United States District Court

For the Northern District of California

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CINDY KROLL,

Plaintiff,

v.

KAISER FOUNDATION HEALTH PLAN

LONG TERM DISABILITY PLAN,

Defendant.

___________________________________/

No. C-09-1404 JSW (EMC)

ORDER GRANTING IN PART AND

DENYING IN PART PLAINTIFF’S

MOTION TO COMPEL RESPONSES

TO WRITTEN DISCOVERY; AND

DENYING PLAINTIFF’S MOTION TO

COMPEL DEPOSITIONS

(Docket Nos. 36, 38)

Currently pending before the Court are two motions to compel filed by Plaintiff. Having

considered the parties’ briefs and accompanying submissions, as well as the oral argument of

counsel and all other evidence of record, the Court hereby rules as follows.

(1) To the extent it has not yet done so, MetLife shall provide a declaration certifying

that it has complied with Judge White’s order of October 22, 2009 -- i.e., that it has produced

documents responsive to the three categories listed on pages 3 and 4 of the order, see Docket No. 25

(Order at 3-4), subject to the requirement of ¶ 5 herein. If no responsive documents exist, MetLife

shall so state.

(2) In response to the Court’s observation that the requests were overbroad for an ERISA

case, Plaintiff stated at the hearing that she was willing to limit her request for discovery to written

discovery regarding three subject matters.

Case 3:09-cv-01404-JSW Document 50 Filed 03/26/10 Page 1 of 3
United States District Court

For the Northern District of California

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(3) Plaintiff has asked for written discovery regarding three subject matters. The first is,

in essence, a document request asking for a sampling of reports that Dr. Sloan has prepared for

MetLife in other disability cases. The Court grants this request. MetLife shall produce twenty-five

reports of Dr. Sloan closest in time to the report generated for Plaintiff. 

(4) The second discovery request is, in essence, an interrogatory asking MetLife what

statistics or information it collects for purposes of managing disability claims. This discovery

request is denied. As discussed at the hearing, the probative value of the information is marginal

and appears to be in the nature of a fishing expedition, contrary to the terms of Judge White’s

October 22 order.

(5) The third discovery request is, in essence, a document request asking MetLife to

produce any instructions that it gives to its claim adjusters as to how to assess claims dealing with

chronic pain. The Court deems this request to fall within the parameters of Judge White’s October

22 order. In that order, Judge White instructed MetLife to produce “any portion of the CMG or

other internal documents to the extent such documents . . . (3) constitute a statement of policy or

guidance with respect to the plan concerning the denied treatment option or benefit for the

claimant’s diagnosis, without regard to whether such advice or statement was relied upon in making

the benefit determination.” Docket No. 25 (Order at 3-4); see also 8 C.F.R. § 2560.503-1(m)(8)

(deeming information relevant if, “[i]n the case of a group health plan or a plan providing disability

benefits, [it] constitutes a statement of policy or guidance with respect to the plan concerning the

denied treatment option or benefit for the claimant’s diagnosis, without regard to whether such

advice or statement was relied upon in making the benefit determination”). MetLife advocates for a

narrow reading of Judge White’s order based on his use of the phrase “with respect to the plan.” But

the Court does not view that phrase as limiting, at least not in the situation presented here. So long

as, e.g., the CMG was available to the adjusters working on the plan applicable to Plaintiff, then the

portion of the CMG relevant to chronic pain should be produced. Even if the documents were not

within the parameters of Judge White’s order, the Court finds the request is sufficiently tailored to

documents that may have probative value on the issue of the effect of the structural conflict on

MetLife’s decisionmaking as to warrant its production. The Court rejects MetLife’s position that

Case 3:09-cv-01404-JSW Document 50 Filed 03/26/10 Page 2 of 3
United States District Court

For the Northern District of California

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this information is relevant only to the merits of the claim decision and not the issue of structural

conflict. The Court also rejects MetLife’s assertion that the information should not be produced

because it is highly confidential and proprietary. That concern may be dealt with by a protective

order, limiting the use of the information for purposes of this litigation only and designating the

information “Attorney’s Eyes Only.”

For the foregoing reasons, the Court grants the motion to compel to the extent ordered herein

and denies the remainder of motion.

This order disposes of Docket Nos. 36 and 38.

IT IS SO ORDERED.

Dated: March 26, 2010

_________________________ EDWARD M. CHEN

United States Magistrate Judge

Case 3:09-cv-01404-JSW Document 50 Filed 03/26/10 Page 3 of 3