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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.



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