343 (4th Cir. 2013)).) Further,
“Plaintiff contend[ed] that discovery is appropriate and may be
needed on subjects including but not limited to,” inter alia,
(i) “[t]he evidence known to Defendant at the time of its final
decision, regardless of whether Defendant included such evidence
among the documents in its claim file production,” (ii) “[t]he
adequacy and completeness of the documents Defendant includes in
its claim file production, which must consist of all ‘relevant
information,’ as that term is defined by ERISA,” and (iii) “[t]he
existence and impact of Defendant’s conflict of interest as both
the adjudicator and payor of benefit claims.” (Id. at 4-5.)
Nevertheless, “[a]s far as total limits, the Parties agree[d],
2 In tension with this contention, the decision in
Quesinberry notes the parties’ participation in “the discovery
stage of the case,” id. at 1020 n.2, and affirms the district
court’s admission of live testimony at trial, see id. at 1027.
4
subject to the orders of this Court should Plaintiff propound
discovery to which Unum had reserved objection about the
permissible scope of that discovery,” to 25 interrogatories, 25
requests for admission, 25 requests for production, and six
depositions per party, with each deposition limited to no more than
six hours. (Id. at 5.) The parties additionally agreed that
“Ta]ll discovery should be completed by April 28, 2023.” (Id. at
3.)
Following an unsuccessful mediation (see Docket Entry 15 at
1), Plaintiff served interrogatories, requests for admission, and
requests for production of documents on Defendant (see Docket Entry
18-1 (the “Discovery Requests”) at 2-21). On April 12, 2023,
Defendant responded to the Discovery Requests, answering some and
objecting to others. (See Docket Entry 18-4 (the “Discovery
Responses”) at 2-39.) Among its various objections to some of the
Discovery Requests, “Defendant object[ed] on the grounds that thle
relevant request] seeks discovery and information beyond the
permissible scope allowed in ERISA benefits cases subject to the de
novo standard of judicial review.” (Docket Entry 18-4 at 3 (citing
Quesinberry, 987 F.2d at 1025); see id. at 2-36.)* A day later, on
April 13, 2023, Defendant filed Defendant’s Motions. (See Docket
Entry 17 at 3; Docket Entry 18 at 3.) For its part, the Sealing
3 Defendant did not raise this objection to all of the
Discovery Requests to which it objected. (See, e.g., id. at 15.)
Motion explains that “the Administrative Record will be attached as
Exhibit C” to the Protective Order Motion and seeks “to seal
Exhibit C to Defendant’s [Protective Order] Motion.” (Docket Entry
17 at 1-2.)
In turn, the Protective Order Motion notes Plaintiff’s service
of the Discovery Requests and maintains that, on April 11, 2023,
Plaintiff’s counsel “notified [defense counsel] that Plaintiff
intended to notice and subpoena four individual depositions and a
Rule 30(b)(6) deposition of [Defendant] (collectively ‘the Proposed
Depositions’) for the purpose of obtaining testimony regarding the
subject matter of the Discovery Requests.” (Docket Entry 18 at 2.)
Maintaining that “the Court’s review of [Defendant’s]
administrative determinations is limited to the contents of the AR”
(id.), the Protective Order Motion requests entry of a proposed
protective order (see id. at 3), which states, in full:
This Court finds that good cause has been shown to
grant Defendant’s [Protective Order Motion].
Accordingly, discovery in the above captioned case is
limited to the administrative record. “In ERISA actions
in which courts review the administrator’s decision de
novo, introduction of evidence outside the administrative
record is permitted only in exceptional circumstances.”
Donnell v. Metropolitan Life Ins. Co., 165 F. App’x 288,
297 (4th Cir. 2006) (citing Quesinberry[, 987 F.2d at
1026–27]). The administrative record is a complete and
well-developed record, which allowed both parties to
present evidence.
IT IS THEREFORE ORDERED as follows:
1. Defendant’s [Protective Order Motion] is GRANTED.
6
2. This Protective Order governs all discovery in the
above captioned case.
3. Discovery is limited to the administrative record.
4. The Parties will not engage in written discovery
outside producing the administrative record.
5. The Parties will not conduct any depositions.
6. The Parties will not conduct any discovery outside
of the administrative record.
(Docket Entry 18-5 at 1-2 (brackets omitted) (all-cap font in
original).)
Plaintiff has opposed the Protective Order Motion (see Docket
Entry 25 at 1-32), arguing that “[t]here is no basis in law or fact
to support the broad and chilling discovery prohibition Defendant
requests” (id. at 2). According to Plaintiff, the “[Protective
Order] Motion is . . . contrary to the plain meaning of the Federal
Rules of Civil Procedure [(the “Rules”)] and should be denied in
its entirety.” (Id. at 32.) Further, although Plaintiff wants
Exhibit C sealed, he “disagrees with Defendant’s characterization
of Exhibit C as the ‘Administrative Record.’” (Docket Entry 26 at
1.) Thus, Plaintiff would have “the Court permit Defendant to file
the contents of Exhibit C under seal, but . . . direct the [C]lerk
to remove the inaccurate description of ‘Administrative Record’
from the Court’s electronic docket.” (Id. at 1-2.) Subsequently,
on July 5, 2023, Plaintiff filed Plaintiff’s Motion, asking that
the Court, inter alia, compel responses to the March 13, 2023,
Discovery Requests and depositions of Defendant’s “employees Dr.
7
Dean, Dr. Kouros, Dr. Noris [sic] and Ms. Maier” (Docket Entry 32
at 3), as well as a Rule 30(b)(6) deposition of Defendant. (See
id. at 3-4.) Defendant’s time to respond to Plaintiff’s Motion has
not yet elapsed. (See Text Order dated July 15, 2023.)
DISCUSSION
I. Protective Order Motion
A. Relevant Discovery Standards
“The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants.” Fed. R. Civ. P.
26 advisory committee’s notes, 1983 Amendment. Therefore,
“[u]nless 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 . . . .” Fed. R.
Civ. P. 26(b)(1). However, “the simple fact that requested
information is discoverable . . . does not mean that discovery must
be had. On its own initiative or in response to a motion for
protective order under Rule 26(c), a district court may limit
[discovery] . . . .” Nicholas v. Wyndham Int’l, Inc., 373 F.3d
537, 543 (4th Cir. 2004). Indeed, “[d]istrict courts enjoy nearly
unfettered discretion to control the timing and scope of
discovery.” Hinkle v. City of Clarksburg, 81 F.3d 416, 426 (4th
Cir. 1996); see also Cook v. Howard, 484 F. App’x 805, 812 (4th
8
Cir. 2012) (observing that “[d]istrict courts are afforded broad
discretion with respect to discovery”).
Furthermore, “[o]ver the course of more than four decades,
district judges and magistrate judges in the Fourth Circuit
(including members of this Court) have repeatedly ruled that the
party or person resisting discovery, not the party moving to compel
discovery, bears the burden of persuasion.” Kinetic Concepts, Inc.
v. ConvaTec Inc., 268 F.R.D. 226, 243 (M.D.N.C. 2010) (collecting
cases); see also Santiago v. Southern Health Partners, No.
1:15cv589, 2016 WL 4435229, at *2 (M.D.N.C. Aug. 19, 2016) (noting
“the longstanding rule in this Circuit that the parties resisting
discovery bear the burden of persuasion in a discovery dispute” and
explaining that the 2015 amendments to Rule 26 did not “require
shifting the burden of persuasion in all discovery disputes to the
party seeking discovery”); Fed. R. Civ. P. 26 advisory committee’s
notes, 2015 Amendment (“Restoring the proportionality calculation
to Rule 26(b)(1) does not change the existing responsibilities of
the court and the parties to consider proportionality, and the
change does not place on the party seeking discovery the burden of
addressing all proportionality considerations.”). Nevertheless,
under the Rules, “[a] party or any person from whom discovery is
sought may move for a protective order” and “[t]he [C]ourt may, for
good cause, issue an order to protect a party or person from
9
annoyance, embarrassment, oppression, or undue burden or expense.”
Fed. R. Civ. P. 26(c)(1).
“Where a protective order is sought, the moving party bears
the burden of establishing good cause. This burden requires more
than stereotyped and conclusory statements, but rather the movant
must present a particular and specific demonstration of fact as to
why a protective order should issue.” Chavis v. Plumbers &
Steamfitters Loc. 486 Pension Plan, No. 1:17-cv-2729, 2019 WL
4879015, at *3 (D. Md. Oct. 3, 2019) (citation and internal
quotation marks omitted); see also White v. McHugh, Civ. Action
Nos. 3:09-1559, 3:09-2271, 2010 WL 4340399, at *2 (D.S.C. Sept. 3,
2010) (“The burden is on the party seeking protection to show ‘good
cause’ by making a specific demonstration of facts in support of
the request as opposed to conclusory or speculative statements
about the need for a protective order and the harm which will be
suffered without one.”), report and recommendation adopted, 2010 WL
4318834 (D.S.C. Oct. 26, 2010). Furthermore, “[d]espite the broad
discretion conferred on trial courts to decide when a protective
order is appropriate, and what degree of protection is required,
the standard for issuance of a protective order is high.” Chavis,
2019 WL 4879015, at *3.
Additionally, “[a] court’s customary reluctance to constrain
discovery is heightened in the case of a motion seeking to prevent
the taking of a deposition.” Id. at *3 n.4 (internal quotation
10
marks omitted). Thus, “[a]bsent a strong showing of good cause and
extraordinary circumstances, a court should not prohibit altogether
the taking of a deposition. Not only are protective orders
prohibiting depositions rarely granted, but [a movant] has a heavy
burden of demonstrating the good cause for such an order.”
Champion Pro Consulting Grp., Inc. v. Impact Sports Football, LLC,
No. 1:12cv27, 2014 WL 2559285, at *2 (M.D.N.C. June 6, 2014)
(citation and internal quotation marks omitted) (final set of
brackets in original).
The Rules further impose certain obligations on parties
responding to discovery. See, e.g., Garey v. James S. Farrin,
P.C., No. 1:16cv542, 2019 WL 7037606, at *7 (M.D.N.C. Dec. 20,
2019) (explaining that “parties must respond with specificity to
discovery requests, including by making particularized objections,”
and that “general or ‘boilerplate’ objections to discovery requests
lack validity”). For instance, “[Rule 33] requires that a litigant
answer each interrogatory ‘separately and fully in writing under
oath.’ If a litigant declines to answer an interrogatory based on
an objection, ‘[t]he grounds for objecting . . . must be stated
with specificity.’” Walls v. Ford Motor Co., No. 1:20cv98, 2021 WL
1723154, at *4 (M.D.N.C. Apr. 30, 2021) (citation omitted) (final
set of brackets and ellipsis in original); see also Fed. R. Civ. P.
33(b)(4) (“Any ground not stated in a timely objection is waived
unless the court, for good cause, excuses the failure.”). “Mere
11
recitation of the familiar litany that an interrogatory . . . is
overly broad, burdensome, oppressive and irrelevant will not
suffice.” Walls, 2021 WL 1723154, at *4 (internal quotation marks
omitted) (ellipsis in original). “In other words, general or
boilerplate objections to discovery requests lack validity.” Id.;
see also, e.g., Fed. R. Civ. P. 26 advisory committee’s notes, 2015
Amendment (explaining that proportionality amendments do not
“permit the opposing party to refuse discovery simply by making a
boilerplate objection that it is not proportional”).
In turn, Rule 34 “requires that the request . . . describe
with reasonable particularity each item or category of items to be
inspected” and that the response either “permit inspection as
requested or state with specificity the grounds for objecting to
the request, including the reasons.” Walls, 2021 WL 1723154, at *5
(brackets and internal quotation marks omitted) (ellipsis in
original). “While it is not per se unreasonable for a party to
object on the basis that a request is overly broad, burdensome, or
seeks irrelevant information, the objecting party has an obligation
to show specifically why responding to the request would create a
burden or how the request is overly broad in relation to the claims
and defenses presented in the litigation.” Id. (brackets and
internal quotation marks omitted). In addition, “[a]n objection
must state whether any responsive materials are being withheld on
the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C).
12
Rule 36 similarly mandates that, in responding to a request
for admission, “[i]f a matter is not admitted, the answer must
specifically deny it or state in detail why the answering party
cannot truthfully admit or deny it.” Fed. R. Civ. P. 36(a)(4).
Moreover, “[t]he grounds for objecting to a request must be
stated.” Fed. R. Civ. P. 36(a)(5). Finally, “[i]f a motion for a
protective order is wholly or partly denied, the [C]ourt may, on
just terms, order that any party or person provide or permit
discovery.” Fed. Civ. P. 26(c)(2).
B. Relevant ERISA Standards
As the Fourth Circuit has explained, its ERISA-related
decisions have “focus[ed] on distinct but legitimate purposes of
ERISA,” such as “promoting the interests of employees and their
beneficiaries” and ensuring “that ERISA not be interpreted in a
manner that would afford employees and beneficiaries less
protection under its provisions than they had before ERISA’s
enactment.” Quesinberry, 987 F.2d at 1025. Other decisions,
however, have “focus[ed] on the goal of providing prompt resolution
of claims and the concern that district courts should not be made
into substitute plan administrators,” considerations that “warrant
significant restraints on the district court’s ability to allow
evidence beyond what was presented to the administrator.” Id. “In
[the Fourth Circuit’s] view, the most desirable approach to the
13
proper scope of de novo review under ERISA is one which balances
these multiple purposes of ERISA.” Id.
Thus, the Fourth Circuit has
adopt[ed] a scope of review that permits the district
court in its discretion to allow evidence that was not
before the plan administrator. The district court should
exercise its discretion, however, only when circumstances
clearly establish that additional evidence is necessary
to conduct an adequate de novo review of the benefit
decision. In most cases, where additional evidence is
not necessary for adequate review of the benefits
decision, the district court should only look at the
evidence that was before the plan administrator or
trustee at the time of the determination.
Id.
As explained in Quesinberry, “[a] limited discretionary
approach is particularly appropriate because of the variety of
ERISA cases which are brought to the federal courts.” Id. For
instance, “[s]ome ERISA plans provide for extensive administrative
procedures and include lengthy records when appealed to the
district court,” whereas “[o]ther ERISA plans have limited
administrative procedures and come to the district court with very
meager records.” Id. Additionally, “[s]ome ERISA cases involve
complex medical issues crucial to the interpretation and
application of plan terms, while others involve limited
determinations of historical fact.” Id. Finally, “[i]n some ERISA
cases the payor and administrator are the same entity, such as this
case which involves a claim for insurance benefits under the plan
administered by the insurance company,” but “[i]n other ERISA cases
14
they are not the same entity, as where the payor is the pension
fund and the administrator is the employer.” Id.; see also id. at
1026 (“Situations involving an insurance company and denials of
insurance claims may therefore warrant the exercise of discretion
to admit evidence not before the plan administrator because of
concerns about impartiality and ERISA’s interest in providing
protection for employees and their beneficiaries.”). “Because the
district court may be presented with so many different types of
ERISA cases, some flexibility is necessary in determining whether
additional evidence should or should not be allowed.” Id. at 1025-
26; see also id. at 1026 (“The multiple purposes of ERISA, as well
as the variety of claims that may be brought under the statute,
support a limited discretionary standard for the scope of
evidentiary review.”).
Quesinberry thus concludes:
In summary, . . . [district] courts conducting de
novo review of ERISA benefits claims should review only
the evidentiary record that was presented to the plan
administrator or trustee except where the district court
finds that additional evidence is necessary for
resolution of the benefit claim. Exceptional
circumstances that may warrant an exercise of the court’s
discretion to allow additional evidence include the
following: claims that require consideration of complex
medical questions or issues regarding the credibility of
medical experts; the availability of very limited
administrative review procedures with little or no
evidentiary record; the necessity of evidence regarding
interpretation of the terms of the plan rather than
specific historical facts; instances where the payor and
the administrator are the same entity and the court is
concerned about impartiality; claims which would have
been insurance contract claims prior to ERISA; and
15
circumstances in which there is additional evidence that
the claimant could not have presented in the
administrative process. [The Fourth Circuit] do[es] not
intimate, however, that the introduction of new evidence
is required in such cases. A district court may well
conclude that the case can be properly resolved on the
administrative record without the need to put the parties
to additional delay and expense.
This list of factors is not exhaustive but is merely
a guide for district courts faced with motions to
introduce evidence not presented to the plan
administrator. In determining whether to grant such a
motion, the district court should address why the
evidence proffered was not submitted to the plan
administrator. . . .
Id. at 1026-27.4
Notably, though, “[t]he question here is not whether evidence
outside of the administrative record will be admitted — that is a
decision for the District Judge at trial or summary judgment — but
whether [P]laintiff may obtain discovery of such evidence.”
N’Diaye v. Metropolitan Life Ins. Co., No. 17cv4260, 2018 WL
2316335, at *6 (S.D.N.Y. May 8, 2018) (emphasis in original); see
also id. (observing that “the decision as to whether to allow
discovery is distinct from the decision as to whether to allow
consideration of additional evidence” (internal quotation marks
4 Courts’ ability to consider evidence outside the
administrative record remains more limited under the abuse of
discretion standard of review compared to under the de novo
standard. See, e.g., Helton, 709 F.3d at 352 (“Generally,
consideration of evidence outside of the administrative record is
inappropriate when a coverage determination is reviewed for abuse
of discretion.”); see also id. at 352 n.3 (“By contrast, on de novo
review, district courts have limited latitude to consider evidence
from outside the administrative record.”).
16
omitted)). Even in those courts where “[i]t is well settled that
the standard that a plaintiff must meet to obtain discovery outside
of the administrative record is lower than the standard a plaintiff
must meet before the district court may consider evidence outside
the administrative record,” id. (brackets and internal quotation
marks omitted), “[h]owever, the precise standard that an ERISA
plaintiff must meet to obtain discovery outside of the
administrative record is somewhat unsettled,” id.
Nevertheless, a few principles have emerged. First, even in
ERISA cases, the Fourth Circuit “affords substantial discretion to
a district court in managing discovery.” Beckner v. American
Benefit Corp., 273 F. App’x 226, 232 (4th Cir. 2008). Second,
where the plaintiff identifies particular areas of discovery
pertinent to considerations deemed open to inquiry by the Fourth
Circuit, the defendant cannot simply “request[] permanent relief
from discovery obligations extending beyond the administrative
record pursuant to ERISA principles,” Jenkins v. International
Ass’n of Bridge, Structural, Ornamental & Reinforcing Ironworkers
Local No. 79 Pension Fund, No. 2:14cv526, 2015 WL 1291883, at *11
(E.D. Va. Mar. 20, 2015) (brackets and internal quotation marks
omitted), because, under those circumstances, “such broadsweeping
relief is not appropriate,” id. Third, although some courts assess
discovery requests without explicit consideration of the
Quesinberry factors for admission of evidence, see, e.g., Arnold ex
17
rel. Hill v. Hartford Life Ins. Co., No. 7:07cv93, 2007 WL 1389606,
at *2-4 (W.D. Va. May 9, 2007), those factors logically inform
resolution of discovery disputes in de novo review situations, see,
e.g., Termini v. Life Ins. Co. of N. Am., No. 2:06cv591, 2007 WL
1556850, at *3 (E.D. Va. May 21, 2007) (“Under the framework of
ERISA, therefore, plaintiff’s discovery is appropriate only if the
Court determines that the [relevant] policy does not grant
discretionary authority — resulting in the [c]ourt’s undertaking a
de novo review of the administrator’s denial of benefits — and that
an exceptional circumstance is present.”).
C. Analysis
As a preliminary matter, Defendant’s provision of the
Discovery Responses moots its request for an order directing that
“[t]he Parties will not engage in written discovery outside
producing the administrative record” and that “[t]he Parties will
not conduct any discovery outside of the administrative record.”
(Docket Entry 18-5 at 1-2.) Additionally, Defendant did not
provide notices of deposition or any evidence regarding the content
of the Proposed Depositions in connection with the Protective Order
Motion. (See Docket Entries 18 to 18-5, 19, 29 to 29-2.) Instead,
Defendant’s supporting memorandum asserts that Plaintiff’s counsel
informed Defendant’s counsel “that Plaintiff intended to notice and
subpoena four individual depositions and a Rule 30(b)(6) deposition
of [Defendant] . . . for the purpose of obtaining testimony
18
regarding the subject matter of the Discovery Requests.” (Docket
Entry 19 at 2.) Because “an attorney’s unsworn argument does not
constitute evidence,” United States v. White, 366 F.3d 291, 300
(4th Cir. 2004); see also Dillon v. BMO Harris Bank, N.A., No.
1:13-cv-897, 2014 WL 911950, at *2 (M.D.N.C. Mar. 10, 2014)
(explaining that “[s]tatements in briefs are not evidence”),
Defendant has not made the requisite “specific demonstration of
facts in support of [its] request,” White, 2010 WL 4340399, at *2,
for a protective order precluding the Proposed Depositions.
Further, in their briefing on the Protective Order Motion, the
parties largely fail to address specific Discovery Requests,
instead discussing the Discovery Requests collectively. (See
Docket Entries 18, 19, 25, 29.)5 According to Defendant, “[t]he
5 In its only reference to specific Discovery Requests,
Defendant asserts, in a footnote:
By way of example, Interrogatory Nos. 3-5 request
statistical information regarding the number of medical
reviews performed by the physicians who reviewed
Plaintiff’s medical records for a 5-year time period, as
well as the opinions expressed in their reports and the
outcome of the claim decisions in connection with which
they reviewed medical records. Not only would the
information sought fail to illuminate whether
[Defendant’s] administrative determinations were correct
in this case from a de novo perspective, but these
requests would be improper under the deferential abuse of
discretion standard as well. [Defendant] asserted its
multiple objections to Plaintiff’s Discovery Requests in
responses served on Plaintiff’s counsel on April 12, 2023
(copy attached as Exhibit D).
(Docket Entry 19 at 4 n.1 (citations and bold font omitted).)
19
Court’s review of [Defendant’s] administrative determinations is
limited to the contents of the [administrative record]” (Docket
Entry 19 at 5 (bold font omitted)), on the theory that “[n]one of
the relevant exceptional circumstances identified by the court in
Quesinberry are present here” (id. at 7). (See id. at 5-13).°
Defendant also maintains that the Discovery Requests’ seek
information “which may arguably relate to bias and conflict of
interest for purposes of reviewing a claim decision for abuse of
discretion but have no application to a dé novo review” (id. at
14), rendering them disproportional. (See id. at 13-16.)
Plaintiff responds that “[a]lt least four of the seven
[exceptional circumstances identified in Quesinberry] are present
in this case,” namely (i) “[c]laims that require consideration of
For his part, in his opposition to the Protective Order
Motion, Plaintiff stated that he “will separately address the
merits of each of his requests in his [m]Jotion to [c]lompel and
supporting materials” (Docket Entry 25 at 23), which he described
as “forthcoming” (id. at 2). Despite asserting as early as April
that he “anticipate[d] filing his motion [to compel] in the coming
days” (Docket Entry 22 at 3), and reiterating again by mid-June
that “Plaintiff intends to file a motion to compel Defendant’s
responses to his written discovery request and to compel the
noticed depositions... . and anticipates filing [the] motion and
supportive materials in the coming days” (Docket Entry 30 at 3),
Plaintiff waited late into the night on July 5, 2023, to file
Plaintiff’s Motion. (See Docket Entry 32.) Moreover, as the
discussion which follows above shows, Plaintiff failed to satisfy
his Rule 37 obligations in bringing such motion, necessitating its
denial.
6 The parties agree that the de novo standard applies to
Plaintiff’s claim for LTD benefits. (See, e.g., Docket Entry 1,
33-34; Docket Entry 19 at 5.)
20
complex medical questions;” (ii) “[c]laims that require
consideration of issues regarding the credibility of medical
experts;” (iii) “[i]nstances where the payor and the administrator
are the same entity and the court is concerned about impartiality;
and” (iv) “[c]laims which would have been insurance contract claims
prior to ERISA.” (Docket Entry 25 at 14 (citing Quesinberry, 987
F.2d at 1027-28).) Per Plaintiff:
Most obviously, this case will require the [C]ourt to
consider a complex medical question: whether the
specific risk of exposure to COVID-19 presented by the
material and substantial duties of a clinical
anesthesiologist would preclude Dr. Taekman from
performing his occupation given his fragile immune system
and other physical limitations.
. . . [T]he Court will also need to make findings
regarding the credibility and weight to assign to the
conflicting opinions of Plaintiff’s treating physicians
and Unum’s record reviewers. Plaintiff should be
permitted a reasonable opportunity to conduct discovery
into the existence and extent of any relevant evidence
which would further bear on the contrast between the
qualifications of Dr. Brander and Unum’s record
reviewers.
This case also presents the “exceptional
circumstances” where the payor and the administrator are
the same entity and the court is concerned about
impartiality. . . . Unum is both the payor and the
entity responsible for deciding claims under the Plan.
Further, . . . Unum has a documented history of unfair
claims practices, and Plaintiff has identified items and
information missing from Unum’s proposed record.
Finally, benefits under the Plan are distributed
pursuant to a group insurance policy, of which Plaintiff
is a beneficiary. If this plan were not subject to
ERISA, Plaintiff’s claims would be governed by state
insurance law.
(Id. at 14-15.)
21
In its reply, Defendant does not directly address whether this
case satisfies the complex medical question, medical expert
credibility, or insurance contract exceptional circumstances.
(See Docket Entry 29 at 1-17.) Instead, Defendant asserts:
In the same vein, Plaintiff argues that Bursell v.
Gen. Elec. Co., 243 F. Supp. 2d 460, 469 (E.D.N.C. 2003)
— which [Defendant] cited for the court’s declination to
consider extra-record evidence where, like here, the
claimant argued complex medical and medical expert
credibility issues, but the court found the evidence
could be understood based on the AR [D.E. 19, p. 13] —
supports his position because “the Bursell opinion makes
clear that the parties had conducted discovery, including
depositions in that case.” [D.E. 25, p. 27]. But
Bursell actually supports [Defendant’s] argument that the
discovery Plaintiff seeks is not proportional to the
needs of this case because the court in Bursell
specifically held the information discovered was not
necessary for the court’s de novo review (which equates
to a finding that it was not proportional to the needs of
the case). Here, [Defendant] should not be subjected to
expensive and time-consuming discovery of information
that will not be utilized in the determination of whether
Plaintiff was disabled under the provisions of the Plan.
(Docket Entry 29 at 12 (emphasis and certain brackets in
original).)
However, in its opening memorandum, Defendant maintained that
“[n]o complex medical questions or medical expert credibility
issues are present” (Docket Entry 19 at 11 (bold font omitted)) on
the grounds that “the issue is whether a risk of exposure to
COVID-19 constitutes a disability under the terms of the Group
Policy and the Plan based on the specific facts of Plaintiff’s
circumstances: his occupational duties, his medical conditions,
and his ability to mitigate risk of contracting COVID-19 through
22
vaccination and proper use of [personal protective equipment]” (id.
at 13). Notably, though, Defendant failed to provide support
either for its proposition that the issue of the risks posed by
COVID exposure for an immunocompromised anaesthesiologist does not
constitute a complex medical question or that the credibility of
the various doctors involved — who issued conflicting opinions on
this key question — lacks relevance to this determination. (See
id. at 11-13.) In any event, Defendant did not address Plaintiff’s
assertion that this matter satisfies Quesinberry’s “insurance
contract claims” exceptional circumstance (see Docket Entries 19,
29), thereby conceding that argument, see Kinetic Concepts, Inc. v.
Convatec Inc., No. 1:08cv918, 2010 WL 1667285, at *6-9 (M.D.N.C.
Apr. 23, 2010) (collecting cases) □□
Plaintiff also argues that “several items . . . are missing
from Exhibit C” (Docket Entry 25 at 21 (bold font omitted)),
including “copies of articles [that] Plaintiff submitted to
[Defendant] during the claims [process]” (id. at 22). According to
Plaintiff:
The articles contained information regarding the risk
COVID-19 presents to individuals with CLL. See [ (Docket
Entry 20-1 at 31)]. These articles are part of the
record evidence in this case, were presented to Defendant
during the claim process, and are important for the
7 Notably, two of Plaintiff’s requests for admission
explicitly address North Carolina insurance provisions (regarding
treatment of examining physician’s opinions, see 11 N.C. Admin.
Code 4.0319(1)). (See Docket Entry 18-1 at 12.)
23
Court’s understanding of the complicated medical issues
in this case.
(Docket Entry 25 at 22-23.)8
In response, Defendant counters:
This assertion is demonstrably untruthful and misleading,
as the referenced articles were not submitted to
[Defendant] until after the final appeal decision was
rendered; moreover, they were submitted to [Defendant] as
exhibits to a demand letter from Plaintiff’s counsel in
connection with confidential pre-litigation settlement
discussions which Plaintiff’s counsel agreed would not be
used in future pleadings. See Email dated April 13,
2022, Exhibit A; Signed Confidentiality Letter dated
April 13, 2022, Exhibit B.
(Docket Entry 29 at 8 (emphasis in original).)
Contrary to Defendant’s contention, the record reflects that
Plaintiff submitted the referenced articles during the claims
process, prior to Defendant’s original denial. Specifically, the
page of the administrative record referenced by Plaintiff on this
front contains the following notation:
Activity
--------------------------------------------------------
Checked/Unchecked Indicator: No
Type: Auto-generated Name: Web/IVR Information Received
8 Plaintiff further notes that the administrative record
lacks “the curriculum vitae [(each, a ‘CV’)] of [Defendant’s]
medical record reviewers,” which Plaintiff requested in the
Discovery Requests. (Id. at 21.) Defendant responds that “there
is no requirement that CVs be included in the AR, particularly
where the claims administrator is familiar with the qualifications
of the reviewing physicians.” (Docket Entry 29 at 7.) Regardless,
the CVs contain information that may well inform the District
Judge’s ultimate credibility evaluations and the record contains no
indication that producing the CVs imposed any appreciable burden on
Defendant (see, e.g., Docket Entry 18-4 at 28 (raising no burden
objection in agreeing to produce CVs)).
24
Status: Completed
Original Notify Date: 08/03/2020
Notify Date: 08/03/2020
Due Date:
Subject: Information Received
Upon Completion Notify Linked Claim Owner(s): No
Mark As Priority: No
Activity Owner: Massie, Katrina C
Action:
Request Fields
--------------------------------------------------------
Request: Massie, Katrina C 08/03/2020 14:20:17: Message:
Unsure if you saw these two papers. Practicing
anesthesia would place me at even greater risk than the
generic CLL patient where risk is high, regardless of
disease stage. It will not be safe for me to return to
work until there is a reliable vaccine.
https//cllsociety.org/2020/07/covid-19-severity-and-mor
tality-in-chronic-lymphocytic-leukemia-cll-patients/
Created By: Massie, Katrina C
Created Date: 08/03/2020 14:20:17 Create Site: Portland
Response Fields
--------------------------------------------------------
Response: Massie, Katrina C 08/03/2020 14:33:18: recd
Completed By: Massie, Katrina C
Completed Date: 08/03/2020 14:33:18 Complete Site:
Portland
(Docket Entry 20-1 at 31.)
The record does not reflect whether Plaintiff submitted copies
of the articles to Defendant or instead provided only a link to the
referenced “two papers” (id.), although Plaintiff’s unsworn
memorandum suggests that he provided actual “copies of [the]
articles” to Defendant (Docket Entry 25 at 22). In any event,
Plaintiff presented the articles to Defendant in support of his
claim (see Docket Entry 20-1 at 31), prior to either of Defendant’s
25
claims-level doctor reviews, neither of which indicates whether the
reviewing doctor considered the information in those articles (see
id. at 31-39). Based on the notation in the administrative record,
the information in those articles appears relevant to Plaintiff’s
LTD claim, and the provided link no longer returns results. Under
the circumstances, the District Judge could choose to admit copies
of these articles, see Quesinberry, 987 F.2d at 1026-27, and
grounds may exist for discovery regarding Defendant’s experts’
consideration of the information in those articles.
Plaintiff further argues that Defendant has not produced
evidence establishing that the Discovery Requests qualify as
disproportional or impose any undue burden. (See Docket Entry 25
at 28 (arguing that “the objecting party must demonstrate how the
request is burdensome by submitting affidavits or other evidence
revealing the nature of the burden” and that “Defendant[] ha[s] not
produced any such evidence here” (emphasis in original) (internal
quotation marks omitted)).} Defendant responds that “Plaintiff’s
arguments do not establish the reguired proportionality under
[Rule] 26(b)” (Docket Entry 29 at 9 (bold font omitted)). (See id.
at 9-13.) Defendant, however, bears the burden of establishing
good cause for issuance of the protective order. See, €.g.,
Chavis, 2019 WL 4879015, at *3; Kinetic Concepts, 268 F.R.D. at
243; see also Fed. R. Civ. P. 26 advisory committee’s notes, 2015
Amendment (observing that party cannot “refuse discovery simply by
26
making a boilerplate objection that it is not proportional”).
Although Defendant generally asserts that “the Court should not
allow burdensome, expensive Discovery Requests and Proposed
Depositions seeking irrelevant and inadmissible documents and
information” (Docket Entry 19 at 16), its generalized arguments
(see Docket Entries 19, 29) fail to offer “a particular and
specific demonstration of fact as to why a protective order should
issue,” Chavis, 2019 WL 4879015, at *3 (internal quotation marks
omitted).
The Court will therefore deny Defendant’s Protective Order
Motion. Given this denial, the Court may “order that [Defendant]
provide or permit discovery.” Fed. Civ. P. 26(c) (2). In
evaluating the propriety of such relief, the Court notes that
Defendant’s Discovery Responses fall short in many respects. (See
generally Docket Entry 18-4.) For instance, the Discovery
Responses do not “state whether any responsive materials are being
withheld on the basis of that objection,” Fed. R. Civ. P.
34 (b) (2) (C). (See Docket Entry 18-4 at 22-36.) Moreover,
Defendant repeatedly answers the Discovery Requests “[s]ubject to
and without waiving its objections” (id. at 3). (See id. at 3, 18-
35.) “[T]he practice of providing answers ‘subject to’ objections
is confusing and misleading.” Brown v. Experian Info. Sols., Inc.,
No. 3:16cv670, 2017 WL 11632852, at *2 (E.D. Va. Apr. 17, 2017)
(certain internal quotation marks omitted); see also id. (“The
27
court notes that defendant has made a number of discovery responses
‘subject to’ various objections. This amounts to no answer at all,
for it says, essentially, ‘here is some information, but there
could be more that you are not getting.’” (brackets and certain
internal quotation marks omitted)). In addition, many of the
Discovery Responses contain, at least in part, boilerplate and/or
general objections (see Docket Entry 18-4 at 2-36), which “are not
useful to the court ruling on a discovery motion,” Brown, 2017 WL
11632852, at *1 (internal quotation marks omitted). Nevertheless,
many of the Discovery Requests appear expansive in scope, as well
as of limited relevance and/or questionable proportionality given
the identified exceptional circumstances. (See Docket Entry 18-1
at 2-19.)
In light of this Court’s independent obligation to consider
proportionality in adjudicating a discovery dispute, see Fed. R.
Civ. P. 26 advisory committee’s notes, 2015 Amendment, the Court
will deny the Protective Order Motion without prejudice to
Plaintiff promptly filing a motion to compel that specifically
addresses the merits of each of the Discovery Requests and Proposed
Depositions as to which Plaintiff seeks further discovery.
Moreover, any such motion should clearly address why permitting
such discovery, including any requested deposition, qualifies as
proportional given the “significant restraints on the district
court’s ability to allow evidence beyond what was presented to the
28
administrator” and the need to “provid[e] prompt resolution of
[ERISA] claims.” Quesinberry, 987 F.2d at 1025. The motion must
also comply with the dictates specified in the discussion which
follows.
II. Plaintiff’s Motion
A. Relevant Discovery Standards
To minimize the necessity of judicial intervention in
discovery disputes, counsel have certain obligations in conducting
discovery. See Fed. R. Civ. P. 26 advisory committee’s notes, 1983
Amendment Subdivision (g) (“If primary responsibility for
conducting discovery is to continue to rest with the litigants,
they must be obliged to act responsibly and avoid abuse.”); see
also Wagner v. St. Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 422
(N.D. W. Va. 2006) (observing that “[g]amesmanship” in discovery
“is not allowed”). In particular, the Rules “oblige[] each
attorney to stop and think about the legitimacy of a discovery
request, a response thereto, or an objection” before making such
request, response, or objection. Fed. R. Civ. P. 26 advisory
committee’s notes, 1983 Amendment, Subdivision (g) (emphasis
added); see also id. (explaining that the Rules “require[] the
lawyer to pause and consider the reasonableness of his request,
response, or objection”).
Additionally, before filing a motion to compel, a movant must
“certif[y] that the movant has in good faith conferred or attempted
29
to confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action.” Fed. R.
Civ. P. 37(a)(1). As our Local Rules indicate, this Court takes
the parties’ good-faith conferral obligations seriously:
The Court will not consider motions and objections
relating to discovery unless moving counsel files a
certificate that after personal consultation and diligent
attempts to resolve differences the parties are unable to
reach an accord. The certificate shall set forth the
date of the conference, the names of the participating
attorneys, and the specific results achieved. It shall
be the responsibility of counsel for the movant to
arrange for the conference and, in the absence of an
agreement to the contrary, the conference shall be held
in the office of the attorney nearest the court location
where the initial pretrial conference was convened or, in
the absence thereof, nearest to Greensboro.
Alternatively, at any party’s request, the conference may
be held by telephone.
M.D.N.C. LR 37.1(a).
B. Analysis
Here, Plaintiff moved to compel discovery on July 5, 2023.
(See Docket Entry 32 at 4.) In connection therewith, Plaintiff
filed the following certification:
I, [counsel’s name], representing Plaintiff Jeffrey
Taekman, M.D., pursuant to LR 37.1(a), hereby certify
that counsel for the parties conferred by telephone and
email on April 10, 2023 regarding the discovery requests
propounded by Plaintiff. Undersigned counsel. . .
conferred with [three attorneys], counsel for Unum Life
Insurance Company of America.
Counsel continued to discuss Plaintiff’s discovery
on April 11, 2023, and had a second telephone conference
on April 12, 2023. Following multiple and lengthy
communications, the parties concluded that their dispute
involving the written discovery and deposition discovery
had to be resolved by the Court.
30
The parties are unable to reach an accord on the
issues set forth in Plaintiff’s Motion . . . despite
personal consultation and diligent attempts to resolve
their differences.
Respectfully submitted, this the 5th day of July,
2023.
(Docket Entry 32-1 (the “Rule 37 Certification”) at 1-2.)
Per the materials submitted in support of Plaintiff’s Motion,
Defendant provided supplemental responses to the Discovery Requests
on June 2, 2023. (See Docket Entry 33-2 at 41; see also Docket
Entry 33 at 9.) Neither Plaintiff’s Rule 37 Certification nor his
supporting memorandum indicates that the parties conferred after
Defendant served its supplemental responses. (See Docket Entry 32-
1 at 1-2; Docket Entry 33 at 6-10 (detailing “The Discovery
Requests and the Parties’ Meet and Confer Efforts” (bold font
omitted)).) Nevertheless, Plaintiff seeks relief based on
Defendant’s supplemental responses. (See, e.g., Docket Entry 33 at
10 (“Unum’s supplemental Interrogatory responses provide some
additional information but remain insufficient because Unum still
refuses to fully answer the presented interrogatories.”).)
Because Plaintiff has not established that the parties
satisfied their conferral obligations, the Court will deny
Plaintiff’s Motion, see M.D.N.C. LR 37.1(a), but without prejudice
to Plaintiff filing a motion to compel after the parties engage in
a good-faith conferral, consistent with the standards set forth
herein, regarding their outstanding discovery dispute(s).
31
III. Sealing Motion
“[T]he courts of this country recognize a general right to
inspect and copy . . . judicial records and documents.” Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “The right of
public access to documents or materials filed in a district court
derives from two independent sources: the common law and the First
Amendment.” Virginia Dep’t of State Police v. Washington Post, 386
F.3d 567, 575 (4th Cir. 2004). As relevant here, the common-law
presumption of access “can be rebutted if countervailing interests
heavily outweigh the public interests in access,” and “the party
seeking to overcome the presumption bears the burden of showing
some significant interest that outweighs the presumption.” Id.
(brackets and internal quotation marks omitted). “[W]hether to
grant or restrict access to judicial records” under the common law
“is a matter of a district court’s ‘supervisory power,’ and it is
[a decision] ‘best left to the sound discretion of the [district]
court, a discretion to be exercised in light of the relevant facts
and circumstances of the particular case.’” Id. (final set of
brackets in original).
“When presented with a request to seal judicial records,” the
Court begins by “determin[ing] the source of the right of access
with respect to each document,” as “only then can it accurately
weigh the competing interests at stake.” Id. at 576 (brackets and
internal quotation marks omitted). The Court thereafter must
32
evaluate the competing interests under the following approach.
First, “it must give the public notice of the request to seal and
a reasonable opportunity to challenge the request.” Id.” Next,
“[the Court] must consider less drastic alternatives to sealing.”
Id. Finally, “if it decides to seal[, the Court] must state the
reasons (and specific supporting findings) for its decision and the
reasons for rejecting alternatives to sealing.” Id.
“Adherence to this procedure serves to ensure that the
decision to seal materials will not be made lightly and that it
will be subject to meaningful appellate review.” Id. This
approach also reflects the reality that “[t]he operations of the
courts and the judicial conduct of judges are matters of utmost
public concern,” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829,
839 (1978), as well as that “the public’s business is best done in
public,” Cochran v. Volvo Grp. N. Am., LLC, 931 F. Supp. 2d 725,
727 (M.D.N.C. 2013).
However, “the mere filing of a document with a court does not
render the document judicial.” In re: Policy Mgmt. Sys. Corp., 67
F.3d 296 (table), Nos. 94-2254, 94-2341, 1995 WL 541623, *4 (4th
Cir. 1995); see also United States v. Moussaoui, 65 F. App’x 881,
9 As to that first requirement, Defendant filed the Sealing
Motion on April 13, 2023. (See Docket Entry 17 at 3.)
Accordingly, all interested persons have received “notice of the
request to seal and a reasonable opportunity to challenge the
request,” Washington Post, 386 F.3d at 576, yet the docket reflects
no objections to the request to seal Exhibit C (see Docket Entries
dated Apr. 13, 2023, to present).
33
889 (4th Cir. 2003) (“The unclassified appendix contains a wide
variety of materials, such as pleadings, hearing and deposition
transcripts, and some discovery materials. Some of these documents
fall within the common law presumption of access, while others are
subject to the greater right of access provided by the First
Amendment. Still others may not qualify as ‘judicial records’ at
all.” (citing United States v. Amodeo, 44 F.3d 141, 145-46 (2d Cir.
1995))); Amodeo, 44 F.3d at 145 (“We think that the mere filing of
a paper or document with the court is insufficient to render that
paper a judicial document subject to the right of public access.
We think that the item filed must be relevant to the performance of
the judicial function and useful in the judicial process in order
for it to be designated a judicial document.”). Rather, “documents
filed with the court are ‘judicial records’ if they play a role in
the adjudicative process, or adjudicate substantive rights.” In re
U.S. for an Order Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d
283, 290 (4th Cir. 2013).
Accordingly, “[b]ecause discovery motions” often “involve
procedural, rather than ‘substantive’ rights of the litigants,”
Kinetic Concepts, Inc. v. Convatec Inc., No. 1:08cv918, 2010 WL
1418312, at *9 (M.D.N.C. Apr. 2, 2010), courts have found that no
right of public access attaches to materials filed with discovery
motions. See id. at *9-10; see also, e.g., Chicago Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312 (11th Cir. 2001)
34
(“The better rule is that material filed with discovery motions is
not subject to the common-law right of access, whereas discovery
material filed in connection with pretrial motions that require
judicial resolution of the merits is subject to the common-law
right, and we so hold.”). In such circumstances, the “good cause”
standard of Rule 26(c) applies to the sealing request. See
Kinetic, 2010 WL 1418312, at *10; see also BASF Agro B.V. v.
Makhteshim Agan of N. Am., Inc., Nos. 1:10cv276, 1:14mc8,
1:13cv422, 2015 WL 12991090, at *4 (M.D.N.C. July 21, 2015) (“If
the[ relevant] documents only asked this court to rule on
procedural discovery grounds, this court would only need to find
that good cause existed for sealing these documents.”).
Alternatively, to the extent that the materials qualify as
“‘judicial records’ because they were filed with the objective of
obtaining judicial action or relief pertaining to [the Protective
Order Motion],” In re U.S., 707 F.3d at 291, the common-law right
of access applies, see BASF Agro, 2015 WL 12991090, at *4
(explaining that “it may also be that these briefs and exhibits are
judicial records because they were filed with the objective of
. . . contesting a motion to compel” and, as such, “the common-law
presumption of access attaches to these documents”). Thus,
“because the Fourth Circuit has not definitively resolved the
access right question in the discovery motion context, the Court
will conduct the ‘competing interests’ balancing test that would
35
govern if the common-law access right did apply, along with the
‘good cause’ inquiry.” Kinetic, 2010 WL 1418312, at *10.
Under Rule 26(c), “[t]he [C]ourt may, for good cause, issue an
order to protect a party or person from,” inter alia, “undue burden
or expense,” Fed. R. Civ. P. 26(c) (1), including by restricting
access to certain materials, see, e.g., Fed. R. Civ. P. 26(c) (1) (F)
& (H) (authorizing sealing of depositions and “specified documents
or information”). “Similarly, the common law presumption of access
may be overcome if competing interests outweigh the interest in
access,” Kinetic, 2010 WL 1418312, at *10 (brackets and internal
quotation marks omitted), and courts have found that “[a] party’s
interest in keeping private personal medical information heavily
outweighs the public interests in access,” Ghaisar v. United
States, No. 1:19cv1224, 2020 WL 6948183, at *1 (E.D. Va. Oct. 27,
2020). %In addition, both courts and the Rules recognize the need
to protect personally identifiable information. See, e.g., Glisson
v. Hooks, No. 1:19-cv-96, 2019 WL 2366470, at *3 (W.D.N.C. June 4,
2019) (collecting cases); Fed. R. Civ. P. 5.2. A lengthy document,
Exhibit C contains extensive discussion of Plaintiff’s medical
history as well as personal identifiers and contact information.
(See Docket Entries 20 to 20-2.)'° Moreover, given the exhibit’s
10 In compliance with Rule 5.2, Defendant has redacted
substantial amounts of such identifying information (see id.), but
maintains that, “[b]lecause of the size of the Administrative
Record, it would be impossible to ensure that all the personal
identification data was successfully redacted” (Docket Entry 17 at
36
medical-focused-nature, “[r]edaction is not an appropriate
alternative, as it likely would require blacking out most of the
[exhibit],” Glisson, 2019 WL 2366470, at *3. Under the
circumstances, including the limited relevance of Exhibit C to
resolution of the Protective Order Motion, the Court will grant
Defendant’s Sealing Motion.
Finally, as previously noted, Plaintiff objects to
“Defendant’s characterization of Exhibit C as the ‘Administrative
Record’” (Docket Entry 26 at 1) and “requests that the Court . . .
direct the [C]lerk to remove the inaccurate description of
‘Administrative Record’ from the Court’s electronic docket” (id. at
1-2). To the extent that Plaintiff seeks such relief, he should
have filed a separate motion under this Court’s Local Rules.
See M.D.N.C. LR 7.3(a). In any event, the Court denies said
request as a waste of judicial resources. The Clerk’s Office
Staff’s existing obligations keep them very busy, and the Court
will not add additional burdens by directing them to change
Defendant’s choice of nomenclature in its electronic filings in
support of its discovery motion, which has no preclusive effect on
any substantive issues in this matter.
CONCLUSION
Defendant has not established good cause for its requested
protective order, and Plaintiff has not satisfied the prerequisites
2).
37
for compelled production of further discovery. However, the record
justifies sealing Exhibit C to the Protective Order Motion.
IT IS THEREFORE ORDERED that the Protective Order Motion
(Docket Entry 18) and Plaintiff’s Motion (Docket Entry 32) are
DENIED without prejudice to Plaintiff filing, by August 10, 2023,
a motion to compel discovery that specifically addresses (i) the
merits of each of the Discovery Requests and/or Proposed
Depositions as to which Plaintiff seeks further discovery and
(ii) why permitting such discovery, including any requested
deposition topic, qualifies as proportional given the “significant
restraints on the [Court’s] ability to allow evidence beyond what
was presented to the administrator” and the need to “provid[e]
prompt resolution of [ERISA] claims,” Quesinberry, 987 F.2d at
1025. Prior to Plaintiff filing any such motion, the parties SHALL
confer about any outstanding discovery dispute(s) consistent with
the standards, and in light of the principles, stated herein.
IT IS FURTHER ORDERED that the Sealing Motion (Docket Entry
17) is GRANTED.
This 26th day of July, 2023.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
38