# TAEKMAN v. UNUM LIFE INSURANCE COMPANY OF AMERICA

> District Court, M.D. North Carolina · October 4, 2023

URL: https://www.frixlaw.com/law-library/cases/10254387

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** October 4, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254387

## How later opinions describe it (automated extraction)

- 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”
- explaining that “even an informed suspicion that additional non-privileged documents exist . . . cannot alone support an order compelling production of documents”
- observing that “[d]istrict courts are afforded broad discretion with respect to discovery”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254387. Public record. Not legal advice.