1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Sharon Finkelstein, No. CV-21-00657-PHX-MTL
10 Plaintiff, ORDER
11 v. NOT FOR PUBLICATION
12 Prudential Financial Incorporated, et al.,
13 Defendants. 14 15 The matter before the Court is a comprehensive discovery dispute arising from 16 Plaintiff Finkelstein’s requests for production (“RFP”) and requests for interrogatories 17 (“RFI”) on Defendant Prudential Financial Incorporated. (Doc. 46.) The Court has 18 considered Plaintiff’s Motion to Compel and Defendant’s Motion for Protective Order. 19 (Docs. 51, 58.) The Motion to Compel (Doc. 51) will be granted in part and denied in part, 20 as explained below. The Motion for Protective Order (Doc. 58) is not particularly useful as 21 a stand-alone motion, and it will be denied as moot. 22 1. Timeframe for Discovery. The parties disagree as to the relevant timeframe 23 for Plaintiff’s discovery requests. Plaintiff’s RFPs define the relevant time period as “the 24 year Plaintiff made a claim for benefits and two years subsequent to the termination of her 25 claim.” (Doc. 51-4 at 2.) Accordingly, Plaintiff seeks discovery of documents and 26 information going back to prior when her claim was initiated in 2008. (See Doc. 64 at 4.) 27 Prudential believes that it should be limited to 2018 to 2021. (Doc. 58 at 4.) To the extent 28 not specified herein, the timeframe of discovery shall be limited to five (5) years prior to 1 the denial of Plaintiff Finkelstein’s Long-Term Care (“LTC”) claim in February 2021. 2 2. Reserve Information (RFP 1, RFI 5). Prudential has shown that its claim 3 reserves calculation is based on generally applied factors, rather than claim-specific 4 information. Declaration of A. Wandji, FSA, MAAA. (Doc. 58-8.) Plaintiff’s Motion to 5 Compel a further response to Request for Production No. 1 will be denied. See 6 Metropolitan Life Ins. Co. v. Ogandzhanova, No. CV-12-372-PHX-GMS, 2013 WL 7 1442581, at *2 (D. Ariz. Apr. 9, 2013). 8 3. Personnel Files (RFP 2, RFI 9). Ms. Finkelstein’s Request for Production 9 No. 2 seeks “all documents relating to employee performance goals and targets for the 10 individuals listed and believed to be involved in Plaintiff’s claim . . . regardless of 11 employment status.”* The scope of this request includes individuals who work for CHCS, 12 Inc., a third-party administrator. The Court will grant the Motion to Compel insofar as the 13 employees listed in the Request for Production of Documents are Prudential employees. 14 Prudential’s duty to supplement its response is limited to “(1) to those specific personnel 15 record documents related to work performance assessments and evaluations and 16 participation in any claims handling-related incentive plan; [and] (2) of [Prudential 17 employees] who had more than a de minimis participation at the decision-making level of 18 the administration of the plaintiff’s [LTC] claim.” Wood v. State Farm Mut. Auto. Ins. Co., 19 No. CV-15-00525-PHX-PGR, 2016 WL 8647997, at *1 (D. Ariz. Feb. 10, 2016). This 20 decision does not prohibit Plaintiff from issuing a document subpoena to CHCS in line 21 with the Wood limitation. 22 4. Compensation Plans (RFP 3, RFIs 4 and 11). Ms. Finkelstein seeks the 23 “Compensation Plan criteria applicable to the claim department that investigated, 24 evaluated, or otherwise handled [her] claim.” Prudential asserts that this information has 25 been disclosed in the Master Services Agreement (“MSA”) between itself and CHCS, Inc. 26 * At oral argument, Plaintiff’s counsel informed the Court that she was also seeking 27 Plaintiff’s Special Investigation Unit (“SIU”) file. This issue was not fully briefed. (See Doc. 64 at 10.) To the extent that the SIU file is not included in the personnel file as 28 described herein, Plaintiff’s Motion to Compel the SIU file is denied without prejudice to refile. 1 (Doc. 58 at 18.) Also, at oral argument, Plaintiff stated that she viewed the compensation 2 plans through the Securities and Exchange Commission’s website. Plaintiff’s Motion to 3 Compel a further response to Request for Production No. 3 is denied. 4 5. Master Services Agreement (“MSA”) (RFP 3). Plaintiff contends that 5 Prudential has only produced “the first step” in the MSA and did not provide the exhibits. 6 Plaintiff does not state with specificity what is missing from the MSA production beyond 7 generally identifying “critical reports and documents referenced in the MSA.” (Doc. 64 at 8 6.) Defendant responds that it has produced the entire MSA with CHCS, Inc. (Doc. 58 at 9 18.) The Court finds that the MSA is relevant and must be produced in full. To the extent 10 that any part of the MSA has not been produced, including any attachments, exhibits, and 11 the like, those documents must be produced to Ms. Finkelstein. Plaintiff’s Motion to 12 Compel is granted in this respect. 13 6. Training Manuals (RFPs 4, 5 and 6, RFIs 3, 12 and 13). Plaintiff seeks 14 documents relating to policies, training materials, quality assurance manuals, and 15 documents governing business relationships. Prudential states that it produced the claims 16 manual that has been operative since 2015. Plaintiff seeks the pre-2015 claims manual. The 17 Court finds that Plaintiff has failed to satisfy her burden to show that these materials are 18 relevant and proportional to the needs of the case. See Fed. R. Civ. P. 26(c). Therefore, 19 Plaintiff’s Motion to Compel further responses to Requests for Production Nos. 4, 5, and 6 20 are denied. 21 7. Dr. Nye’s Reports (RFPs 7 and 10). Prudential’s decision denying Ms. 22 Finkelstein’s LTC claim relied on an evaluation prepared by Dr. Nye. Request for 23 Production Nos. 7 and 10 seek “any prior affidavit, declaration, deposition, or transcribed 24 trial testimony” for any individuals listed, including Dr. Nye, as well as “all documents 25 reflecting [his] opinions or reports on any LTC claim.” Plaintiff’s objective is to obtain 26 evidence of Dr. Nye’s bias. (Doc. 64 at 13–14.) On the issues of relevance and bias of 27 physician reports, the parties have cited the same cases from this District but urge this Court 28 that they support their diametrically opposed viewpoints. (Compare Docs. 58 at 10 with 64 1 at 14.) Under these circumstances, the Court finds the resolution in Cheatwood v. Christian 2 Brothers Services, No. 2:16-CV-2946-HRH, 2018 WL 287389, at *2 (D. Ariz. Jan. 4, 3 2018), instructive. The facts and circumstances of each LTC review are different from Ms. 4 Finkelstein’s case, rendering the other reports’ relevancy questionable here. To that point, 5 the Court has concerns that moving forward with this discovery category will invariably 6 lead to mini trials on the other Nye opinions, which can occur in dispositive motion 7 briefing, at the motion in limine stage, or at trial. Accordingly, Plaintiff’s Motion to Compel 8 Dr. Nye’s reports is denied. 9 8. Business Audits (RFP 8, RFI 1). Plaintiff’s Request for Production No. 8 10 asks for “all documents, including but not limited to financial audits, during the relevant 11 time period, relating to the insurance policy.” Plaintiff argues that this request is directly 12 relevant to her claims and burden of proof. (Doc. 64 at 15.) Defendant characterizes this 13 request as irrelevant and impermissible. (Doc. 58 at 11.) Plaintiff has failed to rationalize 14 this discovery category beyond speculation and does not explain how it is proportional to 15 the needs of this case. Accordingly, Plaintiff’s request as to Prudential’s business audits is 16 denied. 17 9. Forensic Computer Audit (RFP 11).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Sharon Finkelstein, No. CV-21-00657-PHX-MTL
10 Plaintiff, ORDER
11 v. NOT FOR PUBLICATION
12 Prudential Financial Incorporated, et al.,
13 Defendants. 14 15 The matter before the Court is a comprehensive discovery dispute arising from 16 Plaintiff Finkelstein’s requests for production (“RFP”) and requests for interrogatories 17 (“RFI”) on Defendant Prudential Financial Incorporated. (Doc. 46.) The Court has 18 considered Plaintiff’s Motion to Compel and Defendant’s Motion for Protective Order. 19 (Docs. 51, 58.) The Motion to Compel (Doc. 51) will be granted in part and denied in part, 20 as explained below. The Motion for Protective Order (Doc. 58) is not particularly useful as 21 a stand-alone motion, and it will be denied as moot. 22 1. Timeframe for Discovery. The parties disagree as to the relevant timeframe 23 for Plaintiff’s discovery requests. Plaintiff’s RFPs define the relevant time period as “the 24 year Plaintiff made a claim for benefits and two years subsequent to the termination of her 25 claim.” (Doc. 51-4 at 2.) Accordingly, Plaintiff seeks discovery of documents and 26 information going back to prior when her claim was initiated in 2008. (See Doc. 64 at 4.) 27 Prudential believes that it should be limited to 2018 to 2021. (Doc. 58 at 4.) To the extent 28 not specified herein, the timeframe of discovery shall be limited to five (5) years prior to 1 the denial of Plaintiff Finkelstein’s Long-Term Care (“LTC”) claim in February 2021. 2 2. Reserve Information (RFP 1, RFI 5). Prudential has shown that its claim 3 reserves calculation is based on generally applied factors, rather than claim-specific 4 information. Declaration of A. Wandji, FSA, MAAA. (Doc. 58-8.) Plaintiff’s Motion to 5 Compel a further response to Request for Production No. 1 will be denied. See 6 Metropolitan Life Ins. Co. v. Ogandzhanova, No. CV-12-372-PHX-GMS, 2013 WL 7 1442581, at *2 (D. Ariz. Apr. 9, 2013). 8 3. Personnel Files (RFP 2, RFI 9). Ms. Finkelstein’s Request for Production 9 No. 2 seeks “all documents relating to employee performance goals and targets for the 10 individuals listed and believed to be involved in Plaintiff’s claim . . . regardless of 11 employment status.”* The scope of this request includes individuals who work for CHCS, 12 Inc., a third-party administrator. The Court will grant the Motion to Compel insofar as the 13 employees listed in the Request for Production of Documents are Prudential employees. 14 Prudential’s duty to supplement its response is limited to “(1) to those specific personnel 15 record documents related to work performance assessments and evaluations and 16 participation in any claims handling-related incentive plan; [and] (2) of [Prudential 17 employees] who had more than a de minimis participation at the decision-making level of 18 the administration of the plaintiff’s [LTC] claim.” Wood v. State Farm Mut. Auto. Ins. Co., 19 No. CV-15-00525-PHX-PGR, 2016 WL 8647997, at *1 (D. Ariz. Feb. 10, 2016). This 20 decision does not prohibit Plaintiff from issuing a document subpoena to CHCS in line 21 with the Wood limitation. 22 4. Compensation Plans (RFP 3, RFIs 4 and 11). Ms. Finkelstein seeks the 23 “Compensation Plan criteria applicable to the claim department that investigated, 24 evaluated, or otherwise handled [her] claim.” Prudential asserts that this information has 25 been disclosed in the Master Services Agreement (“MSA”) between itself and CHCS, Inc. 26 * At oral argument, Plaintiff’s counsel informed the Court that she was also seeking 27 Plaintiff’s Special Investigation Unit (“SIU”) file. This issue was not fully briefed. (See Doc. 64 at 10.) To the extent that the SIU file is not included in the personnel file as 28 described herein, Plaintiff’s Motion to Compel the SIU file is denied without prejudice to refile. 1 (Doc. 58 at 18.) Also, at oral argument, Plaintiff stated that she viewed the compensation 2 plans through the Securities and Exchange Commission’s website. Plaintiff’s Motion to 3 Compel a further response to Request for Production No. 3 is denied. 4 5. Master Services Agreement (“MSA”) (RFP 3). Plaintiff contends that 5 Prudential has only produced “the first step” in the MSA and did not provide the exhibits. 6 Plaintiff does not state with specificity what is missing from the MSA production beyond 7 generally identifying “critical reports and documents referenced in the MSA.” (Doc. 64 at 8 6.) Defendant responds that it has produced the entire MSA with CHCS, Inc. (Doc. 58 at 9 18.) The Court finds that the MSA is relevant and must be produced in full. To the extent 10 that any part of the MSA has not been produced, including any attachments, exhibits, and 11 the like, those documents must be produced to Ms. Finkelstein. Plaintiff’s Motion to 12 Compel is granted in this respect. 13 6. Training Manuals (RFPs 4, 5 and 6, RFIs 3, 12 and 13). Plaintiff seeks 14 documents relating to policies, training materials, quality assurance manuals, and 15 documents governing business relationships. Prudential states that it produced the claims 16 manual that has been operative since 2015. Plaintiff seeks the pre-2015 claims manual. The 17 Court finds that Plaintiff has failed to satisfy her burden to show that these materials are 18 relevant and proportional to the needs of the case. See Fed. R. Civ. P. 26(c). Therefore, 19 Plaintiff’s Motion to Compel further responses to Requests for Production Nos. 4, 5, and 6 20 are denied. 21 7. Dr. Nye’s Reports (RFPs 7 and 10). Prudential’s decision denying Ms. 22 Finkelstein’s LTC claim relied on an evaluation prepared by Dr. Nye. Request for 23 Production Nos. 7 and 10 seek “any prior affidavit, declaration, deposition, or transcribed 24 trial testimony” for any individuals listed, including Dr. Nye, as well as “all documents 25 reflecting [his] opinions or reports on any LTC claim.” Plaintiff’s objective is to obtain 26 evidence of Dr. Nye’s bias. (Doc. 64 at 13–14.) On the issues of relevance and bias of 27 physician reports, the parties have cited the same cases from this District but urge this Court 28 that they support their diametrically opposed viewpoints. (Compare Docs. 58 at 10 with 64 1 at 14.) Under these circumstances, the Court finds the resolution in Cheatwood v. Christian 2 Brothers Services, No. 2:16-CV-2946-HRH, 2018 WL 287389, at *2 (D. Ariz. Jan. 4, 3 2018), instructive. The facts and circumstances of each LTC review are different from Ms. 4 Finkelstein’s case, rendering the other reports’ relevancy questionable here. To that point, 5 the Court has concerns that moving forward with this discovery category will invariably 6 lead to mini trials on the other Nye opinions, which can occur in dispositive motion 7 briefing, at the motion in limine stage, or at trial. Accordingly, Plaintiff’s Motion to Compel 8 Dr. Nye’s reports is denied. 9 8. Business Audits (RFP 8, RFI 1). Plaintiff’s Request for Production No. 8 10 asks for “all documents, including but not limited to financial audits, during the relevant 11 time period, relating to the insurance policy.” Plaintiff argues that this request is directly 12 relevant to her claims and burden of proof. (Doc. 64 at 15.) Defendant characterizes this 13 request as irrelevant and impermissible. (Doc. 58 at 11.) Plaintiff has failed to rationalize 14 this discovery category beyond speculation and does not explain how it is proportional to 15 the needs of this case. Accordingly, Plaintiff’s request as to Prudential’s business audits is 16 denied. 17 9. Forensic Computer Audit (RFP 11). Contending that some information 18 concerning her claim is missing from the production set, Plaintiff, pursuant to Rule 34(a)(1) 19 of the Federal Rules of Civil Procedure, seeks limited access to Prudential’s claims 20 handling computer system. Prudential avows that all the information in Plaintiff’s claim 21 file has been produced. (Doc. 58-2.) To obtain access to an opponent’s computer systems, 22 a party must show “specific, concrete evidence of concealment or destruction of evidence.” 23 Advante Int’l Corp. v. Mintel Learning Technology, No. C 05-01022 JW, 2006 WL 24 1806151, at *2 (N.D. Cal. June 29, 2006). Plaintiff has failed to make this showing. The 25 Motion to Compel access to Prudential’s claim processing software is denied. 26 Accordingly, 27 IT IS ORDERED that: 28 /// 1 1. The Joint Motion for Discovery Dispute (Doc. 46) is resolved as stated in || this Order. 3 2. The Motion to Compel (Doc. 51) is granted in part and denied in part as 4|| stated herein. To the extent that this discovery dispute is resolved against Prudential, it 5 || must supplement its discovery responses no later than 14 calendar days from the date of || this Order. 7 3. The Motion for Protective Order (Doc. 58) is denied as moot. 8 4. Insofar as any item in the Motion to Compel has not been addressed in this 9|| Order, it is denied. 10 Dated this 1st day of March, 2022. 11 Wichal T. Hburde Michael T. Liburdi 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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