Depositions
The Scope of Discovery in ERISA Actions Post-Glenn
Elliott Andalman Richard P. Neuworth & Michelle Amick
P
rior to the Supreme Court issuing its decision in Glenn v. Metropolitan Life Ins. Co.,1
typically no under ERISA.2
depositions were taken in appeals to federal court In fact, federal courts held that there was
generally no discovery in these cases, which were decided based solely on a review of the administrative record. ERISA appeals most often arise out of the denial of
individual claims for disability, health, life insurance or pension benefits arising out of Plans offered by employers. Tese claims only come to Court following a mandatory administrative appeal in which the claimant, the Plan beneficiary, has an opportunity to submit evidence in support of his/her claim. Most frequently the claims involve the denial or termination of long term disability benefits. Te issue of what discovery, including depositions, is
now permitted in ERISA appeals to federal court has very significant practical implications for lawyers handling these claims and for their clients. Te Supreme Court’s 2008 game changing decision in
Glenn, directs lower courts to consider the effects of bias and financial self-interest as a factor in determining whether a conflict of interest exists for the ERISA Plan Administrator3
.
Tus, attorneys and courts must now wrestle with the question of what depositions, and what discovery, generally, is permissible. Unfortunately, the Supreme Court failed to provide any
1 554 U.S. 105, 128 S.Ct. 2343 (2008). 2 See generally 29 U.S.C. § 1132. 3 Glenn, 554 U.S. 105, 128 S.Ct. 2343, 2350 (2008).
concrete guidance to lower Courts. In fact, the Supreme
Court in Glenn admonished readers that a conflict of interest should not lead to “special burden-of-proof rules, or other special procedural or evidentiary rules, and focused narrowly upon the evaluator/payor conflict.”4
lawyers have successfully pursued discovery,
Nonetheless, Plaintiff ’s including
depositions, concerning the issues opened up by Glenn. Te dearth of explanation from the Supreme Court
has led to increasing differences among federal courts as they attempt to clarify the breadth of permissible discovery. However, it is clear that at least some discovery regarding a conflict of interest is permissible.5 Life Ins. Co.,6
In the Hays v. Prudential decision the District Court in Kentucky found,
“Tis Court is persuaded that after Glenn, at least some discovery is appropriate in ERISA denial of benefits cases involving a conflict of interest.”7 Inc.,8
Similarly, in Bird v. GTX, the Court reported, “Te practical implication of this
holding in [Glenn] is to resolve the ‘threshold or no threshold’ debate in favor of the ERISA plaintiff… [so that when] a conflict of interest exists…limited discovery as to the conflict is warranted.”9
Despite the general expansion of discovery
into the conflict of interest issue, a few courts have taken the opposite route, and have refused to allow discovery on matters outside of the record unless there are procedural challenges to
the administrative decisions.10
The Claims Reviewer A contentious area related to the scope of discovery in
ERISA cases is whether the background of the professional
claims reviewers is a permissible area of discovery. Te Court in 4 Id. 5 Hays v. Prudential Life Ins. Co. of Am., 623
F.Supp.2d 840, 843 (
E.D.Ky. 2008); Bird v. GTX, Inc., 2009 WL 3839478, 2 (W.D.Tenn. Nov. 13, 2009) .
6 Hays v. Prudential Life Ins. Co. of Am., 623
F.Supp.2d 840, 843 (
E.D.Ky. 2008). 7 623
F.Supp.2d 840, 843 (
E.D.Ky. 2008). 8 WL 3839478, 2 (W.D.Tenn. Nov. 13, 2009). 9 Bird v. GTX, Inc., 2009 WL 3839478, 2 (W.D.Tenn. Nov. 13, 2009). 10 Johnson v. Connecticut General Life Ins. Co., 324 Fed.Appx. 459, 466 (6th Cir. 2009).
Trial Reporter / Winter 2011 51
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