United States District Court, E.D. Louisiana
ORDER AND REASONS
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Motion for Protective Order and Motion to Quash, Record Doc.
No. 68, seeks to quash the subpoena duces tecum issued by
plaintiff to James H. Bress, M.D., a reviewing physician
contracted by Unum to review and opine on plaintiff's
claim for disability benefits. The subpoena seeks production
of two categories of Dr. Bress' compensation records: (1)
“any and all records related to your total compensation
for medical services of any kind, including but not limited
to patient care, medical records review, expert services and
consulting services, for the years 2014-2017; (2) “any
and all records related to your total compensation for
services you rendered to Unum Life Insurance Company of
America, or any and all related affiliates, parent company,
and/or subsidiaries . . . for the years 2014 through
2017.” Record Doc. Nos. 68-1 at p. 2, 68-2 at p. 4.
Bress himself has not objected to the subpoena.
Instead, Unum - presumably acting on his behalf - has filed
this motion. Its objections include that the subpoena is
beyond the scope of permissible ERISA discovery; that the
materials are irrelevant, overly burdensome and not
proportional to the needs of the case; and that production
would violate Dr. Bress's privacy rights.
filed a timely opposition memorandum, arguing that the
discovery is relevant and proportional to the existence and
extent of an alleged conflict of interest created by
Unum's dual role in both making benefits determinations
and simultaneously funding and profiting from the plan.
Record Doc. No. 72. Having considered the written submissions
of the parties, the record and the applicable law, IT IS
ORDERED that the motion is GRANTED IN PART in that the
subpoena is modified as provided herein and otherwise DENIED
duces tecum “‘are discovery devices which,
although governed in the first instance by Rule 45, are also
subject to the parameters established by Rule 26.'”
Garvin v. S. States Ins. Exchg. Co., No. 1:04cv73,
2007 WL 2463282, at *5 n.3 (N.D. W.Va. Aug. 28, 2007)
(quoting In re Application of Time, Inc., No.
99-2916, 1999 WL 804090, at *7 (E.D. La. Oct. 6, 1999),
aff'd, 209 F.3d 719, 2000 WL 283199 (5th Cir.
2000)); see Nicholas v. Wyndham Int'l, Inc., No.
2001/147-M/R, 2003 WL 23198847, at *1-2 (D.V.I. Oct. 1, 2003)
(the “clear majority position [is] that use of Rule 45
subpoenas constitutes discovery”); Mortg. Info.
Servs. v. Kitchens, 210 F.R.D. 562, 566-67 (W.D. N.C.
2002) (“a Rule 45 subpoena does in fact constitute
discovery”); accord Martin v. Oakland Cnty.,
No. 2:06-CV-12602, 2008 WL 4647863, at *1 (E.D. Mich. Oct.
21, 2008); Fabery v. Mid-S. Ob-GYN, No. 06-2136,
2000 WL 35641544, at *1 (W.D. Tenn. May 15, 2000). Thus, both
Fed.R.Civ.P. 45 and 26(b) apply to the instant motion.
timely motion, the court for the district where compliance is
required must quash or modify a subpoena that: (iv)
subjects a person to undue burden.” Fed.R.Civ.P.
45(d)(1) (emphasis added). A party seeking to quash or modify
a subpoena “has the burden of proof to
demonstrate that compliance would impose undue burden or
expense. Wiwa v. Royal Dutch Petroleum Co., 392 F.3d
812, 818 (5th Cir. 2004) (emphasis added). Proof actually
establishing the extent of the alleged undue burden is
required to obtain relief, not mere unsupported
generalizations, conclusory statements or assertions.
“Generally, modification of a subpoena is
preferable to quashing it outright.” Id.
(emphasis added). In determining whether a particular
subpoena presents an undue burden, the court must consider
“(1) relevance of the information requested; (2) the
need of the party for the [subpoenaed materials]; (3) the
breadth of the . . . request; (4) the time period covered by
the request; (5) the particularity with which the party
describes the requested [materials]; and (6) the burden
imposed. Further, if the person to whom the . . . request is
made is a non-party, the court may also consider the expense
and inconvenience to the non-party.” Id.
Rule 26, the scope of permissible discovery extends only to
that which is both relevant and within the Rule's
proportionality limits. Fed.R.Civ.P. 26(b)(1). Relevance
focuses on the claims and defenses in the case, not its
general subject matter. Proportionality analysis involves
consideration of various factors, including the importance of
the issues at stake, the amount in controversy, the
parties' relative access to information, the parties'
resources, the importance of the discovery in resolving the
issue, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. In addition,
“[o]n motion or on its own, the court must
limit the frequency or extent of discovery otherwise
allowed by these rules . . . if it determines that (i) the
discovery sought . . . can be obtained from some other source
that is more convenient, less burdensome, or less
expensive.” Fed.R.Civ.P. 26(b)(2)(C) (emphasis added).
is further limited in ERISA cases. Specifically, the United
States Court of Appeals for the Fifth Circuit has held that
discovery in ERISA actions is restricted to “(1) the
completeness of the administrative record; (2) the plan
administrator's compliance with ERISA's procedural
regulations; and (3) the existence and extent of a conflict
of interest created by a plan administrator's dual role
in making benefits determinations and funding the
plan.” Crosby v. La. Health Servs. & Indem.
Co., 647 F.3d 258, 263 (5th Cir. 2011).
the foregoing standards, I find that some of the discovery
sought by plaintiff's subpoena fits into the third
category of permissible discovery identified in
Crosby because it is relevant to the existence and
extent of Unum's alleged conflict of interest. However,
the first, broadly worded category of compensation records
plaintiff seeks; i.e., “any and all records
related to your total compensation for medical services of
any kind, ” is irrelevant standing on its own. Record
Doc. No. 68-1 at p.2. Only the total compensation component
of this request, not “any and all” records
relating to it, becomes relevant to the conflict of interest
issue as a comparator to the second category of information
specific to Dr. Bress' compensation from Unum.
the case law cited by plaintiff in her opposition memorandum,
Record Doc. No. 72 at pp. 3-4, persuasive as to the
proposition that the financial incentives of individuals like
Dr. Bress involved in reviewing benefits claims are relevant
to the conflict of interest issue as to which Crosby
permits discovery. See, e.g., Hogan-Cross v.
Metro Life Ins. Co., 568 F.Supp.2d 410, 414 (S.D.N.Y.
2008) (“The bases for and amounts of compensation paid
to employees and outside consultants involved in
plaintiff's benefit termination itself could prove
relevant to plaintiff's claim.”); Sanders v.
Unum Life Ins. Co. Of America, No. 4:08CV00421, 2008 WL
4493043, at *2, 5 (E.D. Ark. Oct. 2, 2008)(ERISA plaintiff
“will be permitted discovery on the issue of whether
individuals who reviewed his claim had a financial incentive
to deny his claim . . . ” because less deferential
review of an ERISA claim determination is warranted where
plaintiff presents material, probative evidence of a palpable
conflict of interest).
obvious purpose of plaintiff's two requests in
combination is to establish the extent, by a percentage of
his income, to which Dr. Bress is reliant for his livelihood
on money he receives for providing his opinions to Unum.
Unum's own financial incentive to deny plaintiff's
claim is inherent in its dual role. The percentage of Dr.
Bress' compensation received from Unum will establish the
extent of Unum's financial investment in Dr. Bress'
opinions and his overall reliance on that income for his
livelihood. This information is indicative of the conflict of
interest that arises from the financial incentives a plan
administrator and its paid consultants have when they attempt
to act as both decision-maker on applications for plan
benefits and the funder of and profit-makers from the plan.
this mathematical comparison relevant to the conflict of
interest issue, all of the records sought in the first
section of the subpoena are unnecessary. Any single income
record that establishes Dr. Bress' total annual
compensation (for example, the page(s) from his annual
federal income tax return showing gross income) will serve as
a more convenient, less burdensome way to establish the
number plaintiff seeks for these comparison purposes. Such a
modification to the first category of plaintiff's
subpoena is preferable to quashing the subpoena, and limiting
the extent of discovery in this way allows plaintiff to
obtain the requested discovery in a manner “that is
more convenient . . . [and] less burdensome.”
Fed.R.Civ.P. 26(b)(2)(C); Wiwa, 392 F.3d at 818.
reliance on Ehlman v. Kaiser Foundation Health Plan of
Texas, 198 F.3d 552 (5th Cir 2000), in
support of its motion, Record Doc. No. 68-1 at pp. 4-5, is
inapposite in these circumstances. In Ehlman, the
Fifth Circuit held that ERISA itself does not create a broad
duty on behalf of plan administrators to disclose their
physician compensation plans that would support a
free-standing, actionable cause of action for breach of any
such duty. Thus, the court upheld dismissal for failure to
state a claim upon which relief might be granted of a lawsuit
alleging breach of such a duty. In doing so, however, the
Ehlman court recognized the continuing viability of
other precedents holding that disclosure of physician
compensation provisions may be appropriate on a case-by-case,
ad hoc basis in instances involving “specific inquiry