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Neiheisel v. AK Steel Corp.

February 1, 2007

GARY NEIHEISEL, PLAINTIFF
v.
AK STEEL CORPORATION, DEFENDANT



The opinion of the court was delivered by: (hogan, M.J.)

(BECKWITH,J.)

ORDER

By previous Order, this Court permitted limited discovery in this ERISA case. Specifically, the Court permitted discovery relative to the issue of bias of the consultant physician, Dr. Howard. To be even more specific, the Court permitted Plaintiff to discover: (1) the person or persons responsible for selecting Dr. Howard, (2) the basis upon which the selection was made, (3) communications between AK Steel and Dr. Howard before the decision was made, (4) the materials presented to Dr. Howard and (5) who determined the selection of materials provided to Dr. Howard. Some of the above items may have either been within the administrative record or have been disclosed to Plaintiff subsequently.

An informal and telephonic discovery conference took place on January 30, 2007. Plaintiff now complains that Defendant has refused to disclose any documents generated between February 17 and April 21, 2005. Apparently, Plaintiff seeks a series of e-mails between representatives of Defendant and its in-house counsel, Mr. Rogers. Plaintiff cites the Court to 29CFR 2560.503-1J3 and M8 as authority for the discovery he seeks. These regulations establish that the claimant is entitled to copies of all documents relevant to his claim for benefits and that a document is considered relevant if it was submitted, considered or generated during the claims process and certainly relevant if it was relied upon when the decision was reached.. Defendant cites no authority but argues that it has previously made voluminous discovery and "enough is enough."

To the extent that the discovery sought will illuminate any of the above five categories, the attorney-client privilege must take a subordinate position to the fiduciary obligations that the plan administrator owes to the plan participant. Defendant need not produce all the documents generated during the disputed period, just those impacting the five categories listed above or the above Federal Regulations.

January 31, 2007

Timothy S. Hogan United States Magistrate Judge

20070201

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