Leung v. UNUM Life Insurance Company of America

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD J. LEUNG, MD, Case No.: 22-cv-00767-W-JLB 12 Plaintiff, ORDER: 13 v. (1) GRANTING PLAINTIFF’S 14 UNUM LIFE INSURANCE COMPANY MOTION TO COMPEL FURTHER OF AMERICA, 15 RESPONSE BY DEFENDANT TO Defendant. REQUEST FOR PRODUCTION OF 16 DOCUMENTS (SET NO. 3); AND 17 (2) DENYING PLAINTIFF’S 18 MOTION TO COMPEL FURTHER 19 RESPONSE BY DEFENDANT TO REQUEST FOR PRODUCTION OF 20 DOCUMENTS (SET NO. 4) 21 [ECF Nos. 23, 38] 22 23 24 Before the Court are two motions to compel filed by Plaintiff Richard J. Leung, M.D. 25 (“Plaintiff”). (ECF Nos. 23, 38.) In the first motion, Plaintiff seeks to compel Defendant 26 Unum Life Insurance Company of America (“Defendant”) to provide further responses to 27 Plaintiff’s Request for Production of Documents, Set Three. (ECF No. 23.) Defendant 28 opposes. (ECF No. 26.) In the second motion, Plaintiff seeks to compel Defendant to 1 provide further responses to Plaintiff’s Request for Production of Documents, Set Four. 2 (ECF Nos. 38, 44.) Defendant opposes. (ECF No. 42.) 3 For the reasons set forth below, the Court GRANTS Plaintiff’s motion to compel 4 further response to Request for Production of Documents, Set Three (ECF No. 23), and 5 DENIES Plaintiff’s motion to compel further response to Request for Production of 6 Documents, Set Four (ECF No. 38). 7 I. BACKGROUND 8 This lawsuit arises from a dispute over benefits under several disability income 9 insurance policies Defendant issued to Plaintiff, who claims to be totally disabled as of 10 May 2020 due to purported accidents occurring as far back as 1982. (ECF No. 1 11 (“Compl.”) at ¶¶ 1–3, 30–32, 38; see also ECF No. 26 at 2.) Under Plaintiff’s policies, 12 benefits are payable for up to the longer of 24 months or age 65 for disabilities due to 13 sickness, and for an insured’s lifetime for disabilities due to accident, if the disability starts 14 prior to the age 65 policy anniversary. (ECF No. 26 at 2.) Plaintiff, prior to his 65th 15 birthday, submitted a claim to Defendant, contending his disability resulted from accidents 16 which caused pain, numbness, and loss of mobility in his lumbar and cervical spine. (Id.; 17 see also Compl. ¶ 31.) Defendant determined Plaintiff’s claim was due to sickness and 18 paid the maximum benefits for 24 months. (ECF No. 26 at 2; see also Compl. ¶¶ 5, 34, 19 39.) In his Complaint, Plaintiff brings claims against Defendant for breach of contract and 20 breach of the implied covenant of good faith and fair dealing, disputing Defendant’s claim 21 determination. (Compl. at 7–10.) Plaintiff maintains he is totally disabled due to accidents 22 and entitled to continued benefits for his lifetime. (Id.) 23 In his first motion, Plaintiff seeks to compel further responses to Requests for 24 Production (“RFP”) Nos. 53 and 54 in Plaintiff’s Request for Production, Set Three. (ECF 25 No. 23.) The requests at issue and responses thereto are as follows: 26 RFP No. 53: YOUR billing DOCUMENTS or other financial writings that 27 indicate the total number of times (in yearly or monthly summaries) that YOU 28 1 hired Dane Street – A Medical Review Company from 2016-2021. (Personal identifying information of other insureds should be redacted if applicable). 2 3 Response: Defendant objects to this request on the grounds set forth in the General Objections and further objects on the grounds that: (1) it is vague and 4 ambiguous, particularly as to the phrase “your billing DOCUMENTS or other 5 financial writings” as it does not state with reasonable clarity the documents sought; (2) it is overly broad in time and scope, particularly since Plaintiff did 6 not submit his claim until June of 2020; (3) it seeks documents that are not 7 relevant to the claims or defenses of any party to this litigation and it is not proportional to the needs of the case. Furthermore, it seeks documents that 8 were not considered in the evaluation of Plaintiff’s claim; (4) given the 9 breadth of the request and in conjunction with the vague and ambiguous objection, Defendant further objects to this request: (i) to the extent this 10 request encompasses post litigation documents that would be protected by the 11 attorney-client privilege and/or work product doctrine; (ii) to the extent it seeks to discover confidential business records, private employment 12 information of third parties to this lawsuit which may not be disclosed without 13 infringing on a third-party’s privacy rights; and (iii) to the extent Defendant is unable to assess burden, if any, and proportionality. 14 RFP No. 54: All 1099-MISC and/or W-9 forms issued to Dane Street – A 15 Medical Review Company by YOU, from 2016-2021 for services provided to 16 DEFENDANT. 17 Response: Defendant objects to this request on the grounds set forth in the 18 General Objections and further objects on the grounds that: (1) it is overly broad in time and scope; (2) it seeks documents that are not relevant to the 19 claims or defenses of any party to this litigation and it is not proportional to 20 the needs of the case. Furthermore, it seeks documents that were not considered in the evaluation of Plaintiff’s claim; and (3) given the breadth of 21 the request, Defendant further objects to this request: (i) to the extent this 22 request encompasses post litigation documents that would be protected by the attorney-client privilege and/or work product doctrine; (ii) to the extent it 23 seeks to discover confidential business records. 24 (ECF No. 23-2.) 25 After Defendant served responses to Plaintiff’s Request for Production, Set Three, 26 on November 7, 2022, the parties met and conferred on multiple occasions. (ECF Nos. 23- 27 1 at 2; 23-2; 26 at 6–7.) The parties thereafter lodged a Joint Discovery Statement 28 addressing the RFPs at issue on December 7, 2022. (ECF No. 17.) The Court held an 1 informal Discovery Conference on December 15, 2022. (ECF No. 18.) The parties further 2 met and conferred after the Discovery Conference. (ECF No. 23-1 at 2.) Despite the 3 parties’ meet and confer efforts, they were unable to resolve their dispute as to RFP Nos. 4 53 and 54 and filed the present motion in accordance with the Court’s briefing schedule. 5 (See ECF Nos. 22; 23-1 at 2.) 6 In his second motion, Plaintiff seeks to compel further responses to RFP Nos. 58, 7 59, 67, 68, and 76 in Plaintiff’s Request for Production, Set Four, which was served on 8 December 14, 2022. (ECF Nos. 38; 42 at 5.) The requests at issue and responses thereto 9 are as follows: 10 RFP No. 58: Produce UNUM’s Quality Assurance Tool as identified in the 11 Statement of Work between Dane Street, LLC and UNUM (At LEUNG- 12 RFP50-002, paragraph 1.11) in effect in 2020 to the present. 13 Response: Defendant incorporates the General Objection above and further objects to this Request on the following grounds: (1) it seeks production of an 14 application, not a document; (2) it seeks information/documents which is/are 15 not relevant to the claims or defenses of any party to this action; (3) it is not proportional to the needs of the case pursuant to FRCP 26(b)(1) considering 16 the amount in controversy, the importance of the issues at stake in the action, 17 and the importance of the discovery sought in resolving the issues, particularly because it seeks information not used in the adjudication of Plaintiff’s claim; 18 (4) it is overbroad; and (5) it seeks confidential trade and business data or 19 other non-public, proprietary, or confidential documents or information protected from disclosure by applicable law. 20 21 RFP No. 59: Produce UNUM’s Quality Assurance Standards to Dane Street as identified in the Statement of Work between Dane Street, LLC and UNUM 22 in effect from 2020 to the present (At LEUNG-RFP50-003). 23 Response: Defendant incorporates the General Objection above and further 24 objects to this Request on the following grounds: (1) it seeks information/documents which is/are not relevant to the claims or defenses of 25 any party to this action; (2) it is overbroad in scope; (3) it is not proportional 26 to the needs of the case pursuant to FRCP 26(b)(1) considering the amount in controversy, the importance of the issues at stake in the action, and the 27 importance of the discovery sought in resolving the issues, particularly 28 because it seeks information not used in the adjudication of Plaintiff’s claim; 1 (4) it is overbroad; and (4) it seeks confidential trade and business data or other non-public, proprietary, or confidential documents or information 2 protected from disclosure by applicable law. 3 RFP No. 67: Produce all monthly monitoring reports between May 2020 and 4 January 2022 as identified in the Statement of Work (SOW) for Dedicated 5 Medical Officer Review Services between Dane Street, LLC and UNUM. 6 Response: Defendant incorporates the General Objection above and further objects to this Request on the following grounds: (1) it is vague and 7 ambiguous; (2) it seeks documents which are not relevant to the claims or 8 defenses of the parties to this litigation; (3) it is overbroad in scope and unduly burdensome; (4) it is not proportional to the needs of the case pursuant to 9 FRCP 26(b)(1) considering the amount in controversy, the importance of the 10 issues at stake in the action, and the importance of the discovery sought in resolving the issues, particularly because it seeks information not used in the 11 adjudication of Plaintiff’s claim; and (5) it seeks confidential trade and 12 business data or other non-public, proprietary, or confidential documents or information protected from disclosure by applicable law. 13 14 RFP No. 68: Produce all issues and Outcome Reports between May 2020 and Jan 2022 as identified in the Statement of Work (SOW) for Dedicated Medical 15 Officer Review Services between Dane Street, LLC and UNUM. 16 Response: Defendant incorporates the General Objection above and further 17 objects to this Request on the following grounds: (1) it is vague and ambiguous; (2) it seeks documents which are not relevant to the claims or 18 defenses of the parties to this litigation; (3) it is overbroad in scope and unduly 19 burdensome; (4) it is not proportional to the needs of the case pursuant to FRCP 26(b)(1) considering the amount in controversy, the importance of the 20 issues at stake in the action, and the importance of the discovery sought in 21 resolving the issues, particularly because it seeks information not used in the adjudication of Plaintiff’s claim; and (5) it seeks confidential trade and 22 business data or other non-public, proprietary, or confidential documents or 23 information protected from disclosure by applicable law. 24 RFP No. 76: Produce all UNUM Companies Supplier Reports between Dane 25 Street and UNUM as identified in the Statement of Work (SOW) for Dedicated Medical Officer Review Services between Dane Street, LLC and 26 UNUM. 27 Response: Defendant incorporates the General Objection above and further 28 objects to this Request on the following grounds: (1) it seeks documents which 1 are not relevant to the claims or defenses of the parties to this litigation; (2) it is overbroad in scope and unduly burdensome; (3) it is not proportional to the 2 needs of the case pursuant to FRCP 26(b)(1) considering the amount in 3 controversy, the importance of the issues at stake in the action, and the importance of the discovery sought in resolving the issues, particularly 4 because it seeks information not used in the adjudication of Plaintiff’s claim; 5 and (4) it seeks confidential trade and business data or other nonpublic, proprietary, or confidential documents or information protected from 6 disclosure by applicable law. 7 8 (ECF No. 38-3.) 9 After Defendant served responses to Plaintiff’s Request for Production, Set Four, on 10 January 30, 2023, the parties met and conferred. (ECF Nos. 38 at 11; 42 at 6.) The parties 11 thereafter lodged a Joint Discovery Statement addressing these RFPs on March 8, 2023. 12 (ECF No. 33.) The Court held an informal Discovery Conference on March 23, 2023. 13 (ECF Nos. 33, 34.) Despite the parties’ meet and confer efforts, they were unable to resolve 14 their dispute as to RFPs 58, 59, 67, 68, and 76, and filed the present motion in accordance 15 with the Court’s briefing schedule. (ECF No. 35.) 16 II. LEGAL STANDARD 17 The Federal Rules of Civil Procedure authorize parties to obtain discovery of any 18 nonprivileged information discoverable under Rule 26 if it is (1) relevant, and (2) 19 proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1), as amended 20 in 2015, provides that parties— 21 may obtain discovery regarding any nonprivileged matter that is relevant to 22 any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in 23 controversy, the parties’ relative access to the information, the parties’ 24 resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 25 26 Id. 27 Evidence must be “relevant to any party’s claim or defense” to fall within the scope 28 of permissible discovery. Id. The 2015 amendment to Rule 26(b) deleted the phrase 1 “reasonably calculated to lead to the discovery of admissible evidence” because it was 2 often misconstrued to define the scope of discovery and had the potential to “swallow any 3 other limitation.” Fed. R. Civ. P. 26(b)(1) advisory committee’s notes to 2015 amendment; 4 see also San Diego Unified Port Dist. v. Nat’l Union Fire Ins. Co. of Pittsburg, PA, No. 5 15CV1401-BEN-MDD, 2017 WL 3877732, at *1 (S.D. Cal. Sept. 5, 2017). The 6 amendment replaced this phrase with the statement that information “need not be 7 admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1) advisory committee’s 8 notes to 2015 amendment. 9 Information must also be “proportional to the needs of the case” to fall within the 10 scope of permissible discovery. Fed. R. Civ. P. 26(b)(1). When analyzing the 11 proportionality of a party’s discovery requests, a court should consider the importance of 12 the issues at stake in the action, the amount in controversy, the parties’ relative access to 13 the information, the parties’ resources, the importance of the discovery in resolving the 14 issues, and whether the burden or expense of the proposed discovery outweighs its likely 15 benefit. Id. 16 Under Federal Rule of Civil Procedure 34, a party may request the production of 17 documents within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). If a party fails to produce 18 documents pursuant to Rule 34, the propounding party may bring a motion to compel. See 19 Fed. R. Civ. P. 37(a). 20 III. DISCUSSION 21 A. Motion to Compel Request for Production, Set Three (ECF No. 23) 22 1. Parties’ Arguments 23 Plaintiff contends the primary dispute in the case is over whether his disability is due 24 to sickness or an accident—i.e., whether his cervical spine and lumbar spine disabilities 25 and impairments are due to diffuse degenerative disc disease or industrial injuries. (See 26 Compl. ¶ 38; see also ECF No. 23 at 2.) Defendant has determined that Plaintiff’s claimed 27 disability is due to sickness, while Plaintiff claims his disability is due to an accident. (ECF 28 1 No. 23 at 2.) This determination impacts Plaintiff’s recovery under his insurance policies 2 with Defendant. (See ECF No. 26 at 2.) 3 In determining that Plaintiff’s disability is due to sickness, Defendant relied on the 4 opinions of a third-party medical review company, Dane Street, LLC (“Dane Street”) and 5 the physicians it hired to render opinions. (ECF Nos. 23 at 2; 26 at 3–6.) Specifically, 6 Defendant relied on the opinions of Dane Street’s physicians, Marvin Friedlander, M.D. 7 and Steven Milos, M.D., who concluded that Plaintiff’s disability was due to a sickness, 8 and therefore no lifetime benefits were payable.1 (ECF Nos. 23 at 2; 26 at 3–6.) Plaintiff 9 contends that Dr. Friedlander is a Medical Director of Dane Street and therefore not truly 10 independent. (ECF No. 23 at 8.) Defendant disputes this contention, arguing that the title 11 of “Medical Director” is simply a “generic term used by utilization review companies for 12 doctors who review cases and is not Dane Street’s terminology.” (ECF No. 26 at 9; see 13 also ECF No. 26-2 at 39–40.) Dr. Friedlander reportedly performed reviews for two 14 referrals from Dane Street related to Defendant’s insureds between 2018 and 2021, while 15 Dr. Milos performed reviews for 739 referrals from Dane Street related to Defendant’s 16 insureds between 2018 and 2021. (ECF No. 38-1 at 2; see also ECF No. 23 at 10.)2 17 Plaintiff contends that Dr. Milos’ relationship with Dane Street was significant. (ECF No. 18 23 at 10.) 19 Plaintiff now seeks to compel discovery aimed at “uncovering [Defendant] and Dane 20 Street’s long-standing, ongoing and substantial relationship with each other, and 21 Dane Street’s long-standing, ongoing and substantial relationship with Dr. Friedlander and 22 Dr. Milos.” (Id. at 2.) Plaintiff argues the requested documents are necessary to support 23 24 25 1 Defendant also relied on the opinion of Philip Lahey, M.D., who performed the on- site physician review for Plaintiff’s claim. (ECF No. 26 at 3.) Dr. Lahey concurred with 26 the opinions of Dr. Milos and Dr. Friedlander. (Id. at 4–6.) 27 2 In a subsequent reply, Plaintiff represents that over an unspecified five-year period Dane Street retained Dr. Friedlander 2,191 times, and Dr. Milos 9,143 times, to perform 28 1 Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing and to 2 show that Defendant engaged in a biased investigation into Plaintiff’s claim. (Id. at 6.) 3 Plaintiff claims the financial information he requests will show bias in the form of 4 “financial incentives to render opinions favorable to [Defendant].” (Id. at 9.) Plaintiff 5 contends that “where an expert physician or the third-party vendor who supplies that 6 physician, has a longstanding relationship with or receives substantial compensation from 7 an insurance carrier, and renders opinions in their favor, such evidence is important in 8 accessing their bias and credibility.” (Id. at 10–11.) 9 Defendant opposes the requests at issue, arguing that Plaintiff seeks irrelevant, 10 overbroad, and burdensome information concerning Dane Street that is not probative of 11 bias. (ECF No. 26 at 2, 7.) Defendant contends that the “total amount paid to Dane Street 12 and the total number of reviews performed is of no consequence in the abstract” and 13 Plaintiff’s arguments are “conclusory and speculative.” (Id. at 2–3.) Defendant states that 14 it has already produced the amount of compensation paid to Dane Street for the medical 15 reviews performed on Plaintiff’s claim and Plaintiff has deposed Dr. Friedlander and 16 Dr. Milos and will depose Dane Street’s Rule Federal Rule of Civil Procedure 30(b)(6) 17 witness. (Id. at 7.) 18 2. Good Faith and Fair Dealing Claim 19 Under California law, “[e]very contract imposes upon each party a duty of good faith 20 and fair dealing in its performance and its enforcement.” Carma Devs. (Cal.), Inc. v. 21 Marathon Dev. Cal., Inc., 2 Cal. 4th 342, 371 (1992) (citation omitted). “The covenant of 22 good faith and fair dealing has ‘particular application’ to insurers because they are 23 ‘invested with a discretionary power affecting the rights of another.’” Amadeo v. Principal 24 Mut. Life Ins. Co., 290 F.3d 1152, 1161 (9th Cir. 2002) (quoting Carma Devs., 2 Cal. 4th 25 at 372). Under California law, to establish a breach of the implied covenant of good faith 26 and fair dealing, “a plaintiff must show: (1) benefits due under the policy were withheld; 27 and (2) the reason for withholding benefits was unreasonable or without proper cause.” 28 Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 2001) (citing Love v. Fire Ins. 1 Exch., 221 Cal. App. 3d 1136, 1151 (1990)). The reasonableness of an insurer’s conduct 2 is ordinarily a question of fact. Amadeo, 290 F.3d at 1161. 3 “Because the key to a bad faith claim is whether denial of a claim was reasonable, a 4 bad faith claim should be dismissed on summary judgment if the defendant demonstrates 5 that there was ‘a genuine dispute as to coverage.’” Feldman v. Allstate Ins. Co., 322 F.3d 6 660, 669 (9th Cir. 2003) (quoting Love, 221 Cal. App. 3d at 1151). “Where there is a 7 genuine issue of an insurer’s liability under a policy, a court can conclude that an insurer’s 8 actions in denying the claim were not unreasonable as a matter of law.” Hangarter v. 9 Provident Life & Acc. Ins. Co., 373 F.3d 998, 1010 (9th Cir. 2004) (citing Chateau 10 Chamberay Homeowners Ass’n v. Associated Int’l Ins. Co., 90 Cal. App. 4th 335, 347 11 (2001)). Though the existence of a “genuine dispute” will generally immunize an insurer 12 from liability, a finding that an insurer’s investigation of a claim was biased may preclude 13 a finding that the insurer was engaged in a genuine dispute, even if the insurer advances 14 expert opinions concerning its conduct. Id. An insurer’s bias may be shown through the 15 following factors: “(1) the insurer misrepresents the nature of the investigatory 16 proceedings; (2) the insurer’s employees lie during depositions or to an insured; (3) the 17 insurer dishonestly selects experts; (4) the insurer’s experts were unreasonable; or (5) the 18 insurer fails to conduct a thorough investigation.” Pyramid Techs., Inc. v. Hartford Cas. 19 Ins. Co., 752 F.3d 807, 823 (9th Cir. 2014) (citing Guebara, 237 F.3d at 996). 20 3. Analysis 21 Where the outcome of a case may turn on the credibility of the parties’ experts and 22 when a court is presented with diametrically opposed expert reports, bias or prejudice of 23 the experts becomes highly relevant. See Coffou v. Life Ins. Co. of N. Am., No. CV-19- 24 03120-PHX-DLR, 2020 WL 1502104, at *2 (D. Ariz. Mar. 11, 2020).3 In the ERISA 25 26 27 3 See also Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 901 (9th Cir. 2016) (noting that a “conventional approach[] to discrediting the testimony of retained experts whose 28 1 context, “several district courts in this circuit have held that the mere fact that a physician 2 receives compensation from a plan administrator for performing medical reviews is 3 insufficient by itself to be probative of bias.” Polnicky v. Liberty Life Assurance Co. of 4 Bos., No. C 13-1478 SI, 2014 WL 969973, at *2 (N.D. Cal. Mar. 5, 2014) (collecting 5 cases). Defendant cites several ERISA cases supporting this position. (ECF No. 26 at 7– 6 8.) However, this is not an ERISA case, where discovery is more limited. See Opeta v. 7 Nw. Airlines Pension Plan for Cont. Emps., 484 F.3d 1211, 1217 (9th Cir. 2007) 8 (explaining that on de novo review in an ERISA case extrinsic evidence may only be 9 considered in “limited circumstances”). Rather, the Court is applying the Rule 26 standard. 10 In cases where an expert or the third-party vendor who supplies that expert has a 11 long-standing relationship with, or receives substantial compensation income from 12 performing examinations for, a carrier or industry, and overwhelmingly renders opinions 13 in their favor, courts have determined that such evidence may be relevant under Rule 26 to 14 assessing that expert’s bias and credibility. See, e.g., Brzezinski v. Allstate Ins. Co., No. 15 11-CV-2373-CAB (DHB), 2012 WL 12869522, at *7 (S.D. Cal. Aug. 28, 2012) (finding 16 relevant discovery aimed at showing a biased relationship between an insurance company 17 and their forensic expert in a breach of the implied covenant of good faith and fair dealing 18 case); Rogers v. U.S. Navy, 223 F.R.D. 533, 535–36 (S.D. Cal. 2004) (finding discovery in 19 a Federal Tort Claims Act case aimed at showing bias of the government’s medical expert 20 to be relevant and proportional to the extent it was sufficient to allow the plaintiff to 21 effectively cross-examine the expert at trial regarding his opinions and the financial motive 22 or bias that may have influenced those opinions); Behler v. Hanlon, 199 F.R.D. 553, 557 23 (D. Md. 2001) (noting in a personal injury case that “the fact that an expert witness may 24 25 an expert in support of a party and the amount of compensation received”); Fed. R. Civ. P. 26 26(a)(2)(B)(v)–(vi) (requiring retained experts to provide a written report containing, inter 27 alia, “a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition,” and “a statement of the compensation to be paid for the 28 1 have a 20-year history of earning significant income testifying primarily as a witness for 2 defendants, and an ongoing economic relationship with certain insurance companies, 3 certainly fits within recognized examples of bias/prejudice impeachment, making such 4 facts relevant . . . and placing it squarely within the scope of discovery authorized by Rule 5 26[]” (internal citations omitted)).4 6 Here, the Court finds that the information sought by Plaintiff is relevant under 7 Rule 26. Although not necessarily sufficient by itself to suggest an inherent conflict or 8 bias, Plaintiff is entitled to the information, which he may seek to use alone or in 9 conjunction with additional information, to make an argument for bias.5 The Court further 10 finds the request, as modified by Plaintiff, to be proportional to the needs of the case. To 11 address any concerns regarding burden or privacy, Plaintiff has agreed to accept a 12 declaration or affidavit under oath specifying “the total number of times (in yearly or 13 monthly summaries) that [Defendant] hired Dane Street” and “the total dollar amount that 14 [Defendant] paid to Dane Street from 2016–2021 (in yearly or monthly summaries) for 15 services provided to [Defendant].” (ECF No. 23 at 6.) The existing Protective Order in 16 this case should allay any confidentiality or privacy concerns. (See ECF Nos. 23 at 6; 14.) 17 The Court further finds that the requested time frame is appropriate. See Silgan 18 Containers v. Nat’l Union Fire Ins., No. C 09-05971 RS LB, 2011 WL 1058861, at *6–7 19 20 21 4 cf. Demer, 835 F.3d at 901–04 (finding in the ERISA context the fact that the defendant insurance company’s independent physician consultants have performed a 22 significant number of reviews for the defendant and have received significant 23 compensation for their services raises the inference of a conflict of interest); Nolan v. Heald Coll., 551 F.3d 1148, 1152, 1154 (9th Cir. 2009) (stating in the ERISA context that 24 evidence an independent medical review company and its physicians received substantial 25 work and monies from the defendant insurance company in the years preceding and including the plaintiff’s benefits denial at least “permitted an inference” that the company 26 and physicians were biased in favor of the insurer). 27 5 The Court notes that the information sought “need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Defendant may argue against its admissibility 28 1 (N.D. Cal. Mar. 23, 2011) (finding five years of financial information about expert witness 2 services on behalf of insurance companies relevant to bias or prejudice to be appropriate); 3 Behler, 199 F.R.D. at 562 (finding five years of financial information attributable to 4 performing expert witness services on behalf of insurance companies to be appropriate). 5 Defendant argues that the requests are overbroad, and Plaintiff should be limited to only 6 2020 and 2021, but Defendant fails to establish that producing the summaries for the 7 greater time frame would be unduly burdensome. (See ECF No. 26 at 9.) 8 Accordingly, as set forth above, the Court GRANTS Plaintiff’s motion to compel 9 Defendant to provide further responses to Plaintiff’s Request for Production of Documents, 10 Set Three. (ECF No. 23.) Specifically, per the compromise offered by Plaintiff, Defendant 11 shall produce information indicating the total number of times (in yearly or monthly 12 summaries) that Defendant hired Dane Street and the total dollar amount that Defendant 13 paid to Dane Street from 2016–2021 (in yearly or monthly summaries) for services 14 provided to Defendant. No further production is required in response to these requests. 15 B. Motion to Compel Request for Production, Set Four (ECF No. 38) 16 1. Parties’ Arguments 17 Pursuant to the Protective Order in this case, Defendant produced the Statement of 18 Work, Dedicated Medical Officers Review Services (“SOW”), entered between Defendant 19 and Dane Street. (ECF No. 38 at 4.) Plaintiff contends that the documents he seeks are all 20 “referenced” in the SOW. (Id. at 2.) As Dr. Friedlander conducted a “Dedicated Medical 21 Officer” review of Plaintiff’s medical records for Dane Street, Plaintiff argues the 22 requested documents are “relevant to determine whether Dr. Friedlander’s review was 23 conducted in accordance with [the SOW],” and what role the potential bias of Defendant, 24 Dane Street, Dr. Friedlander, and Dr. Milos played in the allegedly wrongful determination 25 that Plaintiff’s disability was due to a sickness and not an accident. (Id.) 26 Plaintiff further argues that the documents he seeks, which he contends are 27 “embedded” in the SOW, would reveal whether the checks and balances on Defendant and 28 Dane Street were being followed. (Id. at 3.) Plaintiff notes that under Dane Street’s 1 contracts with Defendant, Dane Street is required to conduct background checks on the 2 medical reviewers it hires to make sure the physician reviewers have “no adverse action 3 taken by a regulatory agency or licensing authority.” (Id.) However, apparently 4 unbeknownst to Defendant, Dr. Friedlander had his medical license suspended by the New 5 Jersey State Board of Medical Examiners on November 24, 2014, “for a period of three (3) 6 years [beginning on December 11, 2014], the entirety to be stayed and served as a period 7 of probation.”6 (ECF 38-4 at 19; see also ECF Nos. 26 at 9; 26-2 at 28, 33–34; 38 at 9.) 8 Plaintiff further argues that it needs the requested documents, which include Dane 9 Street’s “Quality Assurance Tool,” “Quality Assurance Standards,” and “Monitoring and 10 Outcome Reports,” to learn how Defendant and Dane Street “conduct the business of 11 physician reviews and information analysis.” (ECF No. 38 at 3.) As opposed to a fishing 12 expedition, Plaintiff argues its requests are narrowly tailored to the issue of whether 13 Defendant conducted its claims investigation in bad faith. (Id.) Plaintiff contends the 14 documents “go to the bad faith of [Defendant] (by hiring Dane Street) in obtaining and 15 offering medical opinions that are biased or not supported by the facts, but written to 16 support a denial.” (Id.) Plaintiff argues that Defendant’s boilerplate objections are 17 improper and should be stricken. (Id. at 5–7.) 18 In its opposition, Defendant argues that Plaintiff seeks “irrelevant, overbroad and 19 non-proportional discovery pertaining to certain purported reports that are referenced in 20 the Pilot Services Agreement entered into with Dane Street[.]” (ECF No. 42 at 7.)7 21 Defendant contends that the requested documents are not attached to, nor part of, the Pilot 22 Services Agreement and argues that Plaintiff is speculating as to their relevance. (Id.) 23 Defendant further argues that “Plaintiff is trying to manufacture bias” and has not met his 24 burden of demonstrating how the requested documents are relevant to bias. (Id. at 7–8.) 25 26 27 6 Defendant referred Plaintiff’s file to Dr. Friedlander on or about May 14, 2021. (ECF No. 38 at 8–9.) 28 1 Specifically, Defendant argues that Plaintiff has made no effort to describe the context of 2 these terms or documents and demonstrate how they are relevant to bias. (Id. at 8–9.) 3 Defendant notes that Plaintiff has already taken the depositions of Defendant’s 4 claims examiner and Rule 30(b)(6) witness on Plaintiff’s claim, as well as the depositions 5 of Dr. Lahey, Dr. Friedlander, and Dr. Milos. (Id. at 2–3, 10.) Defendant has further 6 provided the Dane Street invoices for the work performed on Plaintiff’s claim, as well as 7 Dane Street contract documents. (Id. at 3, 9.) Plaintiff has also noticed the deposition of 8 Dane Street’s Rule 30(b)(6) witness and received documents from Dane Street’s subpoena 9 production. (Id. at 9–10.) 10 2. Analysis 11 As set forth above, evidence of bias is relevant to Plaintiff’s breach of the implied 12 covenant of good faith and fair dealing claim. However, Plaintiff has not established the 13 relevance to his claim of the documents requested in RFP Nos. 58, 59, 67, 68, and 76. 14 Evidence must be “relevant to any party’s claim or defense” to fall within the scope of 15 permissible discovery. Fed. R. Civ. P. 26(b)(1). Plaintiff asks the Court to strike 16 Defendant’s “boilerplate” objections, which include relevance, but Plaintiff does not first 17 establish the relevance of Defendant’s “Quality Assurance Tool,” “Quality Assurance 18 Standards,” “monthly monitoring reports,” “issues and Outcome Reports,” and “UNUM 19 Companies Supplier Reports.” (See ECF No 38-3.) 20 “The party seeking to compel discovery has the burden of establishing relevance.” 21 Petconnect Rescue, Inc. v. Salinas, No. 20-CV-00527-LL-DEB, 2022 WL 1322854, at *2 22 (S.D. Cal. May 3, 2022) (citing Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 23 1995)). Only once the propounding party establishes that the requests at issue seek relevant 24 and proportional information, does the burden shift to the party resisting discovery to show 25 that discovery should not be allowed, and clarify, explain, and support its objections. 26 Cancino Castellar v. McAleenan, No. 17-cv-491-BAS-AHG, 2020 WL 1332485, at *4 27 (S.D. Cal. Mar. 23, 2020) (citation omitted). 28 /// 1 Here, Plaintiff does not indicate what type of information is included in the requested 2 documents and the relevance of such information. Plaintiff simply argues that the 3 documents are relevant because they are “all referenced in the [SOW]” and, based on 4 Plaintiff’s current knowledge, address “how [Defendant] and Dane Street conduct the 5 business of physician reviews and information analysis.” (ECF No. 38 at 2–3.) Plaintiff 6 does not provide the context of these items in the SOW, nor does Plaintiff explain how that 7 context demonstrates the relevance of the documents to determining whether Dane Street 8 was biased in its medical evaluations. For example, Defendant states that the “issues and 9 outcome report” refers to “completed inventory.” (ECF No. 42 at 9.) The parties 10 purportedly engaged in meet and confer efforts during which Plaintiff learned this 11 information, but Plaintiff does not address why completed inventory reports are relevant to 12 establishing bias. Moreover, Defendant states that the term “Quality Assurance Standards” 13 is not defined in the Pilot Services Agreement and the term “monthly monitoring report”8 14 does not even appear. (Id.) 15 Plaintiff further argues that the information is relevant to determining whether 16 Dr. Friedlander’s review was conducted in accordance with the SOW. (ECF No. 38 at 2.) 17 However, Plaintiff does not adequately explain how the requested documents set a standard 18 or would show whether Dr. Friedlander complied with such standards. According to 19 Defendant, the requested documents are not attached to, nor part of, the SOW, which would 20 21 22 23 8 In his motion, Plaintiff states that the term “monitoring reports” is identified and/or 24 used in the SOW. (ECF No. 38 at 6.) Defendant states that the terms “monthly monitoring 25 report,” “monthly monitoring,” and “monitoring report” do not appear in the Pilot Services Agreement, including the SOW. (ECF No. 42 at 9.) The Court cannot resolve this dispute 26 as no party submitted a copy of the SOW. However, as noted above, it is Plaintiff’s burden 27 to establish relevance. See Petconnect Rescue, Inc., 2022 WL 1322854, at *2. Despite having the burden of proof, Plaintiff opted against providing the SOW to the Court or 28 1 || suggest that they do not contain standards Dr. Friedlander was required to meet. (ECF No. 2 ||42 at 7.)° 3 In sum, Plaintiff has the burden of proof as to relevance and ultimately failed to 4 || provide the Court with the information and arguments necessary to sustain that burden of 5 ||proof as to the requested documents. For the foregoing reasons, the Court DENIES 6 || Plaintiff's motion to compel Defendant to provide further responses to Plaintiff’s Request 7 || for Production of Documents, Set Four. (ECF No. 38.) 8 CONCLUSION 9 For the foregoing reasons, IT IS HEREBY ORDERED: 10 1. Plaintiff's motion to compel Defendant to provide further responses to 11 || Plaintiff's Request for Production of Documents, Set Three (ECF No. 23) is GRANTED, 12 set forth above. Defendant shall produce information indicating the total number of 13 |/times (in yearly or monthly summaries) that Defendant hired Dane Street and the total 14 dollar amount that Defendant paid to Dane Street from 2016-2021 (in yearly or monthly 15 ||summaries) for services provided to Defendant within seven (7) days of the date of this 16 ||Order. Defendant shall produce the information subject to the Protective Order (ECF No. 17 || 14) in this case. 18 2. Plaintiff's motion to compel Defendant to provide further responses to 19 || Plaintiff's Request for Production of Documents, Set Four (ECF No. 38) is DENIED. 20 Dated: June 15, 2023 - 21 Balladt n. Jill L. Burkhardt 22 ited States Magistrate Judge 23 24 || 26 |Io In his reply, Plaintiff provides little clarity. (ECF No. 44.) Plaintiff simply argues 27 |\that “claims manuals, standards and guidelines” are relevant in bad faith disputes and 28 asserts without further explanation or analysis that the requested documents set the standard that Dane Street and Dr. Friedlander were required to follow. (/d. at 2-3.) 17