IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BARBARA CLUCK, 

 Plaintiff, 

 Case No. 2:18-cv-056 

 

 vs. Judge Sarah D. Morrison 

 Chief Magistrate Judge Elizabeth P. Deavers 

 

UNUM LIFE INSURANCE COMPANY 

OF AMERICA, 

 

Defendant. 

OPINION AND ORDER 

This matter is before the Court for the resolution of two discovery motions filed by 

Barbara Cluck (“Plaintiff”). (ECF Nos. 83 and 84.) Plaintiff seeks to compel Unum Life 

Insurance Company of America’s (“Defendant”) to produce documents, pursuant to Federal Rule 

of Civil Procedure 37(a), in response to her Requests for Production Nos. 3.1, 3.2, and 3.3. (ECF 

No. 84.) Plaintiff also seeks an order, pursuant to Federal Rule of Civil Procedure 36(a)(6), 

overruling Defendant’s objections to Plaintiff’s Request for Admission 2.2 and directing 

Defendant to provide a complete and unambiguous response to that Request. (ECF No. 83.) 

Both motions have been fully briefed. For the reasons that follow, Plaintiff’s motions (ECF 

Nos. 83, 84) are GRANTED IN PART as more fully explained herein. 

I. Background 

Plaintiff became disabled in 2008 while she was employed as a medical assistant at The 

Ohio State University (“OSU”). She received short-term disability benefits from February of 

2008 until May of 2008 under insurance policy number 121156 (“the policy”), issued by 

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Defendant to OSU. When that short-term disability period ended, Defendant reviewed Plaintiff’s 

medical status and determined that she was eligible for long-term disability benefits. Defendant 

subsequently conducted periodic reviews of Plaintiff’s medical status and approved her claim for 

long-term benefits until 2015, when Defendant determined that Plaintiff was capable of 

performing sedentary work, and thus, was no longer disabled. Defendant terminated Plaintiff’s 

long-term disability benefits at that time. Plaintiff appealed, but Defendant affirmed its decision. 

Plaintiff filed suit alleging breach of contract and bad faith in the denial of her claim. 

(ECF No. 1.) In January of 2020, Plaintiff moved for summary judgment on her breach of 

contract claim (ECF No. 40); Defendant moved for summary judgment on Plaintiff’s bad faith 

claim (ECF No. 41). While those motions were pending, Plaintiff filed a motion to compel the 

production of documents that had been requested during discovery including documents related 

to Defendant’s relationship with OSU in light of deposition testimony indicating that Defendant 

had special or unique rules for handling claims made by OSU employees like Plaintiff. (ECF 

No. 50.) After holding a status conference on February 26, 2020, the Court ordered Defendant to 

produce those documents. (ECF Nos. 59, 60.) Defendant complied in March of 2020. 

On April 1, 2020, Plaintiff moved to re-open discovery because issues came to light as a 

result of Defendant’s March 2020 production. (ECF No. 64.) Specifically, Plaintiff contended 

that a two-page financial document numbered #2.10-000047 and #2.10-000049 (“Exhibit I” filed 

under seal (ECF No. 78)) demonstrates that the claims made under the policy exceeded policy 

premiums for several years prior to Defendant’s determination that Plaintiff was no longer 

eligible for benefits under the policy. (Id.) Plaintiff further contended that Exhibit I showed that 

during the approximate period that Plaintiff’s claim was denied, the situation reversed. (Id.) 

According to Plaintiff, this late-obtained information made it possible for her to discover 

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additional evidence that could substantiate her bad faith claim in which she asserts that 

Defendant began denying disability claims, like Plaintiff’s, without regard to their merits in order 

to promote Defendant’s own financial interests. (Id.) Defendant asserted that Plaintiff’s 

interpretation of the data in the financial document was speculative and produced affidavits from 

underwriters indicating that information about policy premiums is not shared with claims 

personnel who process claims independently. (ECF Nos. 72, 72–1, 72–2.) Nevertheless, the 

Court concluded that Plaintiff was entitled to additional discovery that either supported or 

refuted her theory about Defendant’s response to the policy’s loss ratio over time. (ECF No. 77.) 

Plaintiff propounded new requests for production and requests for admission. Defendants’ 

responses to those additional discovery requests are the basis of her instant motions. 

II. Standard of Review 

Federal Rule of Civil Procedure 26(b) identifies the acceptable scope of discovery: 

Parties may obtain discovery regarding any nonprivileged matter that is relevant 

to any party’s claim or defense and proportional to the needs of the case, 

considering the importance of the issues at stake in the action, the amount in 

controversy, the parties’ relative access to relevant information, the parties’ 

resources, the importance of the discovery in resolving the issues, and whether 

the burden or expense of the proposed discovery outweighs its likely benefit. 

Fed. R. Civ. P. 26(b)(1); see also Fed. R. Civ. P. 33(a)(2) (“An interrogatory may relate to any 

matter that may be inquired into under Rule 26(b).”), 34(a) (“A party may serve on any other 

party a request [to produce documents] within the scope of Rule 26(b)[.]”) Although this scope 

is far reaching, “[d]istrict courts have broad discretion over docket control and the discovery 

process.” Pittman v. Experian Info. Sol., Inc., 901 F.3d 619, 642 (6th Cir. 2018) (citations 

omitted). In short, “a plaintiff should have access to information necessary to establish her 

claim, but [] a plaintiff may not be permitted to ‘go fishing’; the trial court retains discretion.” 

Anwar v. Dow Chem. Co., 876 F.3d 841, 854 (6th Cir. 2017) (citing Surles ex rel. Johnson v. 

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Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)); see also Superior Prod. P’ship v. 

Gordon Auto Body Parts Co., Ltd., 784 F.3d 311, 320–21 (6th Cir. 2015) (“In sum, ‘[a]lthough a 

plaintiff should not be denied access to information necessary to establish her claim, neither may 

a plaintiff be permitted to ‘go fishing’ and a trial court retains discretion to determine that a 

discovery request is too broad and oppressive.’” (quoting Surles ex rel. Johnson, 474 F.3d at 

305)). 

III. Discussion 

A. Requests for Production 

A party may file a motion to compel discovery when a party fails to produce documents 

or allow for inspection as requested under Rule 34. Fed. R. Civ. P. 37(a)(3)(B). “[T]he movant 

bears the initial burden of showing that the information sought is relevant” under Rule 26. 

Prado v. Thomas, No. 3:16-cv-306, 2017 WL 5151377, at *1 (S.D. Ohio Oct. 19, 2017) (citing 

Gruenbaum v. Werner, 270 F.R.D. 298, 302 (S.D. Ohio 2010)). If the movant makes that initial 

showing, then “the party resisting production has the burden of establishing that the information 

is either not relevant or is so marginally relevant that the presumption of broad disclosure is 

outweighed by the potential for undue burden or harm.” Pillar Title Agency v. Pei, No. 2:14-cv525, 2015 WL 2238180, at *3 (S.D. Ohio May 12, 2015) ((Kemp, M.J.) (citing Vickers v. Gen. 

Motors Corp., No. 07-2172 M1/P, 2008 WL 4600997, at *2 (W.D. Tenn. Sept. 29, 2008)); see 

also Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment (stating that a party 

claiming undue burden or expense “ordinarily has far better information—perhaps the only 

information—with respect to that part of the determination” and that a “party claiming that a 

request is important to resolve the issues should be able to explain the ways in which the 

underlying information bears on the issues as that party understands them”). 

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1. Request for Production 3.1 (Exhibits I and II) 

As explained infra, Defendant’s March 2020 production included Exhibit I, which has 

been filed under seal. (ECF No. 78.) Both pages bear the words “Exhibit I.” (Id.) The Court 

gleans from attachments to the parties’ filings that Exhibit I reflects underwriting information for 

the policy issued to OSU. Apparently, Defendant has also, at some point, produced a similar 

document that bears the label “Exhibit II.” (PAGE ID # 2526, 2541, 2543, 2545.) 

Plaintiff seeks the production of “the entire, complete and unredacted document,” 

including all exhibits and attachments, to which Exhibits I and II were appended and “from 

which” Exhibits I and II were “excerpted.” (PAGE ID # 2536.) Defendant objects to this 

request on the basis that it is vague, overbroad and unduly burdensome in scope and time frame, 

lacking or of limited relevance, seeks confidential business information, and seeks private 

information about other insureds. (PAGE ID #2537.) Subject to those objections, Defendant 

responds that Exhibits I and II were not appended to other documents. (Id.) Defendant’s counsel 

has reiterated that response in communications with Plaintiff’s counsel. (PAGE ID # 2543, 

2545, 2548, 2550.) 

Plaintiff expresses skepticism about Defendant’s response because the label “Exhibit” 

implies that the document had been made part of another document. (PAGE ID # 2526.) 

Defendant points out, and the Court agrees, however, that “exhibit” and “attachment” are not 

necessarily synonymous. Defendant has formally answered that there is no “foundational 

document” to which Exhibits I and II were both attached. (PAGE ID # 2537.) Defendant’s 

counsel has informally explained that Exhibits I and II were not attached to another foundational 

document and has warranted under signature that the label “Exhibit” indicates only that the 

document was used to exhibit or present underwriting information. (PAGE ID # 2545, 2548, 

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2550, 2561.) Defendant’s response is adequate. 

What is not entirely clear from the filings, however, is whether Defendant has produced 

unredacted copies of all documents that bear the label “Exhibit.” Defendant indicates that it has 

produced unredacted copies of Exhibit I, which Defendant refers to as the “Sealed Documents.” 

(PAGE ID # 2561, 2548.) It also appears that Defendant has also produced an unredacted copy 

of Exhibit II at bates label #3.2000003. (PAGE ID # 2543.) But it appears that Defendant has 

only produced a redacted copy of Exhibit III, described as “a table that identifies open claims as 

of a specific date by individual name and organized by date of disability” in response to another 

of Plaintiff’s discovery requests. (PAGE ID # 2561, 2545.) Notably, Exhibit III, which is also 

referred to by counsel as “Attachment 2” to a March 21, 2013 email, explicitly pertains to the 

policy that Defendant issued to OSU that covered Plaintiff’s claims, i.e., policy number 121156. 

(PAGE ID # 2545.) Defendant has also indicated that when its underwriters prepare documents 

“stylized as ‘Exhibit I’ and ‘Exhibit II’ it also produces an ‘Exhibit III’.” (PAGE ID # 2561, 

fn.2.) Thus, even if these Exhibits are not appended to one “foundational document” it appears 

that they are all created together and are related to one another. Plaintiff’s document request 

seeks all exhibits from which Exhibits I and II were “excerpted.” That includes Exhibit III to the 

extent it was generated as a companion document in the way that Defendant has described. 

Moreover, the Court is not satisfied that the redactions are justified. Plaintiff indicates 

that Exhibit III was redacted in its entirety when it was produced in response to another 

document request. It appears that Defendant redacted the information in Exhibit III because it 

believed it was not responsive to that other document request. (PAGE ID # 2545.) The Court 

concludes that Exhibit III is responsive to request 3.1 and thus redaction on the basis that the 

document is nonresponsive to another document request is unjustified. Defendant is 

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ORDERED to produce a copy of Exhibit III, referred to in Defendant’s July 14, 2020, email to 

counsel as “Attachment 2” in response to document request 3.1. (ECF No. 2545.) Although 

Defendant is ORDERED to redact individual names, social security numbers, and other personal 

identifiers that the document may contain, the remainder of the document should be produced 

unredacted. 

2. Request for Production 3.2 and 3.3 

In request for production 3.2 and 3.3, Plaintiff seeks the following: 

3.2: Produce all documents that reflect, memorialize, constitute, or refer to 

analyses, discussions, or communications with Unum or between or among Unum 

employees or agents (regardless of the business unit to which such employees or 

agents are attached) during the Time Period about the Perceived Claims Experience 

Disparity. 

3.3: Produce all documents that reflect, memorialize, constitute, or refer to 

analyses, discussions, or communications between Unum or its employees or 

agents (regardless of the business unit to which such employees or agents are 

attached) and any third party, including OSU during the Time Period about the 

Perceived Claims Experience Disparity. 

(PAGE ID # 2536, 2537.) Plaintiff defines the “Perceived Claims Experience Disparity” as “the 

appearance (whether true or not)” that “Unum was paying more in OSU claims than it was 

receiving in premiums from OSU.” (PAGE ID # 2535.) Plaintiff additionally defines the “Time 

Period” as January 1, 2009, through December 31, 2015. (PAGE ID # 2535.) 

 Defendant objects to these requests on the basis that they are vague; overbroad and 

unduly burdensome with regard to the defined Time Period; not relevant or lacking in relevance; 

seek confidential business information; and seek private information about other insureds. 

(PAGE ID # 2537, 2538.) Subject to those objections, Defendant produced what appears to be 

approximately 60 pages of documents in response to request 3.2 and approximately 20 pages of 

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documents in response to request 3.3. (Id.) 

 Plaintiff asserts that Defendant improperly objects to Plaintiff’s defined Time Period 

(January 1, 2009, through December 31, 2015), and only produced documents from January 1, 

2013, through December 31, 2015. The Court agrees. Although Defendant argues that it has 

produced documents from three years prior to its determination that Plaintiff was no longer 

eligible for long-term disability benefits, Defendant determined that Plaintiff was eligible for 

such benefits from 2009 until 2015. Then something changed. Documents related to 

Defendant’s communications about its loss-ratio analysis, internally or with others, is relevant to 

prove, or undermine, Plaintiff’s claim that Defendant denied claims, including her own, in bad 

faith after its loss ratio was no longer tolerable. A comparison of documents reflecting 

discussions about what, for instance, the tolerable loss-ratio was when her claims were approved 

to documents reflecting what the tolerable loss-ratio was when her claim was not approved 

would be relevant to her claim. Plaintiff is seeking to establish how the loss-ratio tolerance 

changed over time. Documents during the period when she was approved are relevant for such a 

comparison. 

In addition, although Plaintiff objects in its responses that Plaintiff’s proposed Time 

Period is unduly burdensome, it has put forth no argument or evidence about any purported 

burden. Indeed, Defendant’s counsel concedes that Defendant withheld responsive documents 

that were from the Time Period that Plaintiff defined. (PAGE ID # 2550.) That Defendant has 

identified such documents tends to undermine the claim that it would be burdensome to locate 

and produce them. Instead, Defendant asserts only that the period from which it produced 

documents— January 1, 2013, through December 31, 2015— was defensible because it covered 

the three years prior to its unfavorable disability determination and encompassed the negotiation 

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of the policy renewal bid which took effect in 2014. But that is not sufficient. Once Plaintiff has 

established that the information she seeks to discover is relevant, Defendant must show that the 

information’s relevance is marginal in relation to the potential for undue burden or harm. 

Defendant has not explained how any potential burden outweighs the information’s relevance. 

Accordingly, Defendant is ORDERED to produce documents from January 1, 2009, through 

December 31, 2015, that are responsive to document requests 3.2 and 3.3. 

Plaintiff also asserts that the documents that Defendant has produced in response to these 

requests were improperly redacted. Plaintiff identifies two documents with particularity. (ECF 

No. 2587.) The first is a March 21, 2013 email sent by one of Defendant’s employees, an 

underwriter, to another of Defendant’s employees whose tasks included servicing Defendant’s 

OSU account. (PAGE ID # 2587.) Although Defendant produced the email in response to 

document request 3.2 seeking communications between Defendant’s employees about the 

“Perceived Claims Disparity” (whether Defendant was paying more in OSU claims than it was 

receiving in premiums from OSU), Defendant redacted all eight attachments to that email (bates 

labeled #3.200004–10.) In subsequent correspondence, Defendant’s counsel explained that the 

attachments were redacted because they were non-responsive to the request. (PAGE ID # 2545.) 

Specifically, counsel explained that all but one of the attachments1

 contained information about 

other policies that did not cover Plaintiff’s claims (policy numbers 134155, 144338, 210818). 

(Id.) Defendant additionally asserts that its redactions are justified because the redactions are 

limited, and it described the information that was redacted. (PAGE ID # 2564–65.) Plaintiff 

replies that Defendant has already produced other unredacted document related to these other 

policies; these three other policies were all issued by Defendant to OSU; and that Defendant’s 

1

 One attachment, “Attachment 2,” is Exhibit III, discussed supra. 

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relationship with OSU is unitary even if has issued a total of four separate polices to OSU. 

(PAGE ID # 2588–89.) 

The Court ORDERS Defendant to produce unredacted copies of the attachments to the 

March 13, 2013, email. The Court finds that email and its attachments constitute a singular 

communication. The Court also finds that Plaintiff’s definition of the “Perceived Claims 

Experience Disparity” does not limit the request to communications about the loss ratio for the 

particular policy that covered Plaintiff’s claims but instead seeks communications about whether 

Defendant was generally paying more for claims to OSU employees than it was receiving for 

premiums paid OSU. (PAGE ID # 2535.) Accordingly, the Court finds that the entire 

communication, even if it included data about Defendant’s other OSU policies, is responsive to 

the request. Moreover, such information is relevant to Plaintiff’s bad faith claim, which is that 

Defendant began denying claims because it was losing money from its contractual relationship 

with OSU. The Court cannot find that producing unredacted copies of these eight attachments 

poses an undue burden. Nevertheless, it appears that “Attachment 8” may contain names or 

other personal identifiers. To the extent it does, Defendant is ORDERED to redact that 

information. 

Plaintiff also asserts that Defendant improperly redacted information from a document 

entitled “The Ohio State University / Renewal Analysis for Policy # 121156” (bates labeled 

#3.2000022–30.) In correspondence, Defendant explained that the pages were redacted or 

withheld because they were non-responsive to the request. (PAGE ID # 2545.) Defendant 

indicates that the redacted pages contain three charts comparing data from long-term disability 

claims covered by other policies issued by Defendant to the policy issued by Defendant to OSU 

(presumably policy number 121156); six charts of data collected from the analyses of disability 

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plans of other employers in OSU’s industry; a statement regarding Defendant’s valued 

partnership with OSU and a notice regarding broker compensation; and a glossary of terms. (Id.) 

Defendant asserts that the charts “were provided so that OSU could analyze its income protection 

plan’s claims experience as compared with other employers within its industry and Unum’s 

block of business for purposes of renewal analysis.” (PAGE ID # 2566.) 

The Court is at a disadvantage because it is not familiar with the renewal analysis 

document and counsel’s description is cursory. Nevertheless, the Court first concludes that the 

renewal analysis and the charts, statement, and glossary that support it constitute a single 

document. The Court further concludes that this document is responsive to document request 

3.3. That request seeks communications between Defendant and OSU reflecting analyses of 

whether the difference between claims paid and premiums collected negatively impacted 

Defendant’s financial interests. The renewal analysis appears, in its entirety, to contain 

information allowing OSU to analyze the claims paid to its employees under its long-term 

disability policy to the claims paid to employees of other employers under different policies 

issued by Defendant. It also appears that this information was provided to OSU during the 

renewal bidding process, which was presumably designed to justify and explain the premiums 

that would be assessed to OSU for the renewed policy. Although this constitutes an indirect 

discussion of Defendant’s tolerable loss-ratio, the Court is at a loss, in the absence of additional 

information, to determine how the document is non-responsive. Counsel does not assert that 

producing unredacted copies of these documents is irrelevant to Plaintiff’s claims, including her 

theory that Defendant treated claims from OSU employees differently than claims made by 

employees of other entities in order to keep OSU’s premiums low. Nor does Defendant contend 

that any relevance is offset by the burdens of production. Defendant is, therefore, ORDERED, 

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to produce unredacted copies of these documents. 

B. Request for Admission 2.2 

Plaintiff also moves to determine the sufficiency of Defendant’s response to its request 

for admission 2.2. Federal Rule of Civil Procedure 36 provides the standard for requests for 

admission. “A party may serve on any other party a written request to admit, for purposes of the 

pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: [ ] 

facts, the application of law to fact, or opinions about either . . . . ” Fed. R. Civ. P. 36(a)(1). 

Section (a)(4) explains the rules for responding to such a request: “If a matter is not admitted, the 

answer must specifically deny it or state in detail why the answering party cannot truthfully 

admit or deny it. A denial must fairly respond to the substance of the matter . . . . ” And, section 

(a)(5) sets the rules for objections: “The grounds for objecting to a request must be stated. A 

party must not object solely on the ground that the request presents a genuine issue for trial.” If a 

court finds that an answer does not meet these requirements, “the court may order either that the 

matter is admitted or that an amended answer be served.” Fed. R. Civ. P. 36(a)(6). 

Although Rule 36 requests for admissions are governed by Rule 26(b)’s relevance 

standards, they are not, strictly speaking, discovery devices. Misco, Inc. v. United Steel Corp., 

784 F.2d 198, 205 (6th Cir. 1986). Instead, they presuppose that the propounding party knows or 

believes the facts sought and merely seeks a concession on that fact from the other party. 8B 

Wright, Miller, & Marcus, Federal Practice and Procedure, § 2253 (3d ed. 2010) (citing Misco, 

784 F.2d at 205; other citations omitted); Wilkinson v. Greater Dayton Reg’l Transit Auth., No. 

3:11CV00247, 2012 WL 3527886, at *1 (S.D. Ohio Aug. 14, 2012); Hendricks v. Ohio Dep’t of 

Rehab. & Correction, No. 2:11-CV-40, 2012 WL 2075317, at *5 (S.D. Ohio June 8, 2012). 

Their “‘proper use is as a means of avoiding the necessity of proving issues which the requesting 

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party will doubtless be able to prove.’” Wilkinson, 2012 WL 3527886, *1 (quoting Khami v. 

Ortho-McNeil Janssen Pharm., Inc., No. 09-cv-11964, 2011 WL 997681 at *2 (E.D. Mich. Mar. 

17, 2011). 

Request for admission 2.2 seeks to have Defendant admit “that during the Time Period 

Unum took, or directed its employees and agents to take, actions other than and/or in addition to 

increasing premiums in response to the Perceived Claims Experience Disparity.” (PAGE ID # 

2521.) Defendant objected to this request on the basis that it was vague, overbroad and unduly 

burdensome with regard to the defined Time Frame, and not or lacking in relevance. (Id.) 

Subject to those objections, Defendant admitted that, 

as part of the January 1, 2014 STD and LTD renewal, the premium billing method 

for LTD Policy No. 121156 was converted from an existing “per employee per 

month” rate basis to a “covered payroll” rate basis in order to allow the premium to 

keep up with employee earnings growth. Except as expressly admitted, Defendant 

denies this request. 

(Id.) 

Plaintiff contends that although she seeks an admission that Defendant took actions in 

addition to raising premiums, Defendant’s response only admits to increasing premiums. (PAGE 

ID # 2514–15.) Defendant counters that in its answer, it has admitted to changing the premium 

billing method in 2014, which constitutes an action that was “in addition” to raising premiums. 

(PAGE ID # 2572.) Defendant also points out that it expressly denied taking other additional 

actions aside from changing the premium billing method. (Id.) 

This answer is insufficient to the extent it encompasses the Time Period defined by 

Plaintiff (January 1, 2009 through December 31, 2015). It is not clear that it does because, as 

discussed, Defendant indicated that it limited its discovery responses to January 1, 2013 through 

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December 31, 2015. To the extent Defendant’s response to this request for admission is 

similarly limited in time, Defendant is ORDERED to amend its answer. 

IV. CONCLUSION 

For the reasons set forth above, Plaintiff’s motions are GRANTED IN PART as 

described in this Order. (ECF No. 83, 84.) Defendant will have TEN (10) DAYS to comply 

with this Order. 

 IT IS SO ORDERED. 

 

/s/ Elizabeth A. Preston Deavers______ 

DATED: November 2, 2020 ELIZABETH A. PRESTON DEAVERS 

 CHIEF UNITED STATES MAGISTRATE JUDGE 

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