UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DONALD FESSENDEN,

Plaintiff,

v.

RELIANCE STANDARD LIFE 

INSURANCE COMPANY, et al.,

Defendants.

)

)

)

)

)

)

)

)

)

)

CASE NO. 3:15-CV-370-PPS-MGG

OPINION AND ORDER

Pending before the Court are two motions: Plaintiff’s Motion to Compel [DE 79], 

issued to third party Dane Street, LLC, and Defendant Reliance’s Motion to Compel [DE 

105], issued to Plaintiff. Each is addressed below.

I. RELEVANT BACKGROUND

This action arises under the Employee Retirement Income Security Act of 1974 

(“ERISA”), 29 U.S.C. § 1001. Plaintiff Donald Fessenden (“Plaintiff”) seeks long term 

disability benefits under his employer Oracle America, Inc.’s employee welfare benefits 

plan; Defendant Reliance Standard Life Insurance Co. (“Reliance”) is the claim 

administrator for the plan. Reliance denied Plaintiff’s initial application for long term 

disability benefits on October 27, 2014. Plaintiff subsequently appealed Reliance’s

denial. When Reliance failed to issue a determination on the appeal within ninety days,

as is required by ERISA regulations, Plaintiff filed this action.
2

On June 25, 2019, the United States Court of Appeals for the Seventh Circuit 

determined that a de novo standard of review applies in this case due to Reliance’s

tardiness in issuing a decision on Plaintiff’s appeal. Fessenden v. Reliance Standard Life 

Ins. Co., 927 F.3d 998, 999–1000 (“When a plan administrator commits a procedural 

violation, . . . it loses the benefit of deference and a de novo standard of review 

applies.”). In denying a Motion to Conduct Standard Discovery filed by Plaintiff prior 

to the Seventh Circuit’s determination, this Court applied the deferential arbitrary and 

capricious standard of review, which normally governs ERISA cases. [DE 33]. The 

parties now disagree about how to apply a de novo standard of review to the pending

discovery in this case.

On October 18, 2019, Plaintiff filed a Motion to Compel third party Dane Street, 

LLC’s (“Dane Street) compliance with a subpoena. [DE 79]. Reliance hired Dane Street, 

an independent medical examination and medical peer review company, to generate a 

medical record review of Plaintiff’s claim. That review, conducted for Dane Street by 

Dr. Michelle Park, ultimately served as the basis of Reliance’s denial of Plaintiff’s claim. 

Plaintiff’s subpoena requested information (1) related to the relationship between Dane 

Street and Reliance Standard, (2) provided by Reliance Standard to Dane Street 

concerning Plaintiff’s claim, (3) regarding Dane Street’s selection and training of record 

reviewing physicians, and (4) related to the relationship between Dane Street and Dr. 

Park and the resulting record review utilized by Reliance to deny Plaintiff’s claim. [DE 

79 at 3].
3

On January 9, 2020, Dane Street filed its response to Plaintiff’s Motion to Compel

noting that it had provided responses to a number of the subpoena’s requests and had 

communicated to Plaintiff that they had no documents responsive to others. [DE 107]. A 

subsequent Protective Order agreed to by Plaintiff, Reliance, and Dane Street facilitated 

production of several other documents requested by the subpoena. [DE 115]. Yet, 

disputes remain over Dane Street’s responses regarding pricing charged by Dane Street 

to Reliance between 2012 and 2014 and payments made based on the same; all 

payments to Dr. Park for any medical examinations, reviews, or consultations between 

2012 and 2014; all reports generated by Dr. Park to Dane Street for disability claims 

between 2012 and 2014, and statistics regarding the same; and all payments received by 

Dane Street from any company for reviewing disability claims from 2010 to 2017.

On January 7, 2020, Reliance filed its own Motion to Compel seeking full 

responses to its request for production of documents served upon Plaintiff. [DE 105]. 

Reliance requests records pertaining to Plaintiff’s application for disability income 

benefits from the Social Security Administration (“SSA”) and the SSA’s final decision; 

Plaintiff’s medical records from 2014 to present; records pertaining to Plaintiff’s work 

history with Oracle and any subsequent employment; Plaintiff’s tax returns and records 

regarding other income sources from 2014 to present; and records of Plaintiff’s personal 

activities and functionality. Plaintiff objects to Reliance’s requests arguing primarily

that they exceed the scope of discoverable information even under the de novo standard 

of review.
4

II. ANALYSIS

In an ERISA case, if the benefit plan gives the claim administrator discretionary 

authority to determine eligibility for benefits, the district court must review a denial of 

benefits under a deferential “arbitrary and capricious” standard. Hess v. Reg-Ellen Mach. 

Tool Corp. Emp. Stock Ownership Plan, 502 F.3d 725, 727 (7th Cir. 2007). When the 

standard of review is deferential, the district court’s review must be limited to the 

administrative record. Krolnick v. Prudential Ins. Co. of Am., 570 F.3d 841, 843 (7th Cir. 

2009). This means that discovery is generally disallowed in ERISA cases where the 

arbitrary and capricious standard applies. See Perlman v. Swiss Bank Corp. Comprehensive 

Disability Prot. Plan, 195 F.3d 975, 981–82 (7th Cir. 1999). However, where a court 

exercises de novo review over an ERISA claim, like the Court does here, it “may, in its 

discretion, hear new evidence.” Patton v. MFS/Sun Like Fin. Distribs., Inc., 480 F.3d 478, 

483 (7th Cir. 2007). 

Numerous factors are relevant to a district court’s decision to allow discovery of 

new evidence in an ERISA case. The most important factor is “whether the evidence is 

necessary to an informed and independent judgment on the parties’ claims and 

defenses.” Id. at 491 (internal quotation marks omitted). This depends, in turn, on the 

nature of the claims presented and whether the administrative record was “relatively 

undeveloped” with respect to those claims. Id. Other relevant factors may include 

whether the plan administrator faced a conflict of interest or whether the parties had a 

chance to present their evidence in the administrative proceeding. See id. If the 

administrative record contains comprehensive evidence, then additional discovery may 
5

be curtailed to avoid “undue burden or expense.” Krolnik, 570 F.3d at 843. Indeed, even 

under de novo review, “a court should not automatically admit new evidence whenever 

it would help to reach an accurate decision.” Patton, 480 F.3d at 492. A district court 

should admit new evidence only after carefully considering the relevant factors and 

finding that the benefits of increased accuracy exceed the costs. Id.

A. Plaintiff’s Motion to Compel [DE 79]

Through his Motion to Compel, Plaintiff requests from Dane Street information 

relating to pricing charged by Dane Street to Reliance between 2012 and 2014 and 

payments made based on the same; information regarding all payments made to Dr. 

Park for any medical examinations, reviews, or consultations between 2012 and 2014; all 

reports generated by Dr. Park to Dane Street for disability claims between 2012 and 

2014, and statistics regarding the same; and information regarding all payments 

received by Dane Street from any company for reviewing disability claims from 2010 to 

2017. Plaintiff claims that this information specifically is necessary to “fully evaluate the 

process by which Dane Street and Dr. Park reviewed and adjudicated Don Fessenden’s 

claim on behalf of Reliance Standard, the legitimacy and credibility of Dane Street’s 

record reviewing process, the legitimacy and credibility of Dr. Park’s record review, 

whether bias played any role in Reliance Standard’s selection of Dane Street to conduct 

a record review in this claim, any bias on the part of Dane Street in its record reviewing 

process and any bias by Dr. Park in supporting the denial of the claim.” [DE 79 at 3–4]. 

The potential for bias or conflict of interest is the primary argument animating

Plaintiff’s remaining requests for information. Dane Street objects to these requests as 
6

irrelevant, overbroad in terms of time and scope, unduly burdensome, not proportional 

to the needs of the case, extensively peripheral and tangentially related, and seeking 

highly confidential business and proprietary information. [DE 107 at 3].

Prior to the change in standard of review in this case, Plaintiff requested 

information regarding financial incentives, bias, or motivations that might have been 

involved in Reliance’s claim process based upon a similar argument that a financial 

conflict of interest existed as between Reliance, Dane Street, and Dr. Park. [DE 31]. This 

Court denied Plaintiff’s motion to conduct discovery to determine the extent to which 

Reliance’s alleged conflict of interest influenced the denial of his claim based on its 

finding that Plaintiff failed to make “some showing that something besides the 

administrative record [was] necessary to assess the effect” of such a structural conflict. 

[DE 33 at 8]. The Court found there that Plaintiff “failed to show even an inference of 

misconduct” by Reliance in the handling of his claim, and that Reliance’s Principles 

document, which details Reliance’s active steps to eliminate any bias affecting 

independent medical professionals, mitigated any inference of undue influence. [DE 33 

at 8–10]. 

Dane Street points to this prior order denying discovery, claiming that the

application of a de novo standard of review does not change the analysis and that 

Plaintiff’s Motion to Compel should be denied because he has again failed to proffer 

any further evidence of bias or conflict of interest. Dane Street’s argument is well taken.

Though a de novo standard of review allows for a broader scope of discovery, it does not 

automatically allow discovery of new evidence—it allows only for discovery of 
7

evidence that is “necessary” to an “informed and independent judgment” on the 

parties’ claims. See Patton, 480 F.3d at 491. It is true that a factor a court should consider 

in deciding whether to allow discovery of new evidence is “whether the plan 

administrator faced a conflict of interest.” However, Plaintiff has not presented any 

evidence that would tend to demonstrate that a conflict of interest exists, and thus that 

discovery of the information sought through this Motion to Compel is necessary for the 

Court to make an informed and independent judgment on Plaintiff’s claim.

The de novo standard of review does not change this Court’s earlier finding that 

Plaintiff has adduced no evidence tending to point to a conflict of interest existing

between Reliance, Dane Street, and Dr. Park that affected the claim evaluation process. 

Reliance’s Principles and the fact that it utilizes Dane Street, a third-party vendor, to 

provide independent medical reviewers mitigates any inference of bias or impropriety 

in the review process. By requesting information relating to Dane Street’s pricing, 

Reliance’s payments pursuant thereto, and Dr. Park’s compensation without offering 

any more substantial grounds for suspecting a conflict of interest, Plaintiff embarks on a 

fishing expedition. Had Plaintiff provided a scintilla of evidence to afford the Court 

with a reason to believe that a conflict of interest may have existed, production of the 

requested information may have been necessary for the rendering of an informed and 

independent judgment. However, the Plaintiff has not produced any evidence tending 

to support such a belief, and so discovery on these issues is unwarranted. Therefore, the 

Court denies Plaintiff’s Motion to Compel.
8

B. Reliance’s Motion to Compel [DE 105] 

Through its Motion to Compel, Reliance requests from Plaintiff information 

relating to Plaintiff’s application for disability income benefits from the SSA, including 

the SSA’s final decision; Plaintiff’s medical records from 2014 to present; information 

relating to Plaintiff’s work history, including any employment since 2014; Plaintiff’s tax 

returns and income sources from 2014 to present; and Plaintiff’s personal records of his 

daily activities and functionality. Reliance claims that Plaintiff’s SSA records, medical 

records, and personal recordings of daily functionality are relevant to Reliance’s 

affirmative defenses to liability and relate back to Reliance’s rationale for denying 

Plaintiff’s claim. Reliance further claims that Plaintiff’s work records and tax returns are 

relevant to the issue of damages should Reliance ultimately be found liable because any 

compensation received by Plaintiff in the years since his application would offset the 

amount owed by Reliance under the policy. As to the requests for employment records 

since 2014, records of income since 2014, and personal recordings of daily functionality 

since 2014, Plaintiff claims that no such records exist, as he has not worked since 2014 

nor received income in any other form, and he has kept no personal records of his daily 

activities and functionality. As to the requests for his SSA application records, his 

medical records since 2014, and his tax returns since 2014, Plaintiff objects arguing that 

Reliance did not rely upon any of this information in denying him benefits and thus this 

information could only be used to fashion impermissible post hoc rationales for denial. 

Plaintiff’s objections to the requests for his updated medical records, updated 

work history, tax returns and records of income sources, and records of his daily 
9

activities and functionality are well taken. This is an ERISA case, and all such cases are 

based on fixed administrative record, regardless of the standard of review applied. 

While the de novo standard of review applicable here allows for somewhat broader 

discovery than does the more deferential arbitrary and capricious standard, discovery 

under de novo review must still be limited to that information which is necessary for the 

court to make an informed and independent judgment on the issues in the particular 

case. See Patton, 480 F.3d at 491. In other words, discovery must be curtailed to evidence 

related to the fixed administrative record and the information and events surrounding 

that record. Therefore, Plaintiff’s medical records since the time of Reliance’s decision 

are not relevant because Reliance’s 2014 denial of Plaintiff’s application for benefits was 

based on Plaintiff’s physical state and medical records thereof at that time. Therefore, 

Plaintiff’s medical records from the time of the denial to present are not relevant to the 

issue of Plaintiff’s disability in 2014 and should not be subject to discovery. 

As Reliance suggests, however, Plaintiff’s work history, tax returns, and records 

of other income sources for purposes would be relevant to determining whether the 

damages owed to the Plaintiff should be offset should Reliance be found liable. Indeed, 

information related to damages is relevant generally. Here though, Plaintiff has already 

noted that he has not worked at all since the denial of benefits in 2014 and has had no 

other sources of income. Plaintiff cannot produce what does not exist. Therefore, he

need not provide any further response to these damages-related requests. Yet Plaintiff is 

reminded of his obligation to supplement his responses to these requests under Fed. R. 

Civ. P. 26(f) should anything change. Similarly, Plaintiff need not provide any further 
10

response to Reliance’s request for records of his daily activities and functionality, as 

Plaintiff has already noted that no such records exist. 

Reliance’s Motion to Compel only succeeds with regard to its request for 

information relating to Plaintiff’s SSA application for disability income benefits, 

including records of the SSA’s final decision. Reliance’s letter denying Plaintiff’s 

application for benefits in 2014 stated that the denial was based on Plaintiff’s claim file, 

which included the SSA’s initial denial of Plaintiff’s claim for benefits. However, the 

SSA did not render a final decision on Plaintiff’s claim until after Reliance’s denial in 

2014. As a result, the SSA’s final decision on Plaintiff’s application for benefits is 

relevant now to the fixed administrative record and the surrounding information and 

events because Reliance’s denial was based in part on the SSA’s initial decision. See 

Patton, 480 F.3d at 491. Accordingly, the Court grants in part Reliance’s Motion to 

Compel as to its request for records of the SSA’s final decision on Plaintiff’s application 

for disability income benefits and denies it in part as to all other requests.

III. CONCLUSION

For the reasons discussed above, the Court:

(1) DENIES Plaintiff’s Motion to Compel [DE 79] as to the subpoena issued to 

Dane Street; and

(2) GRANTS IN PART and DENIES IN PART Reliance’s Motion to Compel 

[DE 105] as outlined above.
11

SO ORDERED this 14th day of April 2020.

s/Michael G. Gotsch, Sr.

Michael G. Gotsch, Sr.

United States Magistrate Judge