United States District Court, S.D. Ohio, Eastern Division
MUKESH R. SHAH, M.D., Plaintiff,
METROPOLITAN LIFE INSURANCE COMPANY, et al., Defendants.
L. Graham Judge
OPINION AND ORDER
ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion to
Compel Discovery Responses (“Motion to Compel”)
(ECF No. 49), Defendant The Paul Revere Life Insurance
Company's (“Paul Revere”) Brief in Opposition
to Motion of Plaintiff to Compel Discovery Responses (ECF No.
51), and Plaintiff's Reply in Support of Motion to Compel
(ECF No. 52). For the reasons that follow, Plaintiff's
Motion to Compel is GRANTED IN PART and DENIED IN
1991, New England Mutual Life Insurance Company (“New
England Mutual”) issued an individual policy of
disability income insurance to Plaintiff (“the
Policy”). (Amended Complaint, ¶ 5, ECF No. 13
(“Am. Compl.”).) Defendant, Metropolitan Life
Insurance Company (“Met Life”), assumed the
obligations under the terms of the Policy. (Id. at
the Policy, Defendants are obligated to pay to Plaintiff, an
interventional cardiologist, benefits for loss due to
“injury” or “sickness” until
Plaintiff reaches the age of 65 (“the Policy”).
(Amended Complaint, ¶¶ 5, 6, 9-10, ECF No. 13
(“Am. Compl.”).) Subject to certain terms and
conditions, the rider under the Policy obligates Defendants
to pay a maximum monthly amount due to “injury, ”
but requires Defendants to pay Plaintiff only “a
fraction” of that amount if Plaintiff's disability
is due to “sickness.” (Id. at
¶¶ 11, 21.)
around September 12, 2013, Plaintiff became disabled due to
pain in his shoulders and cervical spine. (Id. at
¶¶ 16-17.) Thereafter, Plaintiff gave notice of his
condition and claim under the Policy. (Id. at
¶¶ 18-19.) On June 5, 2014, Defendants notified
Plaintiff that his claim for Total Disability Benefits was
approved due to cervical spine neuropathy and shoulder pain.
(Id. at ¶ 20.) On December 1, 2014, Defendants
notified Plaintiff that they classified his condition as a
“sickness” rather than an “injury, ”
significantly decreasing the monthly benefits Plaintiff was
to receive. (Id. at ¶¶ 21-23.) After
Plaintiff requested a review of that decision by an Appeals
Specialist, Defendants notified Plaintiff on May 6, 2015,
that the decision that his condition was due to a sickness
was correct. (Id. at ¶ 24.)
November 28, 2016, Plaintiff filed the instant action,
alleging that Defendants wrongfully determined that
Plaintiff's disability was due to sickness in order to
avoid paying Plaintiff the maximum monthly amount and
asserting claims for breach of contract, declaratory
judgment, and bad faith. (ECF No. 13.) On January 25, 2017,
the Court issued a scheduling order pursuant to the
provisions of Federal Rule of Civil Procedure 16(b) and
ordered, inter alia, that all discovery be completed
by June 2, 2017, and that dispositive motions be filed by
June 30, 2017. (ECF No. 10.) Plaintiff filed the Amended
Complaint on March 10, 2017. (ECF No. 13.) The Court later
denied Defendants' requests to bifurcate the merits of
Plaintiff's claims for trial, but by agreement of the
parties, a separate trial phase for punitive damages will be
held should the jury find that punitive damages are
appropriate. (ECF No. 34 at 4.) The Court also denied
Defendants' request to bifurcate discovery. (ECF No. 41.)
The deadlines for completing discovery and for filing
dispositive motions were ultimately extended to February 15,
2018, and March 15, 2018, respectively. (ECF No.
December 27, 2016, Plaintiff served his First Set of Combined
Requests for Admissions, Interrogatories, and Requests for
Production of Documents. (ECF No. 49-1.) Defendants served
responses and objections to the first set of discovery on
February 7, 2017. (ECF Nos. 49-2, 49-3, 49-4.) On April 7,
2017, Plaintiff sent a letter to defense counsel, advising
that Defendants' discovery responses and/or objections
were deficient. (ECF No. 49-5.) On May 25, 2017, Plaintiff
again advised via letter that Defendants' discovery
responses were not sufficient. (ECF No. 49-6.) On June 5,
2017, Defendants responded to the letters of April 7, 2017,
and May 25, 2017, contending that its discovery responses
were sufficient and advising that they “would be more
than happy to discuss any of these issues if need be.”
(ECF No. 51-1 at PAGEID # 451.)
responded to Plaintiff's Second Set of Requests for
Production of Documents on June 12, 2017. (ECF No. 49-7.)
Defendants later responded to Plaintiff's Third Set of
Requests for Production of Documents on October 10, 2017.
(ECF No. 49-8.) On November 15, 2017, Defendants responded to
two letters sent by Plaintiff regarding the sufficiency of
Defendants' discovery responses and objections. (ECF No.
January 24, 2018, Plaintiff filed his Motion to Compel,
seeking an order compelling responses or supplemental
responses to thirteen different discovery requests and
representing that he has exhausted all extrajudicial efforts.
(ECF No. 49.) Defendants have opposed the Motion to Compel
(ECF No. 51), and with the filing of Plaintiff's Reply
(ECF No. 52), this matter is ripe for resolution.
Rule of Civil Procedure 37 authorizes a party to file a
motion for an order compelling discovery if another party
fails to respond to discovery requests if the party moving
for an order compelling disclosure or discovery
“include[s] a certification that the movant has in good
faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to
obtain it without court action.” Fed.R.Civ.P. 37(a);
see also S.D. Ohio Civ. R. 37.1 (“[M]otions .
. . relating to discovery shall not be filed in this Court .
. . unless counsel have first exhausted among themselves all
extrajudicial means for resolving the differences.”).
Plaintiff attaches a certification, averring that counsel has
exhausted all extrajudicial efforts to resolve the discovery
disputes. (Affidavit of J. Stephen Teetor, ECF No. 49-9.)
Defendants, however, deny that Plaintiff has exhausted all
extrajudicial efforts, contending that Plaintiff
“conveniently omits” Defendants' letters of
May 25, 2017, and November 15, 2017, in his recitation of the
parties' discovery communication. (ECF No. 51 at 3-4
(citing ECF Nos. 51-1, 51-2)). Defendants contend that
Plaintiff never responded to their letters and that the
Motion to Compel “blindsided” them. (Id.
at 4.) Defendants therefore take the position that the Motion
to Compel should be denied because Plaintiff did not comply
with Local Rule 37.1 and the Court's prior Order (ECF No.
42 (advising that the parties must comply with Federal Rule
of Civil Procedure 37 and Local Rule 37.1 before filing a
discovery-related motion)). (ECF No. 51 at 7-8.) Plaintiff
insists in reply that he did not intentionally omit
Defendants' letters in his recitation in the Motion to
Compel, arguing that Defendants' reliance on these
letters elevates “form over substance” because
“[i]n no way did Defendants respond any more
meaningfully in their letters than they did in their
discovery responses, Defendants again simply maintained their
objections or pointed Plaintiff to thousands of documents in
response to specific discovery requests.” (ECF No. 52
argument is not well taken. Plaintiff never responded to
Defendants' letters of June 5, 2017, and November 15,
2017. Accordingly, the record reflects that Plaintiff could
have done more to resolve, or narrow the scope, of the
present discovery disputes. While Plaintiff now insists that
these letters were not “meaningful” responses
and the parties had reached impasse, he still does not
explain why he did not file a motion to compel at those times
instead of waiting months until shortly before the discovery
deadline to file the Motion to Compel. Nevertheless, in light
of the current posture of the litigation and under the
circumstances of this particular case, the Court will address
the merits of the Motion to Compel. The parties, however, are
reminded that the Court and Civil Rules no longer countenance
drive-by efforts to resolve discovery disputes. The Court
expects purposeful negotiation and meaningful cooperation
among counsel in order “to secure the just, speedy, and
inexpensive determination of every action and
proceeding.” Fed.R.Civ.P. 1.
Scope of Discovery and Federal Rules of Civil Procedure 26,
33, and 34
the scope of discovery is within this Court's discretion.
Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th
Cir. 1998). As the United States Court of Appeals for the
Sixth Circuit has recognized, “[t]he scope of discovery
under the Federal Rules of Civil Procedure is traditionally
quite broad.” Lewis v. ACB Bus. Serv., Inc.,
135 F.3d 389, 402 (6th Cir. 1998).
Rule of Civil Procedure 26(b) identifies the acceptable scope
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to 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 controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
Fed. R. Civ. P. 26(b)(1); see also Fed. R. Civ. P.
33(a)(2) (“An interrogatory may relate to any matter
that may be inquired into under Rule 26(b).”), 34(a)
(“A party may serve on any other party a request within
the scope of Rule 26(b)[.]”). In considering the scope
of discovery, the Court may balance Plaintiff's
“right to discovery with the need to prevent
‘fishing expeditions.'” Conti v. Am. Axle
& Mfg., Inc., 326 Fed.Appx. 900, 907 (6th Cir. 2009)
(quoting Bush, 161 F.3d at 367).
movant bears the initial burden of showing that the
information is sought is relevant.” Prado v.
Thomas, No. 3:16-cv-306, 2017 WL 5151377, at *1 (S.D.
Ohio Oct. 19, 2017) (citing Gruenbaum v. Werner, 270
F.R.D. 298, 302 (S.D. Ohio 2010)). If the movant makes this
showing, “then the burden shifts to the non-movant to
show that to produce the information would be unduly
burdensome.” Id. (citing O'Malley v.
Naph Care, Inc., 311 F.R.D. 461, 463 (S.D. Ohio 2015));
see also Fed. R. Civ. P. 26(b)(1) advisory
committee's note to 2015 amendment (stating that a party
claiming undue burden or expense “ordinarily has far
better information-perhaps the only information-with respect
to that part of the determination” and that a
“party claiming that a request is important to resolve
the issues should be able to explain the ways in which the
underlying information bears on the issues as that party
Court now considers in turn each category of requested
information identified in the Motion to Compel.
“Similar claims files containing decisions on
‘sickness' versus ‘injury'” (ECF
No. 49 at 5 (citing First Set of Requests for Production No.
6; Second Set of Requests for Production Nos. 3, 4; Third Set
of Requests for Production No. 7))
to Plaintiff, “[t]he core dispute essentially turns on
Plaintiff's First Requests for Production of Documents
No. 6[.]” (ECF No. 49 at 3.) This request and
Defendants' response provide as follow:
SET OF] REQUEST [FOR PRODUCTION NO.] 6:
Produce the complete claims files of the insureds that you
have determined to have suffered an “injury”
rather than a “sickness, ” or a
“sickness” rather than an “injury”
for the last ten years.
In addition to the General Objections and Responses,
Defendant objects to this Request on the following grounds:
(1) it is overly broad and unduly burdensome, particularly
with regard to time and scope; (2) “the burden or
expense of the proposed discovery outweighs its likely
benefit.” Fed. R Civ. P. 26(b)(2)(C)(iii); (3) it seeks
documents which are neither relevant to the claims or
defenses of the parties to this litigation; (4) it seeks
documents which constitute or contain confidential,
proprietary documents and/or trade secrets; (5) seeks
documents protected by the attorney-client and/or attorney
work-product privileges; seeks documents protected by third
parties' right of privacy; and (6) under the authority of
State Farm v. Campbell, 123 S.Ct. 1513 (2003),
improperly seeks information regarding alleged conduct that
bears no relation or nexus to the harm allegedly suffered
and/or improperly seeks documents pertaining to alleged
(ECF No. 49-2 at 7.)
other interrogatories, requests for production of documents,
and Defendants' responses also related to this category
are as follow:
[SECOND SET OF] REQUEST [FOR PRODUCTION NO.] 3: Produce all
of Dr. Jerry Beavers' claims opinions regarding injury
and sickness determinations provided for Defendants from
January 2013 onward, with the claimants' names redacted.
Defendant objects to this request on the ground that it seeks
documents that are not relevant to any party's claims or
defenses in this case, nor proportional to the needs of the
case. This action relates to the manner in which
plaintiff's disability claim was handled. The reports or
opinions of Dr. Jerry Beavers that relate to other insureds
or other claims are not relevant to the issues in this case.
Defendant further objects that the request is overbroad in
scope, and that searching for the requested documents would
be time-consuming, unduly burdensome and oppressive.
Defendant also objects that pursuant to State Farm v.
Campbell, 123 S.Ct. 1513 (2003), the requested discovery
is improper because it seeks information pertaining to
“out-of-state” conduct that bears no relation or
nexus to the harm allegedly suffered by plaintiff.
In addition, Defendant objects on grounds that the request
seeks documents that contain personal, private information
regarding other insureds, who have a right to privacy.
Finally, Defendant objects on the ground and to the extent
that the request seeks documents that constitute or contain
confidential and/or proprietary business information.
Defendant is withholding responsive documents based on the
objections stated above.
(ECF No. 49-7 at 4.)
[SECOND SET OF] REQUEST [FOR PRODUCTION NO.] 4: Produce all
injury and sickness claims determinations made by Pamela Fox
provided for Defendants from January 2013 onward, ...