Great West Life Assurance Co. v. Levithan

152 F.R.D. 494, 28 Fed. R. Serv. 3d 566, 1994 U.S. Dist. LEXIS 200, 1994 WL 12596
CourtDistrict Court, E.D. Pennsylvania
DecidedJanuary 12, 1994
DocketCiv. A. No. 93-CV-1560
StatusPublished
Cited by27 cases

This text of 152 F.R.D. 494 (Great West Life Assurance Co. v. Levithan) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Great West Life Assurance Co. v. Levithan, 152 F.R.D. 494, 28 Fed. R. Serv. 3d 566, 1994 U.S. Dist. LEXIS 200, 1994 WL 12596 (E.D. Pa. 1994).

Opinion

MEMORANDUM AND ORDER

JOYNER, District Judge.

The defendant has moved for a protective order regarding the discovery requests of the plaintiff. The underlying action was instituted by Great West Life Assurance Company to recover funds that it contends were paid to defendant on a disability policy. Great West [496]*496alleges that the defendant repeatedly claimed that he (1) was housebound, (2) was not working in his occupation as corporate executive, (3) had not visited his place of business and (4) had not earned any money during his disability in order to collect on his policy. According to plaintiff, surveillance of Mr. Levithan revealed his repeated presence at his place of business, his frequent absence from his home and his partaking in recreational activities and carrying of large boxes.1

It is Great West’s position that, “Mr. Levi-than still conducts business for Contour Medical, albeit somewhat furtively, and still receives business-related income ...,” that Mr. Levithan’s transfer of his company to his wife was a sham, and that he is not housebound and engaged only in rest and rehabilitation. According to Great West, much of the disputed discovery is designed to prove the sham nature of Mr. Levithan’s claimed lack of relationship with Contour Medical after December 1990. Great West also believes that it is entitled to discovery that might show the falsity of Mr. Levithan’s claims that he was “housebound and engaged solely in rest and rehabilitation.” Additionally, Great West feels it is entitled to discovery that would reveal the business relationship between Mr. Levithan and Dr. Lincow, who signed the forms submitted to Great West concerning Mr. Levithan’s medical treatment.2

Questions concerning the scope of discovery are among those matters which should be almost exclusively committed to the sound discretion of the district court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81 (3d Cir.1987); Howze v. Jones, 750 F.2d 1208 (3d Cir.1984). For the reasons that follow, we must deny the defendant’s motion for a protective order.

According to Rule 26 of the Federal Rules of Civil Procedure, the court may, upon a motion by a party, and for good cause shown, make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Fed.R.Civ.P. 26(c). A party seeking a protective order under Rule 26 bears the burden of demonstrating the “good cause” required to support such an order. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986), cert. denied, 484 U.S. 976, 108 S.Ct. 487, 98 L.Ed.2d 485 (1988). It is the moving party’s burden to show a “particular need” for protection. “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning do not satisfy the Rule.” Trans Pacific Insurance Co. v. Trans-Pacific Insurance Co., 136 F.R.D. 385, 391 (E.D.Pa.1991) (citing United States v. Garrett, 571 F.2d 1323, 1326 (5th Cir.1978)).

Here, defendant’s broad allegations of harm are conclusory. Lacking are specific examples of potential harm and articulated reasoning in support of the Protective Order. The defendant refers quite often to “privilege,” but does not meet his burden of showing the existence of the privilege. Also, the defendant repeatedly insists that the plaintiff is not entitled to discovery regarding his wife—Cindy Levithan. The discovery sought by the plaintiff is, in the court’s judgment, relevant to the claims and issues involved in the litigation.

The defendant claims that the plaintiff is involved in a “fishing expedition.” However, the plaintiff has substantiated its claims against Mr. Levithan and shown its need for the requested discovery through reference to the surveillance of Mr. Levithan and to Mr. Levithan’s testimony at deposition. We will first address the relevance of the requested discovery.

[497]*497The general scope of discovery is defined by Federal Rule of Civil Procedure 26(b)(1) as follows: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ...” Rule 26(b)(1) is to be construed broadly and encompasses any matter that bears on, or that reasonably could bear on, any issue that is or may be in this case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947)).

As stated above, Great West claims that the discovery they seek is designed to prove three things: 1) that Mr. Levithan’s assertions of lack of business-related activity and income are based upon his sham transfer of his business to his wife, 2) the falsity of Mr. Levithan’s claims that he was housebound and engaged solely in rest and rehabilitation, and 3) the relationship between Mr. Levithan and Dr. Lincow.

Great West has requested several things to prove the sham nature of the transfer of Contour Medical to Cindy Levithan. We agree that the requested tax records and bank records of Mark and Cindy Levithan are discoverable. They are probative of the financial consequences of the transfer of corporate ownership from Mark to Cindy Levi-than. Telephone records are discoverable in that they might show that Mr. Levithan was making business-related telephone calls.

As to the corporate records requested by the plaintiff, the defendant claims that the discovery request is overbroad. In this respect, we agree with the defendant. The subpoena seeks “[a]ll documents from December 3, 1990 to the present mentioning Contour Medical Supply, Inc., any Contour Chair entity, any Life Alert entity, Real Estate and Commercial Transactions, Inc., Kelley, Taylor, & Winter Funding Sources, Inc., ...” The corporate records are discoverable to the extent that they shed light on the transfer of Contour Medical from Mark Levi-than to Cindy Levithan and to establish that Mr. Levithan was involved in business activities. However, plaintiff requests “all documents.”

To require the defendant to produce all of the documents pertaining to these six companies regardless of whether they deal with the transfer of Contour Medical or indicate that Mark Levithan participated in business transactions would be unduly burdensome. So, as to the corporate records requested in ¶ 11 of Plaintiffs request for Production of Documents, we will grant a protective order. We do not, however, restrict the plaintiff from amending their request for corporate records.

A second portion of the discovery requested by the plaintiff is meant to rebut Mr.

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152 F.R.D. 494, 28 Fed. R. Serv. 3d 566, 1994 U.S. Dist. LEXIS 200, 1994 WL 12596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-west-life-assurance-co-v-levithan-paed-1994.