TAEKMAN v. UNUM LIFE INSURANCE COMPANY OF AMERICA

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 “Plaintiff’s Second Motion

to Compel Discovery” (Docket Entry 40) (the “Second MTC”) filed by

Dr. Jeffrey Taekman (the “Plaintiff” or “Dr. Taekman”) and

“Plaintiff’s Motion for Extension of the Discovery Period Pending

Resolution of Discovery Motions” (Docket Entry 22) (the “Extension

Motion”). For the reasons that follow, the Court will deny both

motions.

BACKGROUND

In August 2022, 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 Unum Life Insurance Company of

America (the “Defendant” or “Unum”) administers and insures the

Policy (see Docket Entry 1, ¶ 11; Docket Entry 5, ¶ 11).2

Plaintiff’s Complaint raises one claim, “pursuant to 29 U.S.C.

§ 1132(a)(1)(B),” for “recover[y of] benefits and . . .

enforce[ment of Plaintiff’s] rights under the Policy and ERISA.”

(Docket Entry 1, ¶ 39.) The de novo standard of review applies to

this claim. (See, e.g., Docket Entry 1, ¶¶ 33-34 (asserting

applicability of de novo standard in Plaintiff’s Complaint); Docket

Entry 19 at 5 (asserting, in Defendant’s memorandum, that it

remains “undisputed that the Plan documents in this case do not

contain an express grant of discretionary authority to [Defendant]”

and thus that “the Court will review the challenged benefits

decision de novo”).) As a result, the Court’s “job is to make

[its] own independent determination of whether [Plaintiff] was

entitled to [LTD] benefits. The correctness, not the

reasonableness, of [Defendant’s] denial of [LTD] benefits is [the

1 Docket Entry page citations utilize the CM/ECF footer’s

pagination. For legibility reasons, this Opinion utilizes

standardized capitalization and omits italicized, bold, and/or

underlined font in quotations from the parties’ materials.

2 Thus, “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 also

Docket Entry 5, ¶ 12 (“admit[ting] th[at] allegation[]”).)

2

Court’s] only concern in this [case].” Johnson v. American United

Life Ins. Co., 716 F.3d 813, 819 (4th Cir. 2013).

In October 2022, the parties filed their “Certification and

Report of [Federal Rule of Civil Procedure] 26(f) Conference and

Discovery Plan” (Docket Entry 12 (the “Rule 26(f) Report”) at 1),

which noted their disagreement regarding the appropriate scope of

discovery (see, e.g., id. at 1-2), but reflected their agreement

(i) that Defendant would produce (in lieu of initial disclosures by

either party) “a bates-stamped copy of the [P]lan documents,

Defendant’s claims file and other items Defendant contends comprise

its ‘administrative record’ by November 10, 2022” (id. at 2), and

(ii) that “[a]ll discovery should be completed by April 28, 2023”

(id. at 3). On October 27, 2022, the Court adopted the parties’

Rule 26(f) Report, with a clarification not relevant here, thereby

establishing April 28, 2023, as the discovery deadline. (See Text

Order dated Oct. 27, 2022.)

On January 12, 2023, the parties engaged in an unsuccessful

mediation. (See Docket Entry 15 at 1.) A little over two months

later, on March 13, 2023, Plaintiff served his first set of written

discovery on Defendant. (See Docket Entry 40-1 (the “Discovery

Requests”) at 1 (bearing title of “Plaintiff’s First Set of

Interrogatories, Requests for Admission, and Requests for

Production of Documents to Defendant”), 19-20 (reflecting service

date of March 13, 2023).) On April 12, 2023, Defendant served its

3

initial responses thereto. (See Docket Entry 18-4 at 36, 38.)

Meanwhile, on April 11, 2023, Plaintiff (through counsel) notified

Defendant of his intent to notice depositions of Defendant and four

of its employees and/or contractors (the “Proposed Depositions”).

(See, e.g., Docket Entry 18 (the “Protective Order Motion”) at 2;

Docket Entry 22 at 2.) The record does not reflect whether

Plaintiff actually served deposition notices on April 11, 2023, as

the proffered subpoenas bear a date of issuance of April 26, 2023

(see Docket Entry 40-2 at 1, 4, 7, 10, 13),° and Plaintiff has

provided no evidence regarding the service date (see, e.g., Docket

Entry 22 at 2 (asserting, in unsworn filing, that Plaintiff served

deposition notices on April 11, 2023); Docket Entry 25 at 7

(same) .*

In any event, on April 13, 2023, Defendant moved for a

protective order regarding the Discovery Requests and Proposed

Depositions. (See Docket Entry 18 at 2-3.) Defendant also sought

“leave to file the Administrative Record,” attached as Exhibit C to

the Protective Order Motion, “under seal.” (Docket Entry 17

(“Sealing Motion”) at 2; see id. at 1-4.) In support of the

3 Although ostensibly issued on April 26, 2023, the subpoenas

specify depositions at 9 a.m., 10 a.m., 11 a.m., 1 p.m., and 2 p.m.

on April 26, 2023. (Id. at 1, 4, 7, 10, 13.)

4 As this Court previously explained, “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) (observing that “[s]tatements in briefs are not evidence”).

Sealing Motion, Defendant submitted the declaration of one of its

Lead Appeals Specialists, Kesley Maier. (See Docket Entry 17-1

(the “Declaration”), ¶ 1.)

As relevant here, Maier averred:

The Administrative Record . . . is comprised of the

applicable Plan document . . . and the claim file

assembled by [Defendant] in connection with Plaintiff’s

claim for LTD benefits under the Plan. The claim file

contains the documents submitted to [Defendant] by or on

behalf of Plaintiff, and the correspondence and recorded

communications between and among Plaintiff, his

physicians and attorney(s), and representatives of

[Defendant], concerning Plaintiff’s claim for benefits

under the Plan. It also contains the medical and

vocational information received and reviewed by

[Defendant], and other information developed during

[Defendant’s] evaluation of the claim.

The claim file contains all of the facts known to

[Defendant] at the time the appeal decision was rendered.

Everything [Defendant] did and considered during its

investigation of Plaintiff’s claim and in deciding his

appeal is contained in the claim file, including any

additional material submitted during the appeal.

In November 2020, Plaintiff requested that a copy of

his claim file be sent to him. Before a claim file is

sent to [a] claimant or the claimant’s attorney, it is

reviewed by the Benefit Specialist to determine if any

documents: (a) concern another claimant or third-party

(such as misfiled documents or medical records sent in

error by a treatment provider for a patient who is not

the claimant), and (b) attorney-client privilege

documents. If such documents are located within the

claim file, they are removed prior to sending the claim

file to the claimant or attorney. The Lead Benefit

Specialist who reviewed Plaintiff’s claim file did not

locate or remove any such documents as noted in the

Activity log found in the Administrative Record at page

UA-CL-LTD-000327. Consequently, the entire file was sent

to Plaintiff via encrypted e-mail on December 3, 2020.

After the appeal decision on Plaintiff’s claim was

rendered, he again requested a copy of his claim file.

5

As the Lead Appeal Specialist, [Maier] sent the file to

Plaintiff by letter of August 5, 2021 and notified

Plaintiff that, to the extent his file contained

attorney-client privileged documents or other documents

[Defendant] was not required to provide, such documents

were not included. However, no such documents were

located or removed from Plaintiff’s claim file at that

time and the entire file was sent to Plaintiff via U.S.

Mail, as noted in the Activity log found in the

Administrative Record at page UA-CLLTD-000750.

On April 11, 2022, Plaintiff’s attorneys called

[Defendant] to discuss the possibility of a

pre-litigation settlement of Plaintiff’s claim and spoke

with Tracy McLaughlin of [Defendant’s] Alternative

Resolution Team. Ms. McLaughlin and Plaintiff’s

attorneys entered into a confidentiality agreement

whereby they agreed to keep settlement discussions

confidential and agreed not to disclose settlement

communications in any pleadings, discovery motions or

papers, trial proceedings, or in any other manner. For

this reason, [Defendant] has withheld all settlement

communications and Alternative Resolution Team

documentation from the Administrative Record filed with

the Court, pages UA-CL-LTD-000751 through

UA-CL-LTD-000878.

(Id., ¶¶ 4-8 (paragraph numbering omitted).)

Plaintiff concurred in the request to seal Exhibit C, but

objected to identifying it as the “Administrative Record.” (See

generally Docket Entry 26.) According to Plaintiff:

Courts often refer to the evidence that was presented to

the Plan Administrator during the claims process as the

“Administrative Record.” However, that term does not

appear in ERISA’s statute or claims regulations. The

evidence admitted by the Court at trial will include “the

evidentiary record that was presented to the plan

administrator or trustee” and any other evidence the

Court deems prudent for its resolution of the benefit

claim. Quesinberry [v. Life Ins. Co. of N. Am.], 987

F.2d [1017,] 1026-27 [(4th Cir. 1993) (en banc)].

Accord, Tekmen [v. Reliance Standard Life Ins. Co., 55

F.4th 951, 961] n.6 [(4th Cir. 2022)] (district courts

are to review the evidence that was before the

6

administrator, and may review additional evidence when

necessary to conduct an adequate de novo review of the

benefit decision).

(Docket Entry 25 at 17-18; see also Docket Entry 26 at 4 (“The

Court will adjudicate Plaintiff’s claim by reviewing the record

that was in front of Defendant during the claims process and any

other evidence the Court deems relevant to its analysis.” (citing

Quesinberry, 987 F.2d at 1025-27)).) Plaintiff therefore asked

“the Court [to] permit Defendant to file the contents of Exhibit C

under seal, but to direct the clerk to remove the inaccurate

description of ‘Administrative Record’ from the Court’s electronic

docket.” (Docket Entry 26 at 2.)5

Meanwhile, Plaintiff repeatedly asserted that he would file a

motion to compel discovery responses and depositions. For

instance, on April 27, 2023, Plaintiff moved for additional time to

respond to the Protective Order Motion and Sealing Motion

(collectively, “Defendant’s Motions”). (See Docket Entry 21.)

According to that filing, during “meet-and-confer conferences” on

April 14, 2023, and April 20, 2023, “Plaintiff’s Counsel informed

Defendant’s Counsel that Plaintiff intends to file a motion to

compel Defendant’s response to the written discovery and

depositions, in addition to responding to Defendant’s Motion[s].”

5 Finding that “the record justifies sealing Exhibit C to the

Protective Order Motion,” the Court granted the Sealing Motion

(Docket Entry 35 at 38), but denied Plaintiff’s labeling request

(see id. at 37).

7

(Id. at 3.) Similarly, the Extension Motion, filed April 28, 2023,

reports that “Plaintiff is finalizing his Motion to Compel with

respect to Plaintiff’s March 13, 2023 Written Discovery and April

11, 2023 Notices of Deposition. Plaintiff anticipates filing his

motion in the coming days.” (Docket Entry 22 at 3.) Moreover, in

his opposition to the Protective Order Motion, filed May 11, 2023,

Plaintiff relies upon his “forthcoming Motion to Compel Discovery

and supporting materials” (Docket Entry 25 at 2), asserting that he

“will separately address the merits of each of his requests in his

Motion to Compel and supporting materials” (id. at 23). Finally,

Defendant’s motion to reset the dispositive motions deadline, filed

June 14, 2023, includes the following statement from Plaintiff:

As documented in Plaintiff’s [Extension Motion],

Plaintiff intends to file a motion to compel Defendant’s

responses to his written discovery request[s] and to

compel the noticed depositions. Plaintiff recently

received supplemental responses to its [sic] written

discovery requests from Defendant, and anticipates filing

its [sic] motion and supportive materials in the coming

days. As set forth in Plaintiff’s Response to

Defendant’s Motion for Protective Order, it[] is

Plaintiff’s position that there are issues of material

fact which would preclude summary judgment in this case,

and that this case will be resolved under Rule 52[ of the

Federal Rules of Civil Procedure (the “Rules”)].

Nonetheless, Plaintiff does not object to Defendant’s

request to defer the deadline to file any dispositive

motions until the resolution of the parties[’] pending

and soon-to-be-filed discovery motions.

(Docket Entry 30 at 3 (citation and internal quotation marks

omitted).)

8

Notwithstanding the repeated assertions of an imminent motion

to compel, Plaintiff did not file such a motion in April, May, or

June. (See Docket Entries dated Jan. 31, 2023, to July 5, 2023.)

Instead, Plaintiff waited until nearly midnight on July 5, 2023, to

file a motion to compel. (See Docket Entry 32 (“Plaintiff’s First

MTC”) .) Moreover, despite its “submi[ssion on] the 5th day of

July, 2023” (Docket Entry 32-1 at 2), the motion’s supporting “Rule

37 Meet and Confer Certificate” (id. at 1) reports that counsel for

the parties conferred only on April 10, 2023, April 11, 2023, and

April 12, 2023 (see id.).

Finding that “Defendant ha[d] not established good cause for

its requested protective order, and Plaintiff ha[d] not satisfied

the prerequisites for compelled production of further discovery,”

the Court denied both the Protective Order Motion and Plaintiff’s

First MTC. (Docket Entry 35 (the “July Opinion”) at 37-38.) In so

doing, the July Opinion emphasized the Court’s limited ability to

consider material outside the administrative record in adjudicating

Plaintiff’s claim. (See, e.g., id. at 13-16 (noting “significant

restraints on the district court’s ability to allow evidence beyond

what was presented to the administrator,” as well as the United

States Court of Appeals for the Fourth Circuit’s admonition

(i) that “[t]he district court should exercise its discretion” “to

allow evidence that was not before the plan administrator” “only

when circumstances clearly establish that additional evidence is

necessary to conduct an adequate de novo review of the benefit

decision,” which may occur in certain “Tel xceptional

circumstances,” and (ii) that, “[i]ln 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” (internal quotation marks

omitted) (emphasis added)).)° The Court further noted that,

although Defendant fell short in its request for a protective order

and in various of its (initial) responses to the Discovery

Reguests, “many of the Discovery Requests appear expansive in

scope, as well as of limited relevance and/or questionable

proportionality given [Plaintiff’s] identified exceptional

circumstances” (id. at 28). (See id. at 27-28.)

Accordingly:

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 [denied] the Protective

Order Motion without prejudice to Plaintiff promptly

6 As even Plaintiff concedes (see Docket Entry 25 at 17-18),

courts refer to the materials before the plan administrator during

the benefits determination as the “administrative record.” See,

e.g., Tekmen, 55 F.4th at 961 (“In conducting de novo review of a

denial of benefits under ERISA, the district court undertakes a

careful examination of the often-voluminous administrative record

to determine whether the claimant was entitled to benefits. This

may involve assessing credibility and determining the appropriate

weight to assign evidence. .. . Where there are disputed issues

of material fact, a Rule 52 bench trial, which will typically be

limited to the administrative record that was before the plan

administrator, is appropriate.” (footnote omitted)). This Opinion

does the same.

10

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

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 [July Opinion regarding, inter alia, the

parties’ conferral obligations and counsel’s obligations

“to stop and think about the legitimacy of a discovery

request” and “the reasonableness of his request” before

making said request].

(Docket Entry 35 at 29-30 (emphasis and certain brackets in

original); see also id. at 38 (denying Protective Order Motion and

Plaintiff’s First MTC “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” and directing parties, prior to any such motion, to “confer

about any outstanding discovery dispute(s) consistent with the

standards, and in light of the principles, stated [in the July

Opinion]”).)

11

On August 7, 2023, Defendant served its second supplemental

response to the Discovery Requests. (See Docket Entry 36-3 at 2,

53-54.) On August 8, 2023, the parties moved for an extension of

Plaintiff’s deadline to file any motion to compel. (See Docket

Entry 36 at 5-6.) The Court granted the requested extension,

ordering that “Plaintiff shall have until August 23, 2023 to file

a renewed Motion to Compel discovery in accordance with the [July

Opinion].” (Docket Entry 37 at 2.) On August 18, 2023, Defendant

served its third supplemental responses to Plaintiff’s Discovery

Requests. (See Docket Entry 40-3 at 59, 61.) Minutes before

midnight on August 23, 2023, Plaintiff filed his Second MTC. (See

Docket Entry 40.) Notwithstanding Defendant’s repeated

supplementation of its responses, including its representations for

multiple Discovery Requests that “[n]o documents exist which are

responsive to th[at RJequest” (Docket Entry 40-3 at 48, 52, 53) and

that “[Defendant] is not withholding any responsive documents” (id.

at 48, 53, 56, 59), Plaintiff’s Second MTC seeks to compel

responses to all but one of the Discovery Requests and to compel

depositions of Defendant and four of its employees/contractors.

(See Docket Entry 40 at 3-4.)’

7 Specifically, Plaintiff seeks compelled responses “within

thirty (30) days [of] the [o]rder [resolving the Second MTC]” (id.

at 3), depositions within 60 days of such order, a discovery

deadline 90 days from such order, and a dispositive motions

deadline set 120 days from said order. (See id. at 3-4.) Notably,

the parties did not finish briefing Plaintiff’s Second MTC until

late September 2023 (see Docket Entry 46) and this case remains set

12

According to Plaintiff’s memorandum in support of his Second

MTC:

The issue presented through Plaintiff’s discovery

requests in this motion is not whether Plaintiff

presented the evidence he seeks to discover to Unum, but

rather whether Unum presented Plaintiff and the Court all

of the evidence that is part of the “evidentiary record”

in this case. Unum should not be permitted to determine

unilaterally what evidence in its files is or is not

presented to the Court. The discovery Plaintiff seeks is

discovery of exactly what Unum used and relied upon in

its decision to deny Plaintiff’s policy benefits.

Discovery of what Unum used and relied upon to deny

Plaintiff’s claim is both proportional and appropriate in

Plaintiff’s case.

(Docket Entry 41 at 9; see also Docket Entry 46 at 4 (“Plaintiff’s

[Second MTC] does not seek to discover or admit a single piece of

information that was not ‘before’ Unum during its claims process in

this case. Plaintiff’s motion is for discovery of potential

evidence that Unum possesses, but which Plaintiff cannot access

without the limited discovery he seeks.”).)

DISCUSSION

I. Second MTC

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.

for trial on April 1, 2024, with pretrial deadlines starting on

March 1, 2024 (see Docket Entry 31 at 1). Even calculated from the

date that Plaintiff, minutes before midnight, filed his reply in

support of his Second MTC, Plaintiff’s proposed timeline would

extend briefing on any dispositive motions past the start of such

pretrial deadlines.

13

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) (emphasis added). 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

Cir. 2012) (observing that “[d]istrict courts are afforded broad

discretion with respect to discovery”). Accordingly, “the [C]ourt

has ‘substantial discretion’ to grant or deny motions to compel

discovery.” English v. Johns, No. 5:11-ct-3206, 2014 WL 555661, at

*4 (E.D.N.C. Feb. 11, 2014) (quoting Lone Star Steakhouse & Saloon,

Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995)).

To channel that discretion, “[i]n this Court, generally, a

party must file a motion to compel before the close of discovery in

order for that motion to be deemed timely.” Smith v. 3M Co., No.

1:16cv379, 2018 WL 11424778, at *2 (M.D.N.C. Aug. 29, 2018)

14

(brackets and internal quotation marks omitted). “Moreover, mere

speculation that documents exist is not a sound basis for a motion

to compel production.” Susko v. City of Weirton, No. 5:09cv1, 2011

WL 98557, at *4 (N.D. W. Va. Jan. 12, 2011); see also, e.g., M.S.

ex rel. M.E.S. v. Woodland Hills Sch. Dist., No. 10-700, 2011 WL

294518, at *2 (W.D. Pa. Jan. 27, 2011) (observing, where defendant

“indicat[ed] that it was not in possession of responsive

information,” that “[the court] cannot compel [the d]efendant to

produce information that it does not have, and must accept its

representation”); In re Lorazepam & Clorazepate Antitrust Litig.,

219 F.R.D. 12, 17 (D.D.C. 2003) (“The federal courts are often

confronted with a party’s complaint that its opponent must have

documents that it claims not to have. Such suspicion is, however,

insufficient to warrant granting a motion to compel.”). In

addition, “the relevance standard of Rule 26 is not without bite,

and will not allow parties to explore matter which does not

presently appear germane on the theory that it might conceivably

become so.” Wall v. Reliance Standard Life Ins. Co., 341 F.R.D. 1,

5 (D.D.C. 2022) (internal quotation marks omitted).

Notably, Rule 26 “was amended in 2015 to emphasize the need

for proportionality in discovery and to ‘encourage judges to be

more aggressive in identifying and discouraging discovery

overuse.’” Id. (quoting Fed. R. Civ. P. 26 advisory committee’s

notes, 2015 Amendment, Subdivision (b)(1)). In this regard, “[t]he

15

parties and the court have a collective responsibility to consider

the proportionality of all discovery and consider it in resolving

discovery disputes.” Fed. R. Civ. P. 26 advisory committee’s

notes, 2015 Amendment. That directive extends the longstanding

principle that 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”). In sum,

the spirit of the [R]ules is violated when advocates

attempt to use discovery tools as tactical weapons rather

than to expose the facts and illuminate the issues by

overuse of discovery or unnecessary use of defensive

weapons or evasive responses. All of this results in

excessively costly and time-consuming activities that are

disproportionate to the nature of the case, the amount

involved, or the issues or values at stake.

Fed. R. Civ. P. 26 advisory committee’s notes, 1983 Amendment.

B. Relevant ERISA Standards

In adjudicating ERISA-related claims for benefits, courts must

“balance[] the[] multiple purposes of ERISA,” which include “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.” Quesinberry, 987 F.2d at

16

1025. Accordingly, in cases subject to de novo review, 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. (emphasis added).

In other words,

[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 the court is concerned about

impartiality; claims which would have been insurance

contract claims prior to ERISA; and circumstances in

which there is additional evidence that the claimant

could not have presented in the administrative process.

[The Fourth Circuit] d[id] 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.

17

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 (emphasis added).

Notably, although uncertainty exists regarding “the precise

standard that an ERISA plaintiff must meet to obtain discovery

outside of the administrative record,” N’Diaye v. Metropolitan Life

Ins. Co., No. 17cv4260, 2018 WL 2316335, at *6 (S.D.N.Y. May 8,

2018), in ERISA cases, the Fourth Circuit still “affords

substantial discretion to a district court in managing discovery,”

Beckner v. American Benefit Corp., 273 F. App’x 226, 232 (4th Cir.

2008). In the exercise of that discretion in de novo review

situations, the Quesinberry principles for admission of evidence

logically inform resolution of discovery disputes. 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, [the] plaintiff’s discovery is appropriate only if the

[c]ourt 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.”).

18

C. Analysis

This Court previously warned Plaintiff that his Discovery

Requests “appear[ed] expansive in scope, as well as of limited

relevance and/or questionable proportionality given the . . .

exceptional circumstances” that Plaintiff asserts this case

involves. (Docket Entry 35 at 28.) The Court therefore ordered

Plaintiff to “specifically address[]” (id. at 38) in any subsequent

motion to compel

(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.

(Docket Entry 35 at 38 (brackets in original).) As evidenced by

Plaintiff’s own description of the purposes of his discovery, the

Second MTC fails to satisfy this directive. (See, e.g., Docket

Entry 41 at 9 (“The issue presented through Plaintiff’s discovery

requests in this motion is . . . whether Unum presented Plaintiff

and the Court all of the evidence that is part of the ‘evidentiary

record’ in this case. . . . The discovery Plaintiff seeks is

discovery of exactly what Unum used and relied upon in its decision

to deny Plaintiff’s policy benefits. Discovery of what Unum used

and relied upon to deny Plaintiff’s claim is both proportional and

appropriate in Plaintiff’s case.”); see also Docket Entry 46 at 7

19

(“These requests are proportional to the case at bar because they

request Unum to produce information about Plaintiff’s claim that it

already possesses.”).)

This case presents one substantive issue: “whether

[Plaintiff] was entitled to [LTD] benefits,” Tekmen, 55 F.4th at

961. See also Johnson, 716 F.3d at 819 (explaining that, on de

novo review, “[the court’s] job is to make [its] own independent

determination of whether [the plaintiff] was entitled to the

[requested] benefits”). To resolve this issue, according to

Plaintiff, “[t]he Court will sit as fact-finder to decide whether

Dr. Taekman has shown by a preponderance of the admitted evidence

that he was limited from performing the normal duties of a clinical

anesthesiologist.” (Docket Entry 41 at 3.) Or, as the Fourth

Circuit has stated: “In conducting de novo review of a denial of

benefits under ERISA, the district court undertakes a careful

examination of the often-voluminous administrative record to

determine whether the claimant was entitled to benefits.” Tekmen,

55 F.4th at 961.8

8 In his memorandum in support of his Second MTC, Plaintiff

for the first time attempts to justify his Discovery Requests and

Proposed Depositions on the grounds that he “has also made a claim

for attorneys’ fees.” (Docket Entry 41 at 11.) Despite multiple

rounds of briefing over multiple months regarding this discovery

dispute, Plaintiff waited until late August to assert such a

justification for his desired discovery. (See, e.g., Docket

Entries 25, 33, 41.) Moreover, the same test for awarding

attorney’s fees applies in ERISA cases involving both the abuse of

discretion and de novo standards of review. See Williams v.

Metropolitan Life Ins. Co., 609 F.3d 622, 634-36 (4th Cir. 2010)

20

This narrow focus serves as the guidepost for measuring the

relevance and proportionality of Plaintiff’s requested discovery.

See, e.g., Fed. R. Civ. P. 26 advisory committee’s notes, 2000

Amendment, Subdivision (b)(1) (“The Committee intends that the

parties and the court focus on the actual claims and defenses

involved in the action.”). Despite the extremely limited

circumstances under which the Court could choose to exercise its

discretion to admit additional evidence in making this

(affirming attorney’s fee award in abuse of discretion ERISA case);

Quesinberry, 987 F.2d at 1028-30 (analyzing attorney’s fee ruling

in de novo ERISA case). However, when “a court reviews an

administrator’s decision under a deferential standard, discovery

and introduction of extrinsic evidence pertaining to the ‘mental

processes of the plan’s administrator’ are generally, if not

uniformly, disallowed.” Donnell v. Metropolitan Life Ins. Co., 165

F. App’x 288, 297 (4th Cir. 2006) (citing Perlman v. Swiss Bank

Corp. Comprehensive Disability Prot. Plan, 195 F.3d 975, 981-82

(7th Cir. 1999)); see also Perlman, 195 F.3d at 981-82 (“It follows

from the conclusion that review of [the plan administrator’s]

decision is deferential that the district court erred in permitting

discovery into [the administrator’s] decision-making. There should

not have been any inquiry into the thought processes of [the

administrator’s] staff, the training of those who considered [the

plaintiff’s] claim, and in general who said what to whom within

[the administrator] — all of which [the plaintiff] was allowed to

explore at length by depositions and interrogatories, and on some

of which the district judge relied. Deferential review of an

administrative decision means review on the administrative

record. . . .”). Accordingly, the simple fact that an ERISA

plaintiff seeks attorney’s fees cannot, by itself, justify wide-

ranging discovery. Yet, as noted, Plaintiff seeks expansive

discovery, including into Defendant’s “training materials” and

internal “decision-making process” (Docket Entry 43-1 at 3) and by

“deposing the employees who participated in [certain] meetings to

determine both the substance of what was said and advised, as well

as any further information that may lead to admissible evidence”

(Docket Entry 41 at 16). Under the circumstances, Plaintiff’s

attorney’s fee request does not justify further compelled

discovery.

21

determination, see Quesinberry, 987 F.2d at 1025-27, Plaintiff

continues to seek compelled production of information with minimal,

if any, relevance to this determination (see, e.g., Docket Entry

40-3 at 42 (requesting “a copy of the ‘Benefits Center Claims

Manual’ and any other manual(s), internal rule(s), regulation(s),

guideline(s), protocol (s), policy(ies), procedure(s),

memorandum(a), directive(s), guidebook(s), and any other criteria

of any type or form that relates in any way to Unum’s determination

of disability, coverage, and/or award or denial of benefits of

disability insurance claims or disability plans administered by

Unum [that] was in effect from 2018 through the present, as well as

all changes made to any one or more of these materials during this

same period” (emphasis added)); see also Docket Entry 41 at 21-22

(confirming that particular request seeks materials regarding

“Unum’s administration of disability claims generally” as distinct

from “Plaintiff’s claim,” as to which another request seeks same

categories of information)).

Further, on April 13, 2023, Defendant filed a Declaration

averring (i) that “[e]verything [Defendant] did and considered

during its investigation of Plaintiff’s claim and in deciding his

appeal is contained in the claim file[ included in the

administrative record filed as Exhibit C to the Protective Order

Motion], including any additional material submitted during the

appeal” (Docket Entry 17-1, 97 5; see id., 7 4), (11) that Defendant

22

removed no documents from its claim file when it provided “the

entire file” to Plaintiff on December 3, 2020 (id., ¶ 6), and

August 5, 2021 (id., ¶ 7), and (iii) that Defendant has only

removed post-claim-denial “settlement communications and

Alternative Resolution Team documentation from the Administrative

Record filed with the Court,” per a pre-litigation agreement

between the parties (id., ¶ 8). In the months that followed,

Defendant repeatedly reiterated in response to Plaintiff’s

Discovery Requests that the filed administrative record contains

all material that it considered in adjudicating Plaintiff’s

benefits claim. (See, e.g., Docket Entry 40-3 at 58-59 (objecting

to request to “produce and bates stamp all documents of any type or

form or format whatsoever that comprise Unum’s entire, unredacted,

complete claims file respecting [Dr.] Taekman” on grounds that “it

is unreasonably cumulative and duplicative insofar as it seeks

production of the Administrative Record previously provided to

Plaintiff’s counsel” but “stat[ing] that all documents responsive

to this Request were included in the Administrative Record

previously produced to Plaintiff’s counsel” and “further

respond[ing] that, since all documents responsive to this Request

were included in the Administrative Record previously produced to

Plaintiff, Unum is not withholding any responsive documents”).)

Nevertheless, Plaintiff continues to pursue what he himself

describes as “discovery of exactly what Unum used and relied upon

23

in its decision to deny Plaintiff’s policy benefits,” arguing that

“[d]iscovery of what Unum used and relied upon to deny Plaintiff’s

claim is both proportional and appropriate in Plaintiff’s case.”

(Docket Entry 41 at 9; see also id. at 8 (“Plaintiff submits that

much of the information he requests is part of the evidentiary

record because it is information Unum possessed and may have relied

upon, [sic] in reviewing Plaintiff’s claim.”).) Notably, Plaintiff

has produced no evidence, despite multiple opportunities to do so,

that the administrative record Defendant filed does not contain all

materials Plaintiff submitted and/or Defendant considered in its

claim adjudication. Instead, in unsworn memoranda, Plaintiff’s

counsel repeatedly asserts that “Plaintiff has identified items and

information missing from Unum’s proposed record.” (Docket Entry 25

at 15; see also, e.g., id. at 21-23; Docket Entry 41 at 11; Docket

Entry 46 at 15.)9

In this regard, Plaintiff first asserts that, on April 12,

2023, he obtained, through discovery, “the curriculum vitae [(the

“CVs”)] of Unum’s medical record reviewers” and that he “would not

know the ‘facts’ contained in the CVs, absent his efforts to

conduct discovery.” (Docket Entry 25 at 21-22.) According to

Plaintiff, “[t]he CVs demonstrate that there were ‘facts’ known to

Unum at the time of the appeal decision which were not known to

9 As this Court previously explained, “an attorney’s unsworn

argument does not constitute evidence.” (Docket Entry 35 at 19

(internal quotation marks omitted).)

24

Plaintiff, and which Unum now contends should be excluded from the

Court’s review.” (Id. at 22.) Defendant disputes this assertion,

arguing that (i) “the signature blocks on the physicians’ reports

. . . are sufficient to demonstrate their credentials and the

medical specialties in which they are board certified” (Docket

Entry 29 at 7) and (ii) “there is no requirement that CVs be

included in the [administrative record], particularly where the

claims administrator is familiar with the qualifications of the

reviewing physicians” (id.). (See id. at 7-8 (citing N’Diaye, 2018

WL 2316335, at *10 (characterizing such CVs as “documents beyond

the administrative record”)).) Plaintiff neither challenges these

assertions nor contends that the administrative record should

contain the CVs. (See Docket Entries 41, 46.)10

Further, along with the information contained in the CVs,

Plaintiff possesses additional information regarding Defendant’s

medical reviewers. (See, e.g., Docket Entry 40-3 at 22 (detailing

medical reviewers’ payment and employment structures).) However,

he has not explained either the significance of this information

for the Court’s adjudication of his claim or the necessity of

additional discovery in light of the information Defendant has

already provided. (See Docket Entries 41, 46.) Plaintiff thus

10 Indeed, given his failure to address this issue in

briefing his Second MTC, Plaintiff arguably abandoned it.

25

fails to undermine the Declaration or to establish the

proportionality of the additional discovery he seeks.

Second, Plaintiff maintains that the administrative record

omits “the articles Plaintiff submitted in support of his claim

prior to Unum’s denial.” (Docket Entry 46 at 15 (emphasis

omitted).) As this Court previously explained, “[t]he record does

not reflect whether Plaintiff submitted copies of the articles to

Defendant or instead provided only a link to the referenced ‘two

papers.’” (Docket Entry 35 at 25.) Despite this warning, and

despite again relying on this unsworn contention in his Second MTC,

Plaintiff failed to introduce any evidence establishing that he

submitted actual copies of the referenced articles to Defendant

rather than the link that appears in the administrative record.

(See Docket Entries 40 to 42-3, 46.) Accordingly, the record does

not refute the sworn Declaration that the filed administrative

record “contains the documents submitted to [Defendant] by or on

behalf of Plaintiff” (Docket Entry 17-1, ¶ 4) and “all of the facts

known to [Defendant] at the time the appeal decision was rendered”

(id., ¶ 5). Given the Declaration’s sworn assertion that

“[e]verything [Defendant] did and considered during its

investigation of Plaintiff’s claim and in deciding his appeal is

contained in the claim file, including any additional material

submitted during the appeal” (id.), Plaintiff’s attempt to justify

his request for compelled production of further information on the

26

grounds that “it is information Unum possessed and may have relied

upon[] in reviewing Plaintiff’s claim” (Docket Entry 41 at 8) falls

short.

Moreover, Plaintiff continues to insist on compelled

production even regarding Discovery Requests as to which Defendant

stated no responsive documents exist and/or it has not withheld any

responsive documents. (See, e.g., id. at 2 (seeking to compel

responses to all Discovery Requests except for first

interrogatory); see also Docket Entry 40-3 at 48, 52, 53, 56, 59

(stating that “[n]o documents exist which are responsive to thle

Rlequest” and/or that ™“([Defendant] is not withholding any

responsive documents”).) “[T]he [C]ourt cannot compel [Defendant]

to produce documents it does not possess.” United States ex rel.

Adams v. Remain at Home Senior Care, LLC, No. 1:17-cv-1493, 2022 WL

130942, at *3 (D.S.C. Jan. 14, 2022); see also Kinetic Concepts,

Inc. v. ConvatTec Inc., 268 F.R.D. 226, 252 (M.D.N.C. 2010)

(explaining that “even an informed suspicion that additional

non-privileged documents exist . . . cannot alone support an order

compelling production of documents”).?"'

11 Plaintiff argues that his discovery requests “are

proportional to the case at bar because they request Unum to

produce information about Plaintiff’s claim that it already

possesses.” (Docket Entry 46 at 7.) Possession of the requested

material serves as a basic requirement for discovery, not a

limitation that renders the requested discovery proportionate.

See, e.g., M.S., 2011 WL 294518, at *2 (“[The Court] cannot compel

Defendant to produce information that it does not have, and must

accept its representation [to that effect].”); Payless Shoesource

27

Of note here, Defendant has repeatedly supplemented its

discovery responses, notwithstanding its objections thereto,

despite the fact that Plaintiff (i) sought discovery too close to

the discovery deadline to secure any subsequent discovery (see

Docket Entry 18-1 at 21); see also Fed. R. Civ. P. 33(b)(2); Fed.

R. Civ. P. 34(b)(2)(A), and (ii) failed to move to compel prior to

the discovery deadline (see Docket Entries dated Jan. 31, 2023, to

Apr. 28, 2023). (See, e.g., Docket Entry 40-3.) Additionally,

despite the Court’s warnings regarding the expansive and

problematic nature of Plaintiff’s Discovery Requests (see Docket

Entry 35 at 28) and the significant ERISA-related constraints

impacting discovery in this matter (see, e.g., id. at 28-29),

Plaintiff has not meaningfully limited his discovery requests or

explained how the further discovery he seeks qualifies as

proportional given the discovery already provided and/or the

limited circumstances under which the Court could consider material

outside the administrative record in adjudicating his claim. (See

Worldwide, Inc. v. Target Corp., Civ. Action No. 05-4023, 2008 WL

973118, at *4 (D. Kan. Apr. 8, 2008) (explaining that “[Rule] 34

does not require a party to create responsive documents if they do

not exist in the first instance” and “the Court cannot compel a

party to produce documents that do not exist” (internal quotation

marks omitted)). Moreover, such proportionality argument fails to

satisfy the July Opinion’s directive that any motion to compel

specifically address why further discovery “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 provide prompt resolution of ERISA

claims” (Docket Entry 35 at 38 (brackets and internal quotation

marks omitted)).

28

Docket Entries 40 to 42-3, 46.) In addition, the provided

deposition subpoenas reflect an issuance date of April 26, 2023,

for depositions on April 26, 2023. (See Docket Entry 40-2 at 1, 4,

7, 10, 13.) Even accepting Plaintiff’s counsel’s unsworn assertion

that Plaintiff first notified Defendant of the proposed depositions

on April 11, 2023, the reasonableness of such notice, in the

context of this case, appears questionable.

Under the circumstances, the Court finds that the Discovery

Requests and Proposed Depositions qualify as disproportionate and

impose an undue burden on Defendant and the proposed deponents.

The Court therefore denies the Second MTC. Under the

circumstances, including the prior denial of the Protective Order

Motion, the Court further finds that each side should bear its own

expenses, including attorney’s fees, for this discovery dispute.

See Fed. R. Civ. P. 37(a)(5)(B) (precluding expense-shifting where

“circumstances make an award of expenses unjust”).

II. Extension Motion

As noted, the “[C]ourt enjoy[s] nearly unfettered discretion

to control the timing and scope of discovery.” Hinkle, 81 F.3d at

426. In exercising this discretion, however, the Court remains

mindful that the Rules generally require issuance of a scheduling

order early in each case, see Fed. R. Civ. P. 16(b), and that

“[t]he drafters of the Rules intended [the scheduling] order to

control the subsequent course of the action so as to improve the

29

quality of justice rendered in the federal courts by sharpening the

preparation and presentation of cases, tending to eliminate trial

surprise, and improving, as well as facilitating, the settlement

process,” Forstmann v. Culp, 114 F.R.D. 83, 84-85 (M.D.N.C. 1987)

(internal quotation marks omitted). As such, the discovery

“schedule may be modified only for good cause and with the

[Court’s] consent.” Fed. R. Civ. P. 16(b)(4). “[T]he touchstone

of ‘good cause’ under Rule 16(b) is diligence.” Marcum v. Zimmer,

163 F.R.D. 250, 255 (S.D. W. Va. 1995); see also Fed. R. Civ. P. 16

advisory committee’s note, 1983 Amendment, Subdivision (b) (“[T]he

court may modify the schedule on a showing of good cause if it

cannot reasonably be met despite the diligence of the party seeking

the extension.” (emphasis added)).

Filed on the last day of the discovery period, the Extension

Motion “requests that the Court continue the discovery period in

this case beyond April 28, 2023 and until a reasonable time period

following its adjudication of the Parties’ discovery motions.”

(Docket Entry 22 at 3; see also id. at 4.) According to both the

proposed order submitted contemporaneously therewith and

Plaintiff’s Second MTC, Plaintiff envisioned that “reasonable time

period” (id. at 3) as “ninety (90) days from the date of [the

Court’s] order” (Docket Entry 40 at 4) resolving the parties’

successive discovery motions. (See Docket Entry 22-1 at 1-2.) Per

the Extension Motion, Plaintiff served his Discovery Requests on

30

March 13, 2023 (Docket Entry 22 at 1), and notified Defendant of

the Proposed Depositions no earlier than April 11, 2023 (see id. at

1-2), but, in Plaintiff’s view, “[t]he parties have diligently

pursued discovery during the current discovery period” (id. at 3).

Given that, in October 2022, the parties agreed to, and the Court

adopted, a discovery deadline of April 28, 2023 (see Docket Entry

12 at 3; Text Order dated Oct. 27, 2022), waiting until March 13,

2023, to begin discovery does not qualify as diligently pursuing

discovery. Therefore, the Court denies the Extension Motion.

CONCLUSION

The Second MTC fails to comply with the July Opinion and seeks

disproportionate and unduly burdensome discovery, and Plaintiff has

not established good cause to extend the discovery period.

IT IS THEREFORE ORDERED that the Second MTC (Docket Entry 40)

and Extension Motion (Docket Entry 22) are DENIED.

IT IS FURTHER ORDERED that the parties file any dispositive

motions no later than October 25, 2023, any responses to such

31

motions by November 15, 2023, and any replies to such responses by

November 22, 2023.12

This 4th day of October, 2023.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

12 The Court has adopted these dates to allow the completion

of briefing in time for issuance of a recommended ruling and for

the filing and review of objections in advance of the final

pretrial deadlines. As a result, the parties should not anticipate

receipt of any extensions of such deadlines.

32