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Harper v. Unum Group

United States District Court, W.D. Arkansas, Fort Smith Division

August 29, 2016




         Before the Court is Plaintiff Dr. David Harper's motion to compel (Doc. 21), Defendants Unum Group and The Paul Revere Life Insurance Company's (collectively, “Unum”) response (Doc. 25), Unum's motion for protective order (Doc. 32), Harper's response (Doc. 33), and the parties' supporting documents. For the following reasons, the Court finds that Harper's motion to compel (Doc. 21) should be GRANTED IN PART and DENIED IN PART, and Unum's motion for protective order (Doc. 32) should be GRANTED.

         I. Background

         The instant motions stem from Dr. Harper's initial requests for production and second interrogatories and requests for production. Specifically at issue are: (1) a General Services Agreement between Unum Group and The Paul Revere Life Insurance Company; (2) performance reviews and bonus information for 2013 and 2014 for the three physicians who reviewed for Unum Harper's claim; (3) written agreements between Unum and its reviewing physicians for Dr. Harper, in regards to which Unum has submitted a motion for protective order (Doc. 21) while agreeing to produce the requested documents subject to entry of the protective order; and (4) records over a three-year period of each time that Unum or someone acting on its behalf reached a decision or opinion that a claimant's disability under a Unum policy was due to injury or sickness, as well as those same records for the reviewing physicians and specialists.

         In accordance with Federal Rule of Civil Procedure 37(a)(1) and Local Rule 7.2(g), Harper contends that the attorneys for both parties “conferred in good faith on the matters discussed herein by a series of letters from 03/09/2016 through 07/11/2016 and by a face-to-face meeting on 07/11/2016.” (Doc. 21, ¶ 3).

         II. Legal Framework

         Pursuant to Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense[.]” “Relevance under Rule 26 has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). In addition, Rule 26 “vests the district court with discretion to limit discovery if it determines, inter alia, the burden or expense of the proposed discovery outweighs its likely benefit.” Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003). Ultimately, determining the scope of discovery is within the discretion of the Court. WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1039 (8th Cir. 2011).

         III. Discussion

         1. Request for Production 7

         Unum agreed to produce a General Services Agreement between Unum Group and The Paul Revere Life Insurance Company in their response to the initial request on March 2, 2016. When Harper filed its motion to compel on July 18, 2016, it had not yet received the General Services Agreement. However, according to Unum's brief in support of their response to Harper's motion, the document has since been produced. (Doc. 31, page 3). Thus, there appears to be no need to compel production responsive to this request, and the Court will decline to do so.

         2. Request for Production 10

         This request seeks the 2013 and 2014 performance reviews and bonus worksheets for Unum's reviewing physicians Jerry Beavers, Frank Kanovsky, and Robert Keller. All three of the reviewing physicians wrote reports for Unum in support of the decision that Harper was disabled due to sickness and not injury. Additionally, Unum named all three as witnesses in initial disclosures and interrogatory answers. Unum states that Dr. Keller was an independent contractor for it during the relevant years such that he was ineligible for incentive programs and does not have any performance reviews. With respect to Dr. Beavers and Dr. Kanovsky, though, Unum provides seven objections to the request for their performance reviews and bonus information.

         As an initial matter, local Rule 33.1(b) notes that “[i]t is not sufficient to state that the interrogatory or request is burdensome, improper, or not relevant. The ground or grounds for the objection must be stated with particularity.” Unum has not stated with particularity how these requests, as they relate to a two-year period for two physicians, are overly broad or out of proportion. Nor are the requested “bonus worksheets” vague and ambiguous. Unum does present an argument that the performance reviews and bonus information are not relevant to the particular issues in this action. Contrary to that position, though, the Court finds that these records are relevant to proving or discovering potential biases of Unum's reviewing physicians, and would go to the credibility of the witness.

         Unum next argues that the records requested are confidential, contain private information of third-party employees, and, as to Massachusetts employees, are protected by Massachusetts General Laws c. 214, § 1B. Courts in the Eighth Circuit have routinely found that individuals have a heightened privacy interest in a personnel file, but limited disclosure is nonetheless warranted when it is not unreasonable under the circumstances. Kampfe v. Petsmart, Inc., 304 F.R.D. 554, 559 (N.D. Iowa 2015) (“[T]he interest of litigants in discovering relevant information pursuant to Rule 26 must outweigh the general privacy interest that an employee has in the contents of his or her employment file. That is, so long as the requesting party demonstrates a legitimate need, the information must be produced.”); Nuckles v. Wal-Mart Stores, Inc., 2007 WL 1381651, at *1 (E.D. Ark. May 10, 2007) (“A proper balance between the privacy interests of non-parties, and the discovery interests of a litigant, assures that only relevant portions of the personnel files are open to disclosure.”); Christensen v. Quinn, 2013 WL 1702040, at *8 (D. S.D. Apr. 18, 2013) (“[T]he right to privacy regarding personnel files is not absolute. It must be balanced against the need by [the requesting party] to have the information.”). The law is similar in Massachusetts. See Skelley v. Trustees of Fessenden Sch., 1994 WL 928172, at *8 (Mass. Super. May 2, 1994) ...

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