Discovery

: : Practical Guidelines On Privilege Objections To Discovery Requests

“The description for each of these emails is either “Redacted portion reflecting confidential attorney-client communications with BCBSM Legal Department regarding MLR issues” or “Email reflecting confidential attorney-client communications with BCBSM Legal Department regarding MLR issues.” (ECF No. 145-3). While not a model of detailed description, the description contains information similar to the description in Carhartt, …

: : Practical Guidelines On Privilege Objections To Discovery Requests Read More »

: : Nationwide Class Action Discovery Permitted Against LTD Carrier In Recoupment Dispute

“[T]he only issue before the Court is whether discovery regarding potential class members outside of the state of Pennsylvania is relevant to Plaintiff’s claims under ERISA. Aetna argues that this discovery is irrelevant because Plaintiff’s asserts claims only under state law.  But Aetna misconstrues the allegations in the second amended complaint, which clearly assert that …

: : Nationwide Class Action Discovery Permitted Against LTD Carrier In Recoupment Dispute Read More »

: : Discovery Permitted on Breach of Fiduciary Duty Claim Despite Overlap with Claim for Benefits

It is true that the claims overlap. But where they do, they operate as alternate theories of liability. Pleading multiple causes of action and alternative theories of liability is a standard practice of civil litigation. See F.R.C.P. Rule 8(a)(3). And it is permissible under ERISA. To further clarify, the Ninth Circuit has held that a …

: : Discovery Permitted on Breach of Fiduciary Duty Claim Despite Overlap with Claim for Benefits Read More »

:: Ninth Circuit Sees Broader Discovery Rights For ERISA Claimants In Conflict Of Interest Cases

As Abatie and Glenn materially altered the standard of review applicable to the review of a plan administrator’s denial of benefits under ERISA, permitting consideration of evidence outside of the administrative record to determine the appropriate weight to accord the conflict of interest factor, we vacate the judgment and remand to the district court for …

:: Ninth Circuit Sees Broader Discovery Rights For ERISA Claimants In Conflict Of Interest Cases Read More »

:: Defining The Scope Of Discovery In The Administrative Law Setting

As I noted in a recent opinion, a clear distinction must be drawn between the Court’s allowing supplementation of the administrative record and the Court’s considering extra-record evidence: “For a court to supplement the record, the moving party must rebut the presumption of administrative regularity and show that the documents to be included were before …

:: Defining The Scope Of Discovery In The Administrative Law Setting Read More »

:: The Fiduciary Exception To Attorney Client Privilege In ERISA Cases

In the context of ERISA, courts have found that an ERISA plan fiduciary generally may not assert the attorney-client privilege against plan participants with regard to matters of plan administration. Tatum v. R.J. Reynolds Tobacco Co., 247 F.R.D. 488 (M.D.N.C. 2008) For those that find chess insufficiently challenging, there is a variant, three-dimensional chess.  It’s …

:: The Fiduciary Exception To Attorney Client Privilege In ERISA Cases Read More »

:: Plan Administrators Cannot Invoke “SPD Prevails” Rule To Cure Plan Language Deficiencies

Here, there are no terms in the plan which allow it to be amended by inserting into the SPD such critical provisions as the administrator’s discretionary authority to interpret the plan or to determine eligibility for benefits. Indeed, this particular plan wholly fails to comply with § 1102(b)(3)’s requirement to include a procedure governing amendment …

:: Plan Administrators Cannot Invoke “SPD Prevails” Rule To Cure Plan Language Deficiencies Read More »

:: District Court Permits Supplementation Of Record But With Instruction On Law

ERISA provides federal courts with jurisdiction to review benefits determinations made by fiduciaries or plan administrators. 29 U.S.C. § 1132(a)(1)(B); see also Lopez ex rel. Gutierrez v. Premium Auto Acceptance Corp., 389 F.3d 504, 509 (5th Cir. 2004). A district court’s function when reviewing ERISA claims is like an appellate court’s. “[The court] does not …

:: District Court Permits Supplementation Of Record But With Instruction On Law Read More »

:: Discovery Permitted To Determine Scope Of Administrative Record

In the present case, the plaintiff asserts its procedural challenge on the grounds that, given the different versions of the administrative record produced during discovery, many of which lacked important medical records initially provided by the plaintiff, it is impossible to determine what comprises the full administrative record on which the defendants relied when denying …

:: Discovery Permitted To Determine Scope Of Administrative Record Read More »

Whose Privilege Is It Anyhow?

The fiduciary exception to the attorney-client privilegehas its roots in 19th-century English common-law casesholding that, “when a trustee obtained legal advice relating to his administration of the trust, and not in antici-pation of adversarial legal proceedings against him, thebeneficiaries of the trust had the right to the production of that advice.” Ibid. (collecting cases). The …

Whose Privilege Is It Anyhow? Read More »