Rosen v. Provident Life & Accident Insurance
2015 U.S. Dist. LEXIS 89070
| N.D. Ala. | 2015Background
- Plaintiff Lawrence Rosen sued Provident Life & Accident Insurance Company alleging denial of benefits, bad faith, fraud, and RICO claims asserting a multi‑state scheme to avoid paying disability claims.
- Extensive discovery disputes followed; Rosen filed renewed motions to compel document production and deposition testimony, and Provident filed multiple discovery motions including to strike, for a protective order, and to compel.
- The parties sparred over production format (PDF v. Excel CPT code reports), scope of documents (claims files, ERISA‑related materials, promotional literature, compensation/incentive plans, personnel files, complaints/lawsuits), and Rule 30(b)(6) deposition topics (e.g., OMAR system, CPT code analysis, incentives, organizational changes, salary‑allotment usage).
- Rosen narrowed several requests and agreed temporal/geographic limits for others; Provident resisted largely on burden, confidentiality, work‑product, hearsay, relevance, and ERISA preemption grounds.
- The court denied Provident’s motion to strike and for a protective order, denied Provident’s motion to compel, granted Rosen’s renewed motions to compel documents and deposition testimony, and ordered Provident to show cause why sanctions under Rules 37 and 11 are not warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to strike Rosen’s exhibits/references | Documents are offered only to show existence/availability, not for their truth | Exhibits are inadmissible hearsay and irrelevant | Denied — admissibility at trial is not a basis to strike discovery exhibits; judicial‑record references permissible |
| Protective order for broad confidential categories | Discovery central to RICO and merits; existing privacy rules suffice | Broad trade‑secret/confidentiality concerns and privacy of insureds/claimants justify protection | Denied — no specific good‑cause, overbroad umbrella protection, info central to claims |
| Compel production of CPT codes in Excel | Rosen offered to produce Excel for certain periods; seeks usable data | Burden and duplicative production objections; format dispute | Denied as to unresolved parts — Rosen already produced PDFs; additional formats unnecessary/duplicative; part of motion not ripe after parties’ agreement |
| Compel third‑party/attorney‑file materials (Request 24) | Materials relevant; some obtained from third parties | Work‑product and attorney‑impression protection | Denied — materials protected by work product; Rosen must provide privilege log by category |
| Compel various document categories (promo materials, manuals, complaints, personnel files, ERISA docs, incentive plans, etc.) | Relevant to fraud, bad faith, and RICO pattern; narrowed temporally/geographically when appropriate | Overbroad, unduly burdensome, employee privacy, irrelevant beyond Alabama | Granted as to the revised/limited requests — court finds requests relevant and within Rule 26; privacy/proprietary concerns insufficient without specifics |
| Compel Rule 30(b)(6) deposition topics (OMAR system, incentives, CPT practices, organizational changes, salary‑allotment use, etc.) | Topics are sufficiently particular and relevant to RICO/claim handling pattern; Rosen narrowed some topics | Premature (no formal notice), overbroad, burdensome, vague, seeks legal conclusions | Granted — topics are relevant and stated with reasonable particularity; production delays by Provident do not bar relief |
| Sanctions under Rules 37 & 11 | N/A (Rosen prevailing on motions) | Provident contests sanctions | Provident ordered to show cause why sanctions are not appropriate given denied motions and discovery conduct |
Key Cases Cited
- Panola Land Buyers Ass’n v. Shuman, 762 F.2d 1550 (11th Cir. 1985) (court may limit discovery that is cumulative, duplicative, or unduly burdensome)
- Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566 (11th Cir. 1992) (discovery should be tailored to the issues in the case)
- Hickman v. Taylor, 329 U.S. 495 (1947) (work‑product protection for counsel’s mental impressions)
- Dunbar v. United States, 502 F.2d 506 (5th Cir. 1974) (discovery rules are broad and liberally construed)
- Farnsworth v. Procter & Gamble Co., 758 F.2d 1545 (11th Cir. 1985) (courts favor full discovery; protective orders require good cause)
- In re Alexander Grant & Co. Litig., 820 F.2d 352 (11th Cir. 1987) (umbrella protective orders appropriate only in limited circumstances)
- Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994) (conclusory assertions of competitive harm insufficient for protective order)
- Gould Inc. v. Mitsui Mining & Smelting Co., Ltd., 825 F.2d 676 (2d Cir. 1987) (work‑product protection may extend to third‑party documents when disclosure would reveal counsel’s strategies)
- Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985) (protections against probing counsel’s mental impressions)
- Bonner v. Prichard, 661 F.2d 1206 (11th Cir. 1981) (precedent on interpreting decisions from the former Fifth Circuit)
- McKesson Corp. v. Islamic Republic of Iran, 185 F.R.D. 70 (D.D.C. 1999) (explanation of Rule 30(b)(6) procedures)