an award of expenses unjust." Fed. R. Civ. P. 37(a)(4){A); see also Rickels v. City of South
Bend, 33 F.3d 785, 787 (7th Cir. 1985) (noting that Rule 37(a)(4) is a fee-shifting rule and the
victor is entitled to fees and expenses). If the motion to compel is granted in part and denied in
part, the court may apportion the reasonable expenses in a just manner. Fed. R. Civ. P.
37(ay(A\(C).

The non-moving party cannot avoid sanctions by producing the information after the
motion to compel is filed. Mlinois Tool Works, Inc. v. Metro Mark Prods., Lid, 43 F. Supp. 2d
951, 960 (N.D. Ill. 1999). Instead, it bears the burden of proving that its initial position was
substantially justified. Rickels, 33 F.3d at 787. If the nonmoving party cannot show this, then
the moving party is entitled to reasonable incurred costs and fees that were the product of the
nonmoving party's failure to provide the requested information and the resulting motion practice.
Illinois Tool Works, 43 F. Supp. 2d at 962.

We first note that Plaintiff made the requisite good faith effort to resolve the discovery
disputes without court intervention. She sent various letters detailing what she believed was
inadequate about Prudential's answers to the interrogatories. We agree with Plaintiff that
Prudential's dispute over Plaintiff's use of the word "denial" was merely a question of semantics.
This Court agrees with Plaintiff that where an insurance company fails to pay that which a
claimant requests, it has denied a claim. And, if there is any legal significance of this term by
statute or case law that would justify Prudential's disagreement over this word, Prudential has not
brought it to the Court's attention.

Regardless, Plaintiff even agreed (in its June 20, 2003 letter), prior to appearing in front

of Judge Grady, and prior to filing the motion to compel, that Prudential should interpret the term

-4-


Prudential states that Plaintiff has clarified the language of this interrogatory such
that it seeks the date on which Prudential first determined that its 24 month
benefit limitation would apply to Plaintiff. Answering further, Prudential states
that while it is not possible to identify a specific date on which Prudential "first"
considered this decision, it appears that on May 22, 2001 Brian Fuller documented
that it was more likely than not that the benefit limitation would apply. This
determination was communicated to Plaintiff's attorney in a telephone call on

July 11, 2001 and in written form on October 18, 2001. While previously
produced, attached hereto are Prudential's May 22, 2001 SOAP Note and June 11,
2001 Telephone Log, documenting these matters.

Its supplemented response to Interrogatory No. 9 was as follows:

Prudential states that Plaintiff has clarified the language of this interrogatory sees

Answering further, Prudential states that while a specific date is impossible to

identify, it appears that on May 22, 2001 Prudential representative, Brian Fuller,

determined that it was more likely than not that Prudential's benefit limitation

would apply. While already produced, attached hereto is Prudential's SOAP Note

from May 22, 2001.

Again, Plaintiff's alleged failure to provide psychiatric and medical records has no
bearing on Prudential's responsibility to provide the requested information. Furthermore, on
June 20, Plaintiff agreed that “deny” referred to Prudential’s position as set forth in its
October 18, 2001 letter. Prudential had ample opportunity to answer this interrogatory, and its
failure to do so was not substantially justified. The parties met at the beginning of August, and
came to an agreement as to what information would be produced. Even if Plaintiff waited until
August 26 to memorialize their discussions, Prudential could have supplemented its response
sooner than October 3. There seems to be no reason why it took all of September to "investigate"

this fairly straightforward question and answer. Sanctions are warranted for Prudential's failure

to respond to Interrogatories Nos. 8 and 9 until after the motion to compel was filed.


A. Interrogatory No. 2

Interrogatory No. 2 states: "Identify the documents relied upon by Prudential in support of
its position asserted in Prudential's October 18, 2001, letter attached hereto as Exhibit A."
Prudential first responded on April 23, 2003, as follows:

Subject to and without waiving objections made above, Prudential will produce

all documents in its custody, possession, and contro] that are responsive to this

request.
After discussion between the parties, Prudential amended its response on October 3 as follows:

Prudential relied on the totality of its record as it existed prior to October 18,

2001. This record included, but is not limited to, Plaintiff's medical records,

Prudential's SOAP Notes, and Prudential's Telephone Call Log. All of the

documents that Prudential relied on in its October 18, 2001 letter have been

previously produced to Plaintiff.

Prudential supplemented its responses on May 28 by producing claim notes entries. It did
not subsequently significantly amend Interrogatory No. 2 after Plaintiff's motion to compel was
filed on July 15. It does not appear that Prudential unduly delayed or incompletely responded to

this interrogatory. Therefore, sanctions are not warranted for Prudential's answers to

Interrogatory No. 2.

B. Iaterrogatory No. 6

Interrogatory No. 6 states: "Identify all persons at Prudential who were involved in any
way in Prudential's decision to deny disability benefits to Plaintiff." Prudential first responded on
April 23, 2003, as follows:

Prudential objects to the form of Interrogatory No. 6 in that Prudential did not

deny Plaintiffs claim, rather, Plaintiff's 24 month Initial Duration expired.

Answering further, Prudential repeatedly requested that Plaintiff provide

psychiatric medical records and history and to date, Plaintiff has failed to comply.

-6-


"deny" as Prudential’s position regarding Plaintiff's claim as it was expressed in Prudential's
October 18, 2001 letter to Plaintiff.* Prudential had no reason to continue to refuse to produce
the information based on Plaintiff's use of the terms "deny" and "denial." Its position was not
substantially justified.‘

We can also see no reason why Prudential did not start gathering information after the
parties met in early August. Although Prudential claims that it was waiting on Plaintiff to
provide a letter summarizing their discussions, its representatives were present at the meeting and
agreed what would be produced. Prudential could have started its investigations sooner than it
did. It wasn’t until September 9 that it sent a letter to Plaintiff indicating that "investigation
continues," and not until October 3 that it provided the requested information.

We will examine each of the contested interrogatories in turn to determine how much

information Prudential actually failed to provide.

* Plaintiff also wrote, "For purposes of clarification, then, the plaintiff's reference to the
‘denial’ of benefits or the claim refers to Prudential's decision that she did not meet the
qualifications under the Plan." Prudential responded seven days later that "Prudential did not
deny benefits in this case, rather . . . Prudential had no other alternative but to determine that
Plaintiff no longer met the qualifications under the plan." (Emphasis added to both letters.)
This nearly identical wording demonstrates that Prudential had no reason to continue to bicker
over Plaintiff's use of the word "denial," although it continued to argue this point for months.

* Prudential even acknowledged that in the June 20, 2003 letter, "Plaintiff finally
clarified what she meant by the ‘denial' of benefits." (Prudential Resp. to PIf.’s Mot. at 9.) In
contrast to its response to Plaintiff's motion, in its subsequent response to Plaintiff's supplemental
teply, also filed with this Court, Prudential claimed, "It was not until August 28, 2003 that
Plaintiff clarified what she meant by ‘deny. (Prudential Resp. to PIf.'s Suppl. Reply at 3.) Thus,
we find Prudential's position disingenuous and unpersuasive. We do not believe its claims that
even though the parties had a dispute over the term “denial” it did not withhold information from
Plaintiff. (Prudential Resp. to Plf.'s Mot. at 8.)

-5-


inform Plaintiff earlier that one of the seven was no longer employed by Prudential, and that
another person was on maternity leave until November.

Prudential could have answered this interrogatory sooner, and its failure to do'so until
after the motion to compel was filed hindered Plaintiff's ability to proceed with the case.
Prudential's argument that it previously identified five of the seven people in its response to
Interrogatory No. 4 only further supports the Court's conclusion that Prudential deliberately
delayed discovery. If it knew the identities of five of the seven people it should have provided
that information back in April, and supplemented its response as soon as it knew the other two
people. Prudential's position was not substantially justified, and therefore sanctions are

warranted for its failure to adequately respond to Interrogatory No. 6.

Cc. Interrogatories Nos. 8 and 9

The responses to Interrogatories Nos. 8 and 9 are substantially the same, so they will be
discussed together. Interrogatory No. 8 states as follows: "Identify the date on which Prudential
first considered denying Plaintiff's claim for disability benefits." Interrogatory No. 9 states as
follows: "Identify the date on which Prudential internally made the decision to deny Plaintiffs
claim for benefits under the Prudential policy." Prudential's original response was:

Prudential objects to the form of [Interrogatories 8 and 9} in that Prudential did

not deny Plaintiff's claim, rather, Plaintiff's 24 month Initial Duration expired.

Answering further, Prudential repeatedly requested that Plaintiff provide

psychiatric medical records and history and to date, Plaintiff has failed to comply.

After discussion between the parties and Plaintiff's motion to compel was filed, Prudential

supplemented its response to Interrogatory No. 8 in October as follows:


rate Ore Foudri07)
United States District Court, Northern District of Mlinois

+
e

serimirtteae | John. Grady | Spe | _-MarinC. Ashman
CASE NUMBER 02 C 5910 DATE 1/28/2004
CASE Brenda Burke vs. The Prudential Insurance Company of America
TITLE
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) im] Filed motion of [ use listing in “Motion” box above.]
Q) oO Brief in support of motiondue_____.
G) Oo Answer brief to motion due. . Reply to answer briefdue__.
4) o Ruling/Hearingon___set for__at : |
() oO Status hearing[held/continued to] [set for/re-set for]on___ set for at
(()) oO Pretrial conferencefheld/continued to] [set for/re-set for]on__——s set for_ wl.
(1) o Trial[set for/re-set for]on__—_—_—at
(8) o {Bench/Jury trial] [Hearing] held/continuedto_ ss at_ |
9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) COlLocal Rule 41.1 CIFRCP41(a)(1) [) FRCP41(a)(2).

(10) MH [Other docketentry) Enter memorandum opinion and order. Plaintiff's motion for sanctions [14-3]
is granted in part and denied in part.

|

a) ff [For further detail see order attached to the original minute order.] |
No notices required, advised in open court. |

No notices required, umber of notices :
of | Notices mailed by judge’s staff. JAN 29 2004 | |
Notified counsel by telephone, |
Docketing to mail notices,
Mail AO 450 form. oa
7 | Cony to judge/mapiooatejadger Lungs domsia sn
i sepa agsh ay StTT wy
initials ————
Datetng esp
Cae het



Copies have been mailed to:

DAVID G. WILLS, Esq.
AMY E. JOHNSON, Esq.
Pretzel & Stouffer, Chtd.
One South Wacker Drive
Suite 2500

Chicago, IL 60606

Attorneys for Plaintiff

LEONARD S. SHIFFLETT, Esq.
BRENDAN O'CONNOR, Esq.
Quarles & Brady, L.L.P.

500 West Madison Street

Suite 3700

Chicago, IL 60661

Attomeys for Defendant


YH. Conclusion
For the foregoing reasons, the Court grants Plaintiff's motion for sanctions in part and
denies Plaintiff's motion in part. Plaintiff is directed to file a fee petition for expenses incurred in
filing her motions and expenses in relation thereto, within 21 days of the date of this order, taking

into account the fact that the Court granted her motion for sanctions for three of the four

interrogatories.
ENTER ORDER:
MARTIN C. ASHMAN
Dated: January 28, 2004. United States Magistrate Judge

-10-


Additionally, the persons who participated in handling Plaintiff's claim are
disclosed in the documents to be produced by Prudential.

After discussion between the parties and Plaintiff's motion to compel was filed, Prudential
supplemented its response on October 3, 2003, as follows:

Prudential states that Plaintiff has clarified the language of this interrogatory such

that it seeks the identification of persons at Prudential who were involved in the

decision that Prudential's 24 month benefit limitation applied to Plaintiff.

Answering further, Prudential states that the following persons were involved in

that decision: [7 employees identified by name and position in the company).

The Court agrees that Prudential's initial response to Interrogatory No. 6 was incomplete.
As Prudential acknowledged, the failure of the parties to agree to a protective order regarding
Plaintiffs psychiatric records is not relevant to Plaintiff's motion, (Prudential Resp. to PIf.'s Mot.
at 10), just as it was not relevant to Prudential's responses to Plaintiff's interrogatories.
Prudential cannot withhold discovery merely because it believed that Plaintiff had not provided
all of her psychiatric medical records. Self-help in litigation is not condoned by the courts.

Furthermore, Prudential produced many documents, and it was unreasonable for it to
expect Plaintiff to sort through all the documents in order to speculate as to who were the key
players in Prudential's decision regarding Plaintiff's benefits. The instructions to the
interrogatories defined "identify" when used in connection with a natural person as providing
“his or her full name, present or last known business and home address and business and home
telephone numbers, job title, and to state the relationship, business or otherwise, between such
person and the person answering the interrogatory." Prudential should have provided the full
names as instructed, rather than just a stack of documents (which may or may not have included
these people's names), and should have indicated if the person was no longer employed at

Prudential. It failed to comply with these instructions until October 3, and did not bother to

-T-


meet and work out the discovery issues together. After the parties met in early August,
Prudential sent Plaintiff a letter reminding her that she was supposed to memorialize the
substance of their meeting. Two days later, on August 28, Plaintiff sent an e-mail to Prudential
which reiterated again what discovery was still incomplete. Prudential sent a letter to Plaintiff
informing her that “investigation continues" on September 9th.

Finally, on October 3, a few days before the parties were scheduled to appear for status in
front of this Court, Prudential further supplemented its answers to the interrogatories and
provided an Affidavit of Completeness that was (inexplicably) dated September 9.

This Court heard oral argument on the motion for sanctions (the motion to extend.
discovery having been granted and the motion to compel having been terminated as moot). The
parties were given the opportunity to additionally brief this issue after the oral argument and have

provided supplemental briefs.

Tl. Discussion

Plaintiff asks this Court for sanctions against Prudential for its failure to respond to
discovery which necessitated the motion to compel. Pursuant to Federal Rule of Civil Procedure
37(a)(4)(A), if a motion to compel is granted, or the nonmoving party produces the information
sought after the motion to compel is filed, the moving party may be awarded reasonable
expenses, including attorney's fees, incurred in bringing the motion. The motion for sanctions
will be granted unless the moving party failed to make a good faith effort to obtain the
information without court action. Fed, R. Civ. P. 37(a)(4)(A). The nonmoving party may also

avoid the sanctions if its position was "substantially justified, or that other circumstances make

-3-


On March 12, 2003, Plaintiff propounded discovery requests on Prudential. Prudential
responded on April 23,” but some of its responses noted: “Prudential repeatedly requested that
Plaintiff provide psychiatric medical records and history and to date, Plaintiff has failed to
comply.” (£.g. Prudential Resp. to Interrog. No. 6.) Prudential also objected to “the form of
Intertogatory No. 8 [and 9] in that Prudential did not deny Plaintiffs claim, rather, Plaintiff's 24
month Initial Duration expired." The text of the disputed interrogatories will be set forth in the
Discussion section below.

On May 21, Plaintiff sent a letter to Prudential detailing the incompleteness of its
responses, and Prudential responded by producing claim notes entries. Next, and of significance
to our analysis, Plaintiff sent another letter to Prudential seeking more information on June 20.
The letter conceded, with respect to the disagreement over the word “deny,” that "it is clear from
the nature of this dispute and the discovery propounded upon Prudential that the plaintiffs are
referring to Prudential's decision to rely upon the ‘mental, psychoneurotic or personality disorder
exclusion, which is clearly set forth in Prudential’'s October 18, 2001, letter."

Prudential responded seven days later and produced documents relating to its policies
regarding Social Security benefit offsets. It also reiterated its position that "Prudential did not
deny benefits in this case, rather, based on Plaintiff's failure to cooperate in producing her
psychological records, Prudential had no other alternative but to determine that Plaintiff no
longer met the qualifications under the plan."

On July 15, 2003, Plaintiff filed motions to extend discovery, to compel, and for

sanctions, The parties appeared before Judge Grady on July 23, 2003, who instructed them to

2 Plaintiff granted an extension of time to Prudential to respond to the discovery requests.
-2-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
BRENDA BURKE, )
)
Plaintiff, ) Case No. 02 € 5910
)
Vv. ) Judge John F. Grady
) ;
THE PRUDENTIAL INSURANCE ) Magistrate Judge 00,
COMPANY OF AMERICA, ) Martin C. Ashman CKETED
) J
Defendant. ) AN 2 9 2004
MEMORANDUM OPINION AND ORDER

This case is before the Court on Plaintiff Brenda Burke's motion for sanctions.' For the
reasons set forth below, the Court finds that Plaintiff's motion should be granted in part and

denied in part.

I. Background

Plaintiff filed this action against Defendant Prudential Insurance Company of America
alleging that Prudential has denied her the long term disability benefits that she is entitled to
under a policy issued by Prudential to AON Corporation, Plaintiff's former employer. The
disability policy excludes any disability that is caused even partially by a psychological problem,
except for the first 24 months of disability. Prudential claims that the 24 month benefit limitation
applied to Plaintiff and that it did not pay Plaintiff beyond the 24 months because she no longer

met the qualifications for benefits under the policy.

‘ This matter comes before this Court pursuant to 28 U.S.C. § 636(b)(1)(A) and Local
Rule 72.1.