*1 Plaintiff Hong–Ngoc Dao (“Dao”) filed this lawsuit against her insurer Liberty Life Assurance Company of Boston (“Liberty”) based on its alleged wrongful denial of a long term disability benefits claim. The case has been referred to this Court for discovery. Now before the Court is Plaintiff's motion to compel responses to Interrogatories 5, 7 and 10.[1] For the reasons discussed at the hearing on February 16, 2016 and in this Order, the motion to compel is denied without prejudice.

While employed as a Research Policy Manager for the University of California Office of the President, Plaintiff purchased supplemental short term and long term disability insurance through a group policy issued by Liberty. In July 2013, Plaintiff stopped working due to a reported increase in migraine headaches and submitted a claim in October 2013. Plaintiff was approved for short-term disability benefits through October 31, 2013 pending receipt of medical records. Plaintiff's leave was extended through January 2014, when Liberty informed Plaintiff that it would begin a long term disability review. The parties dispute whether Plaintiff and her doctors were responsive to Liberty's requests for information during the review. Plaintiff's long term disability claim was denied in August 2014. Plaintiff was informed that she could request review of the denial. In October 2014, after communication with Plaintiff's counsel, Liberty reopened Plaintiff claim and reinstated benefits retroactively.

Plaintiff filed suit on October 26, 2014 for breach of contract, breach of the covenant of good faith and fair dealing, fraud, negligent misrepresentation, declaratory relief and unfair competition. In April 2015, the presiding judge granted a stipulation allowing Plaintiff to supplement her complaint. In July 2015, the presiding judge granted in part and denied in part Defendant's motion to withdraw its answer and dismiss the complaint and dismissed the breach of contract claim. The court did not dismiss Plaintiff's claim for declaratory relief regarding certain provisions in the policy, including a challenged discretionary clause and a Social Security offset provision, finding it “prudent to resolve those questions on summary judgment rather than on a motion to dismiss.” Dkt. No. 61 at 3. The presiding judge then granted in part a motion for reconsideration, and allowed Plaintiff to file an amended complaint. Dkt. No. 80. Plaintiff filed a first amended complaint on October 13, 2015, then obtained new counsel, and filed this Motion to Compel on November 20, 2015. Thereafter the parties met and conferred and narrowed the scope of their dispute to three interrogatories for which Liberty refuses to provide a response.

*2 Apparently, the Social Security Administration has deemed Plaintiff disabled and retroactively awarded her benefits as of July 5, 2013. When Liberty learned of this during the course of this litigation, it informed Plaintiff that her benefits had been overpaid due to a Social Security offset provision in her policy and the overpayment needed to be repaid to Liberty. Plaintiff did not respond and “in August 2015 Liberty began reducing Plaintiff's benefits payments to recoup the overpayment in accordance with the policy terms.” Opp. at 4. On January 16, 2016, after the close of fact discovery, Plaintiff filed a motion for leave to file a second amended complaint to include additional allegations relating to Liberty's deduction of benefits to offset her Social Security payments. That motion is set to be heard by the presiding judge on February 26, 2016.

This case was filed on October 26, 2014 and Liberty's responses to the discovery requests at issue were served in May 2015. The motion to compel was filed on November 20, 2015 and meet and confer efforts and briefing continued through January 2016. The Federal Rules of Civil Procedure, including Rule 26 at issue here, were amended on December 1, 2015. Given the timing of this case and the discovery at issue, the Court considers whether the amended versions of these rules apply.

One court has recently addressed the issue of how to apply the amended rules to cases pending before their December 1, 2015 effective date. See CAT3, LLC v. Black Lineage, Inc., No. 14 CIV 5511(AT)(JCF), 2016 WL 154116, at *4–5 (S.D.N.Y. Jan. 12, 2016). That court stated that:

Id. The CAT3 court concluded that, “both the Supreme Court's order and the governing statute create a presumption that a new rule governs pending proceedings unless its application would be unjust or impracticable.” Id. (citing 2015 U.S. Order 0017; 28 U.S.C. § 2074(a)). The issue before the Court in CAT3 was sanctions under Rule 37(e), and whether to apply the previous version or the current version of the rule to a case pending before its effective date. The court reasoned that because the amended version of the rule does not place a greater substantive obligation on parties preserving ESI, and is in some respects more lenient as to the sanctions that can be imposed for violation of the preservation obligation, there would be no inequity in applying it to a pending case. Id.

Here, the previous version of Rule 26(b)(1) provided in pertinent part that:

*3 As amended effective December 1, 2015, Rule 26(b)(1) provides that:

Fed.R.Civ.P. 26(b)(1). In discussing the impact of this amendment, one court of this district has recently explained that, “No longer is it good enough to hope that the information sought might lead to the discovery of admissible evidence. In fact, the old language to that effect is gone. Instead, a party seeking discovery of relevant, non-privileged information must show, before anything else, that the discovery sought is proportional to the needs of the case.” Gilead Scis., Inc. v. Merck & Co, Inc., No. 5:13–CV–04057–BLF, 2016 WL 146574, at *1 (N.D.Cal. Jan. 13, 2016).

The Rules Committee has made clear in its Notes on the 2015 Amendments that “[t]he present amendment restores the proportionality factors to their original place in defining the scope of discovery” and “reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses or objections.” SeeFed.R.Civ.P. 26, advisory committee's note to 2015 amendment. The Committee further explained that “[r]estoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality.” Id. Thus, while the language of the Rule has changed, the amended rule does not actually place a greater burden on the parties with respect to their discovery obligations, including the obligation to consider proportionality, than did the previous version of the Rule. Thus, it would not be “unjust” or “inequitable” to apply the amended version of Rule 26 to this discovery dispute.

Defendant argues that Plaintiff did not properly meet and confer before filing this motion. While the meet and confer efforts should have been more robust prior to the filing of the motion, after it was filed, the parties met and conferred, stipulated to continue briefing and hearing dates while they resolved some of the issues raised in the motion, and ultimately resolved some of their disputes. Therefore, the motion will not be denied for failure to meet and confer.

Interrogatory No. 5:

IDENTIFY all disability insurance policies (group or individual) issued by YOU from 2010 through to the present that contain a Social Security Administration benefits offset provision.

Liberty's Response:

Liberty Life objects on the ground the request seeks information that is neither relevant nor calculated to lead to the discovery of admissible evidence. Liberty objects to this request as being unduly burdensome and harassing. Liberty Life further objects to this request on the grounds that this is overbroad as to time and scope, vague and ambiguous as to “Social Security Administration benefits offset provision”, and seeks confidential financial information of third parties. Defendant further objects that the documents requested are protected from disclosure pursuant to California Insurance Code § 791.13 et seq. and the request invades the privacy rights of third parties.

*4 Interrogatory No. 7:

State in U.S. dollar amounts the total reduction in benefit payments YOU have made in reliance on any Social Security Administration offset provision in any disability insurance policy issued by YOU in the state of California for each year from 2010 through the present.

Liberty's Response:

Liberty Life hereby objects to this request on the grounds that this is overbroad as to time and scope, vague and ambiguous, burdensome and harassing, and seeks confidential, proprietary commercial information and/or trade secrets. Liberty Life further objects on the ground the request seeks information that is neither relevant nor calculated to lead to the discovery of admissible evidence. Liberty Life also objects to this interrogatory as violating Federal Rule of Civil Procedure 33(a)(l), which requires that “all discrete subparts” of an interrogatory be counted as separate interrogatories. Each subpart in this interrogatory therefore constitutes a separate interrogatory and is treated as such. See Waterbury v. Scribner, 2008 U.S. Dist. LEXIS 53142 at *7–8, 2008 WL 2018432 (E.D.Cal. May 8, 2008) (“Plaintiffs requests for the separate years from 2004 through to the present are separate and distinct. Interrogatories 2, 3 and 4 will be treated as five separate interrogatories, for a total of fifteen ( 15) interrogatories.”).

Liberty's objections to these interrogatories are non-specific and boilerplate. Rule 33(b)(4) requires that “[t]he ground for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.”[2] Liberty's boilerplate objections are insufficient and could be deemed waived. However, Plaintiff has not argued for waiver, and instead the parties have met and conferred in detail about the merits of the objections and the substance of the objections has been fully briefed. The Court therefore will not deem Liberty's objections waived for lacking specificity, but cautions both sides to comply with the requirement set forth in the federal rules that the grounds for objections be stated with specificity.

Liberty opposes Plaintiff's motion to compel a response to Interrogatory No. 5 in part on the grounds that the burden of this request outweighs any potential advantage to Plaintiff because providing a response to this interrogatory would require it to manually review all 946 policies issued since 2010 to identify which contain a Social Security offset provision. Liberty estimates that, if someone could review each of these 946 policies in ten minutes, it would still take 157.7 hours to complete this task. McGee Decl. ¶ 4. With respect to Interrogatory No. 7, Liberty provides a declaration estimating that providing a response to this interrogatory would require it to manually review 161,427 claim files to identify those where a Social Security offset was taken and then calculate the amount of the offset. Liberty estimates that, if someone could review each of these 161,427 claim files and make this calculation in ten minutes, it would still take 26,904.5 hours (or approximately 672 weeks, or 13 years) to complete this task. McGee Decl. ¶ 5. Liberty points out that the only actual financial damage currently alleged is a $2,000 loan from Plaintiff's boyfriend that she has been unable to repay. See Tucker Decl. Ex. 10.

*5 Plaintiff argues in general terms that Liberty undervalues her case because she has alleged bad faith, misrepresentations and related causes of action, so a trier of fact could award her significant tort damages in excess of actual damages. However, she does not give an estimate of the value of her case. She also asserts that it “defies credulity” that a large nationwide insurance company does not have automated records that could be electronically searched, but does not provide any evidence to refute Liberty's declaration.

As discussed during the hearing, neither side has adequately addressed the issue of proportionality or discussed the factors listed in amended Rule 26. The Court has given preliminary consideration to the proportionality of the discovery sought in light of the Rule 26 factors. On the one hand, as to the relative importance of the issues at stake, this is a straightforward individual benefits determination challenge, not a civil rights, First Amendment or other case implicating important public rights on a broad scale; the amount in controversy appears modest given Plaintiff's $2,000 in actual damages; it is not clear that the discovery sought is necessary or even especially important to resolving the issues in this litigation; and the burden of production is great. On the other hand, as to the parties' relative resources, Plaintiff is a disabled individual and Liberty is a large insurance company, and there is no indication that Plaintiff would otherwise have access to the information she seeks if discovery is not ordered. On balance, it appears that the burden and expense of the broad discovery as propounded outweighs its likely benefit.

Nonetheless, as the Court pointed out at the hearing, it is not necessary to definitively resolve the questions of relevance and proportionality at this time. The parties agree that the issue of the Social Security offset provision is a purely legal question upon which the presiding judge has not yet ruled. Considerations of relevance and proportionality turn largely on how the presiding judge ultimately rules on this legal question. Specifically, if the Social Security offset provision is found to be legal, than discovery into the frequency of its application to other insureds is entirely irrelevant. If the Social Security offset provision is found to be illegal, then the discovery sought by Plaintiff through interrogatories 5 and 7 may arguably have some marginal relevance to Plaintiff's claim for bad faith and enhanced damages. However, Liberty has presented undisputed evidence that collecting this discovery would be highly burdensome. Furthermore, so far Plaintiff has not made any proposals to focus its requests more narrowly to alleviate the burden, nor has Defendant made any proposals of its own for doing so. Whether or not the burden is proportional to the needs of the case as a whole, considering the factors listed in Rule 26, depends in the first instance on how the presiding judge rules on the overarching legal question. Therefore, the Court suggested at the hearing that the most efficient course of action is to deny this motion to compel without prejudice, at least until the presiding judge rules on the legality of the Social Security offset provision, and the parties agreed.

Interrogatory No. 10:

IDENTIFY all disability insurance policies (group or individual) issued by YOU in the state of California from 2010 through the present that contain or contained a grant of discretionary authority to YOU.

*6 Liberty's Response:

Liberty Life objects on the ground the request seeks information that is neither relevant nor calculated to lead to the discovery of admissible evidence. Liberty objects to this request as being unduly burdensome and harassing. Liberty Life further objects to this request on the grounds that this is overbroad as to time and scope, vague and ambiguous to “grant of discretionary authority” and seeks confidential financial information of third parties. Defendant further objects that the documents requested are protected from disclosure by California Insurance Code section 791.13 et seq. and the request invades the privacy rights of third parties.

As discussed above with respect to Interrogatories 5 and 7, Liberty's objections to Interrogatory 10 are non-specific and boilerplate. The Court will not deem Liberty's objections waived for lacking specificity, but cautions both sides to comply with the requirement set forth in the federal rules that the grounds objections be stated with specificity.

As with discovery relating to the Social Security offset provision discussed above, considerations of proportionality and relevance of discovery relating to the challenged discretionary clause turn on how the presiding judge rules on the legal question of the propriety of this contract provision. If the clause is legal, no discovery into other insureds is warranted, but the result may be different if the presiding judge deems the discretionary clause illegal. Therefore, as above, the parties accepted the Court's suggestion that it would be most efficient to deny this portion of the motion to compel without prejudice until they have a ruling on the legality of the discretionary clause.

For the foregoing reasons, the motion to compel is denied without prejudice.

IT IS SO ORDERED.

Plaintiff's moving papers sought to compel responses to several interrogatories and requests for production. However, after the motion was filed the parties further met and conferred and resolved a number of their disputes without Court intervention.

Unlike Rule 34, which was amended on December 1, 2015 to require specific objections for requests for production, Rule 33 governing interrogatory responses previously included the requirement of specificity. Thus, there is no question that Liberty was and is required to object with specificity regardless of the rules amendments.