On August 13, 2021, the Court granted the Plan's request that the Court require Sedgwick to produce, for in camera inspection, the lone document that remained at issue from the subpoena: Sedgwick's contract with Network Medical Review Company, Ltd. (the “NMR Agreement”). Later that same day, Sedgwick provided the Court with redacted and un-redacted versions of the NMR Agreement. (See ECF No. 27.) The Court has reviewed the documents and, for the following reasons, the renewed motion is GRANTED.

This dispute arises from a matter pending in the Eastern District of California in which the plaintiff, Ruby Chacko, challenges the Plan's termination of her claim for long-term disability benefits under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. See generally Chacko v. AT&T Umbrella Benefit Plan No. 3, 19-cv-01837-JAM-DB (E.D. Cal.). AT&T funds the Plan, which is administered by Sedgwick. (ECF No. 24-1, at 3.) Sedgwick has contracted with Network Medical Review Company, Ltd. (“NMR”) to perform independent medical reviews of claims administered by Sedgwick. (ECF No. 11, at 2.) The NMR Agreement governs NMR's review of a variety of claim types for a number of Sedgwick clients, not just long-term disability claims administered for AT&T. (Id.)

In the underlying litigation, the district court has permitted Chacko to conduct limited discovery on her allegations of financial conflicts of interest among the Plan, Sedgwick, NMR, and the NMR physician who reviewed her claim. Chacko, 19-cv-01837-JAM-DB (E.D. Cal. Apr. 27, 2020), ECF No. 37. As part of that discovery, Chacko sought to obtain from the Plan certain documents related to the Plan's relationship with Sedgwick and NMR and the services provided to the Plan by Sedgwick and NMR. The Plan objected that, among other things, the requested documents are not relevant to whether a financial conflict of interest existed between the Plan and Sedgwick. Chacko, 19-cv-01837-JAM-DB (E.D. Cal. July 31, 2020), ECF No. 42, at 2–4. A discovery dispute ensued, and the magistrate judge granted Chacko's motion to compel, ruling that the district court had “clearly contemplated plaintiff conducting discovery of the type at issue here.” Chacko, 19-cv-01837-JAM-DB (E.D. Cal. Aug. 11, 2020), ECF No. 44, at 2–3.

*2 The Plan then asserted that certain of the responsive documents were not in its custody or control and that Sedgwick and NMR would not agree to produce them without a subpoena. Chacko, 19-cv-01837-JAM-DB (E.D. Cal. Oct. 30, 2020), ECF No. 50, at 19. The magistrate judge again granted a motion to compel, finding that the Plan had authority to require Sedgwick to produce the documents and ordering the Plan to thus produce “any responsive documents in the possession of Sedgwick” (though denying the motion as to NMR, which the court found had no contractual obligation to the Plan regarding the discovery at issue). Chacko, 19-cv-01837-JAM-DB (E.D. Cal. Nov. 9, 2020), ECF No. 55, at 3–4.[1]

As a result, the Plan served Sedgwick with a Rule 45 subpoena duces tecum. (ECF No. 24-5.) At issue here are two categories of documents sought in the subpoena,[2] each nearly identical to a corresponding request for production the Plan has been ordered to respond to in the underlying litigation, as discussed above:

(ECF No. 24-5.) In response, Sedgwick served the Plan with objections (ECF No. 1-6) and has not produced documents responsive to these two categories of requests. The original motion followed, and the renewed motion is now before the Court.

Sedgwick maintains that the only responsive document in its possession, custody, or control that has not yet been produced is the NMR Agreement. (ECF No. 11, at 7.) During the August 5 hearing before this Court, counsel for Sedgwick confirmed that no other potentially responsive documents have been withheld, and counsel for the Plan confirmed that he had no reason to question that representation. The sole document at issue is, therefore, the NMR Agreement.

“[T]he scope of discovery under a subpoena is the same as the scope of discovery under Rule 26.” State Farm Mut. Auto. Ins. Co. v. Elite Health Ctrs., Inc., 364 F. Supp. 3d 758, 767 (E.D. Mich. 2018) (quoting Med. Ctr. at Elizabeth Place, LLC v. Premier Health Partners, 294 F.R.D. 87, 92 (S.D. Ohio 2013)). “[T]hus, ‘a subpoena to a third party under Rule 45 is subject to the same discovery limitations as those set out in Rule 26.’ ” Id. (quoting United States v. Blue Cross Blue Shield of Mich., No. 10-14155, 2012 WL 4513600, at *5 (E.D. Mich. Oct. 1, 2012)). Under Rule 26, “[p]arties 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.” Fed. R. Civ. P. 26(b)(1). “[T]he scope of discovery is extremely broad under the Federal Rules of Civil Procedure and is ... within the broad discretion of the trial court.” Clark Const. Grp., Inc. v. City of Memphis, 229 F.R.D. 131, 137 (W.D. Tenn. 2005) (citations and quotations omitted). At the same time, “the court cannot compel a party to produce what does not exist.” Dancy v. Lanxess Corp., No. 19-cv-02690-SHL-tmp, 2020 WL 5262311, at *2 (W.D. Tenn. Sept. 3, 2020) (citations and alterations omitted).

*3 Rule 45 permits the recipient of a subpoena to serve written objections on the subpoenaing party. Fed. R. Civ. P. 45(d)(2)(B). If objections are lodged, “the serving party may move the court for the district where compliance is required for an order compelling production or inspection.” Fed. R. Civ. P. 45(d)(2)(B)(i). Such “order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.” Fed. R. Civ. P. 45(d)(2)(B)(ii).

Sedgwick resists production of the NMR Agreement on relevance grounds—that portions of the Agreement are unrelated to the underlying litigation, that the Agreement “does not bear on [the NMR physician's] alleged financial bias or motivation in evaluating whether a claim for benefits is meritorious,” and that Sedgwick has already produced other, more relevant documents sufficient to uncover any potential financial conflict of interest. (Id.)

The NMR Agreement is generally relevant to the underlying dispute. Though Sedgwick correctly argues that discovery is limited in ERISA cases, the NMR Agreement falls squarely within the limited scope of discovery permitted by the district court in the underlying case. See Chacko, 19-cv-01837-JAM-DB (E.D. Cal. Apr. 27, 2020), ECF No. 37, at *7 (citing Dimry v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, No. 19-cv-05360, 2020 WL 1865192 (N.D. Cal. Apr. 14, 2020)); see also Dimry, 2020 WL 1865192, at *2 (describing how the plan at issue was required to produce “its agreements with the independent physicians”). Indeed, other courts permitting discovery on financial conflict of interest in ERISA cases have specifically ordered the production of contracts like the NMR Agreement. See, e.g., Clark v. Am. Elec. Power Sys. Long Term Disability Plan, 871 F. Supp. 2d 655, 660 (W.D. Ky. 2012) (listing the “permitted areas of inquiry,” including “contractual connections between plan administrator/payor and the reviewers utilized in plaintiff's claim”); Bird v. GTX, Inc., No. 08-cv-2852, 2009 WL 3839478, at *3 (W.D. Tenn. Nov. 13, 2009) (same). In addition, though not binding on this Court, the magistrate judge's ruling in the underlying case compelled production of documents sought in a nearly identical request for production, overruling the Plan's relevancy objection. See Chacko, 19-cv-01837-JAM-DB (E.D. Cal. Aug. 11, 2020), ECF No. 44, at 2–3; see also Chacko, 19-cv-01837-JAM-DB (E.D. Cal. July 31, 2020), ECF No. 42, at 2–4 (stating the Plan's objections). Sedgwick's argument that the NMR Agreement is irrelevant is thus unavailing.

Sedgwick also argues, however, that the NMR Agreement covers clients other than Sedgwick and claims other than those for long term disability and that those portions of the Agreement are irrelevant to the underlying case.[3] (ECF No. 11, at 7.) Sedgwick thus proposes that the NMR Agreement be redacted to excise the irrelevant portions, as depicted in the versions it submitted to the Court for in camera review.

*4 The Court has reviewed the documents and finds the redactions proposed by Sedgwick unnecessary. Sedgwick is correct that portions of the NMR Agreement are irrelevant because they govern Sedgwick's relationship with NMR in areas at least superficially unrelated to Chacko's claims. But “[v]irtually all documents contain relevant and irrelevant information, and information in a document that is irrelevant is often useful context for the relevant information.” Nieves v. Baptist Mem. Med. Group, Inc., No. 18-2748, 2020 WL 3441900, at *2 (W.D. Tenn. June 23, 2020) (citing Salser v. Dyncorp Int'l, Inc., No. 12-10960, 2014 WL 7139886, at *2 (E.D. Mich. Dec. 12, 2014)). Thus, “[t]he Federal Rules of Civil Procedure do not recognize irrelevance as a privilege or an objection that warrants redaction ....” Id. (quoting Medtronic Sofamor Danek, Inc. v. Michelson, No. 01-2372, 2002 WL 33003691, at *5 (W.D. Tenn. Jan. 30, 2002)). Though “courts have occasionally allowed redactions based on relevance when a protective order preventing the improper dissemination of sensitive information is not sufficient to protect the responding party's interests,” id. (citing Osborn v. Griffin, No. 11-89, 2013 WL 12176851, at *7 (E.D. Ky. July 17, 2013)), Sedgwick has made no such argument regarding the protective order in the underlying case. Sedgwick is therefore ordered to produce the unredacted NMR Agreement.

For the foregoing reasons, the Plan's motion to compel is GRANTED. Sedgwick is ORDERED to produce the unredacted NMR Agreement to the Plan within five days of entry of this Order.

IT IS SO ORDERED this 17th day of August, 2021.

Following yet another motion to compel, the magistrate judge reiterated that, despite Sedgwick's refusal to produce the documents to the Plan, the Plan “must comply” with the prior order and was required to “obtain the responsive documents it is contractually entitled to and produce them to plaintiff.” Chacko, 19-cv-01837-JAM-DB (E.D. Cal. Mar. 31, 2020), ECF No. 71, at 2–3.

The subpoena sought a third category of documents as well, which Sedgwick has produced and is therefore not a subject of the motion to compel. (ECF No. 24-1, at 5.)

In its objections to the subpoena, Sedgwick also argued that the first category of documents “seeks privileged, confidential, commercial, or proprietary business information, the disclosure of which would violate trade secrets of Sedgwick and NMR and/or place Sedgwick and NMR at a competitive disadvantage and/or cause Sedgwick and NMR to lose a competitive advantage and/or ... seeks the disclosure of confidential financial information of non-parties to the litigation.” (ECF No. 1-6, at 2.) Sedgwick has not raised this argument in its opposition to the Plan's motion to compel and thus has abandoned the objection. See Rogers v. Webstaurant Store, Inc., No. 4:18-cv-00074, 2018 WL 6728575, at *2 (W.D. Ky. Dec. 21, 2018); O'Malley v. NaphCare Inc., 311 F.R.D. 461, 465 n.4 (S.D. Ohio 2015). Even if the objection were not waived, it is not well founded. Neither party contests that the NMR Agreement would be produced pursuant to the protective order in place in the underlying case. Sedgwick has not argued or shown that the protective order is insufficient to protect its interests in maintaining the confidentiality of the Agreement. See, e.g., Raymond James & Assocs., Inc. v. 50 N. Front St., Tenn., LLC, No. 18-cv-2104, 2018 WL 6521493, at *5 (W.D. Tenn. Oct. 3, 2018) (finding the protective order sufficient “to alleviate any concerns related to disclosure of confidential information”).