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Anatomy — continued from Previous Page


client’s right to obtain discovery of an insurer’s claim manual or to depose a doctor who reviewed the insured’s file. (See, Glenfed Develop.Corp v. Sup. Ct. (1997) 53 Cal.App.4th 1113, 1118.) Not so in an ERISA case. In this case, it took two motions to compel and a discovery proceeding in New York City before plain- tiff could obtain relevant excerpts of the claim manual and documents pertaining to the relationship between the insurer and the reviewing physician. This discovery proved to be invalu-


able. It showed that although the insurer had specific forms which could have been utilized to assess the claimant’s disability, it failed to use them or provide them to plaintiff during the claim process. The discovery also led to a deposition which revealed that the insurer’s reviewing physician was not familiar with the diag- nostic label of plaintiff’s disease at the time of his review. Therefore, the physi- cian could not possibly have appreciated the description of the severity of plaintiff’s symptoms when he reviewed the medical office notes pertaining to her treatment. • Issue No. 3: Confidentiality of the claim documents


Defendant claimed in the discovery


disputes that certain documents were trade secrets, but never submitted any evi- dence regarding the trade secret status of the documents in the discovery proceed- ings. Nevertheless, the magistrates ordered the documents to be produced


under blanket protective orders. The pro- tective orders were in place at the time of trial. As they required, the plaintiff sub- mitted the trial evidence to the court with an application to place the documents under seal. In reviewing plaintiff’s appli- cation, the district court determined, under the “compelling need” standard, that the documents were not to be shield- ed from public review. (See, Pintos v. Pacific Creditors Ass’n. (9th Cir., 2007) 504 F.3d 792, 801-802.) As a result, the court ordered plaintiff to re-file the documents in the public domain. This sparked a flurry of briefing by


defendant. At the time that the docu- ments were re-filed by plaintiff, defendant filed its own application to place the doc- uments under seal. The court rejected defendant’s application and confirmed its prior ruling, that once documents are filed with a court in connection with a dispositive proceeding, a litigant must demonstrate “compelling need,” rather than “good cause” under Federal Rules of Civil Procedure, rule 37 to keep the docu- ments from public scrutiny. No such need had been demonstrated. Shortly thereafter, plaintiff won her


court case and received a sizeable judg- ment in her favor: over $350,000, plus entitlement to future benefits for so long as she remains disabled under the terms of the plan. Defendant did not appeal that judgment, but rather, pursued its fight to keep its claim documents


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60— The Advocate Magazine JUNE 2011


confidential. The insurer was so con- cerned about the public access to these documents that it filed an appeal to the Ninth Circuit and submitted an “emer- gency motion” to stay the district court’s order denying defendant’s request to place the documents under seal. Was the insurer concerned that other


insurers would use its confidential “trade secrets” for their own competitive advan- tage? Hardly. In connection with the five motion proceedings regarding the pro- duction and sealing of the documents, only two half-hearted declarations were ever filed by defendant regarding the alleged trade-secret status of these docu- ments. Even those declarations were inad- equate for they only addressed two of the approximately ten documents in dispute. As to the remaining documents, there was never any evidence filed with the court that the documents were alleged to be “trade secrets.” So, why was defendant so concerned about public access to these documents? The commercial harm claimed by


defendant was that the documents might benefit other ERISA litigants in their attempts to recover benefits. Defendant’s emergency motion stated: Thus, it is fair to conclude that Appellee’s counsel intends to, if she has not already done so, utilize the docu- ments for the improper purpose of causing Appellant commercial harm by notifying other attorneys who represent insureds in similar types of suits of the availability of these documents in the public domain even though Appellee is well aware of the appeal of this issue.


Remember, one of the keys to the


insurers’ success is that there is very little scrutiny permitted of their process. The carrier was concerned that other ERISA litigants would also benefit from these documents. The Ninth Circuit was not persuaded by the carrier’s “emergency motion” and the motion was denied. However, the insurer’s appeal of the dis- trict court’s order regarding the confiden- tiality of the documents is still pending. So, for the time being, we can’t say more about the case.


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