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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

PENNY BENDER,

Plaintiff,

 v.

HARTFORD LIFE INSURANCE COMPANY,

as Administrator and Fiduciary of the

Bertelsmann, Inc. Employee Protection Plan

Number 503; BERTELSMANN, INC.

EMPLOYEE PROTECTION PLAN NUMBER

503,

Defendants. /

No. C 09-1163 MMC

ORDER GRANTING MOTION TO REOPEN DISCOVERY; DEFERRING

RULING ON PARTIES’ MOTIONS FOR

JUDGMENT; SETTING SUPPLEMENTAL

BRIEFING SCHEDULE; CONTINUING

HEARING

Before the Court are the parties’ motions for judgment, filed, respectively, on

February 26, 2010 and March 26, 2010; the motions have been fully briefed. Also before

the Court is plaintiff’s administrative motion to re-open discovery, filed April 8, 2010, to

which defendants have filed opposition. As set forth below, the Court will grant plaintiff’s

motion to re-open discovery and will defer ruling on the parties’ motions for judgment. 

Contrary to defendants’ argument, the Court finds plaintiff is entitled to conduct

limited additional discovery based on defendants’ submission of evidence in support of their

motion, specifically, the declaration of Bruce Luddy (“Luddy”), Director of Litigation and

Appeals for Hartford Life and Accident Insurance Company. See, e.g., Golden v. Sun Life

Fin., Inc., 2008 WL 2782736, *3 (M.D. Ala. 2008) (“Because the case [although brought

Case 3:09-cv-01163-MMC Document 42 Filed 04/27/10 Page 1 of 2
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under ERISA] involves more than the administrative record and because the parties will be

engaging in discovery, they are required to provide initial disclosures in accordance with

Rule 26(a).”); Hamma v. Intel Corp., 2008 WL 648482, *3 (E.D. Cal. 2008) (holding initial

disclosures required where “parties [had] agreed that discovery outside the administrative

record, authorized under the rationale of Abatie, [was] permitted”). 

In particular, plaintiff is entitled to depose Luddy, such deposition being limited to

Luddy’s knowledge of the active steps taken by Hartford to reduce potential bias and to

promote accuracy in Hartford's claims administration, as described in Luddy’s declaration. 

See Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 2343, 2351 (2008) (holding claims

administrator’s “active steps to reduce potential bias and to promote accuracy” relevant to

court’s determination as to conflict); see, e.g., Pl’s Mot. to Re-Open Ex. B (Civil Minutes in

Reese v. Hartford Life and Accident Ins. Co., CV 08-8604 VBF (C.D. Cal. 2009)) (requiring

ERISA defendant to produce Luddy for deposition or “commit to not using him as a

witness”); cf. Kroll v. Kaiser Found. Health Plan Long Term Disability Plan, 2010 WL

1233871, *1 (N.D. Cal. 2010) (denying motion to compel depositions in ERISA case where

plaintiff subsequently limited request to written discovery). 

Accordingly, the Court hereby GRANTS plaintiff’s motion to re-open discovery,

DEFERS ruling on the parties’ motions for judgment, and SETS the following supplemental

briefing schedule:

1. Plaintiff’s Supplemental Opposition and Reply shall be filed no later than June 11,

2010, and shall not exceed five pages in length, exclusive of declarations and/or exhibits;

2. Defendants’ Supplemental Sur-Reply shall be filed no later than June 25, 2010,

and shall not exceed five pages in length, exclusive of declarations and/or exhibits. 

3. The hearing on the parties’ motions for judgment is hereby CONTINUED to July

16, 2010. 

IT IS SO ORDERED.

Dated: April 27, 2010 

MAXINE M. CHESNEY

United States District Judge

Case 3:09-cv-01163-MMC Document 42 Filed 04/27/10 Page 2 of 2