Unum attempts to hide California disability insurance attorney’s attempt to obtain Unum employee reviews

An order granting discovery of Unum employee performance reviews was issued out of the U. S. District Court, Southern District of California that highlights how important it is for a disability insurance attorney to couch discovery requests carefully

Disability insurance attorney keeps the request focused

Often disability attorneys make the mistake of seeking too much information in their discovery requests. Not this time. On January 19, 2010 Cynthia Sullivan’s disability attorney filed a very specific and artfully drafted discovery request in an effort to expose Unum’s conflict of interest. The request arose out of Sullivan’s claim for further long-term disability benefits under a plan that she had participated in as an employee of Deutsche Bank. The plan was administered by First Unum Life Insurance Company (Unum).

Unum argues against the need for the discovery

Unum objected to Sullivan’s request to produce the performance evaluations and/or performance reviews for the 11 Unum employees who had evaluated Sullivan’s claim during the years 2005, 2006 and 2007. Her disability attorney, moved the court to compel Unum to produce this information.

Unum argued that producing this information was outside the scope of discovery that the Employee Retirement Income Security Act of 1974 (ERISA) allows. The long-term disability insurance provider also claimed that the request was too broad in scope, would take too much time, was asking for information that was “neither relevant nor reasonably calculated to lead to the discovery of admissible evidence” and was seeking personal or private information that could be found in the employee’s personal files. It is ironic that it would take Unum about 10 minutes to gather the information that was requested.

Disability insurance attorney demonstrates the need for discovery

In an effort to provide superior disability legal services, Sullivan’s disability attorney argued that the discovery request was reasonable because the performance evaluations were needed in order to determine how credible the evaluators decisions actually were. The disability attorney was looking for any indication that employees who denied benefits received higher evaluation rates. If this trend could be demonstrated, this evidence could be used to persuade the court to apply a denovo standard of review rather than the arbitrary and capricious standard. The disability attorney also argued that the scope of discovery was reasonably limited, as required by ERISA.

The court reviews the basis for discovery under ERISA

First, the court recognized a pivotal ruling that resulted from a case known as Metropolitan Life Insurance Company v. Glenn. In this case, the U.S. Supreme Court determined that if a plan administrator both evaluates claims for benefits and pays those benefit claims, the insurance provider has a conflict of interest. In order for the court to decide how much weight it needs to give this conflict of interest under the abuse of discretion standard, the court is allowed to consider evidence that is outside of the claims file for the long-term disability applicant, known as the administrative record.

Court considers discovery rulings made by other district courts

The court then looked to decisions that district courts had reached on the issue of requesting performance evaluations from insurance companies. The court found that there was a broad spectrum of decisions. In the Eastern District of Kentucky, such requests were summarily denied. The judges sitting on this bench felt that performance review and personnel file requests were unduly burdensome and found that their intrusiveness outweighed any likely benefit.

On the other hand, other district courts had taken a more moderate stance, rejecting any requests for access to personnel files, but approving “documents about employee compensation criteria or standards” if the employees were involved in a specific claim.

The court noted that Sullivan’s request was very specific. Her attorney only asked for the performance evaluation of the 11 employees who had evaluated her claim for long-term disability benefits over a three-year period.

A decision rendered by the U.S. District Court, Northern District of California had addressed a similar issue and ordered the insurance company to produce the evaluations. The argument put forth by that Court was simple. If the discovery request asked for performance evaluations for the medical consultants or companies connected with the decision process, this information was closely related to the issue of conflict of interest. It was the only way to discover if the medical consultants or companies received rewards from the insurance company when their opinions were adverse to the claimant.

Discovery is even more important if the standard of review is an abuse of discretion

The same case that was heard in the Northern District of California had approved discovery under the de novo standard of review. When a case is being considered under the abuse of discretion standard, with its inherent potential conflict of interest, it is all the more important to gain an accurate picture of how much conflict of interest, if any, has been involved in the decision-making process.

Court rules that discovery could lead to admissible evidence

Unum’s claim that Sullivan’s request for the performance evaluations did not relate to conflict of interest and was unlikely to lead to admissible evidence did not fool U.S. Magistrate Judge Louisa S. Porter. She found that Sullivan’s disability attorney had sufficiently limited his request so that the time frame was reasonable and the scope was sufficiently focused upon Sullivan’s claim for benefits.

As a result, on February 2, 2010 Judge Porter ordered Unum to produce the requested performance evaluations by February 22.

Disability insurance attorney succeeds because of care taken

This case highlights just how important it is for disability insurance attorneys to exercise care when they request discovery. They need to make sure that they can demonstrate how the information is essential to exposing the disability insurance companies conflict of interest. They shouldn’t go on what the courts call a fishing expedition. They need to be content with gathering the information that helps their specific client and applies only to their client’s case. The exercise of a little self control can produce the results they want for their clients.

Comments (7)

  • Joe: Not sure why this would be a concern and I do not know your benefit amount or the maximum duration for your claim but Unum would certainly be financial capable of covering your monthly benefit for as long as you remain eligible under the Policy.

    Jay Symonds Mar 30, 2021  #7

  • What is the financial health of Unum to continue paying long term disability claims going into the future? I’ve been receiving benefits for two decades and would like to continue for the foreseeable future.

    Joe S. Mar 30, 2021  #6

  • David,

    As Unum only gives only typically gives one level of appeal your only option may be to file suit against them. Please feel free to contact our office to discuss your claim in greater detail.

    Stephen Jessup Oct 6, 2015  #5

  • I lost $3,800 dollars a month to these crooks! I can’t even pay my rent now!

    David S. Oct 5, 2015  #4

  • I was approved for disability through UNUM. After 8 years and a declining health condition, UNUM stopped paying my claim stating I was able to work. While nothing had changed except my health continuing to go downward, they had no right or reason to just pull the rug out from underneath me on my claim. They also even denied the appeal even with letters from Doctors stating I should not be engaged in any work status, ever! This is borderline illegal and I would really like to know what our laws are for when they don’t protect us? Not only that UNUM reviews it’s own appeals! CAN YOU BELIEVE THAT CONFLICT OF INTEREST! I haven’t even been able to walk to the bathroom all week or even tie my shoe, you call that able to work? This is insane, what is wrong with this country?

    David S. Oct 5, 2015  #3

  • Denn,

    It is something we may be able to assist you with. Please feel free to contact our office to discuss the overpayment in greater detail.

    Stephen Jessup Jun 25, 2014  #2

  • I was not denied to my long terms dis-ability, under Unum, since 2011, my basic benefits was $2445.00, but since Im receiving my pension at work, and SSDI, so the amount I’m receiving is just $245.00. And then on 2011, I’m receiving money from worker’s compensation for $1058.00 a month. On Unum statement they increase it to $1146.00 and there was an $88.00 difference. Then on 2012, they asked me to repay them the $3000.00. They are saying I got overpaid.

    Do you handle this kind of cases, like a discrepancy of the statement?

    Have a wonderful day,

    Denn S. Baisa Jun 24, 2014  #1

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