*1 Before the Court is a motion to compel discovery (DN 30) filed by Plaintiff Emmanuel J. Quarles (“Quarles”). Defendant Hartford Life & Accident Insurance Company (“Hartford”) has filed a response, and Quarles has filed a reply (DN 34, 36). The motion is now ripe for review. For the following reasons, Quarles's motion to compel (DN 30) is denied.

The motion to compel discovery relates to the scope of discovery in actions under the Employee Retirement Income Security Act (“ERISA”). Quarles asserts a breach of contract claim pursuant to 29 U.S.C. § 1132(a)(1)(B) in relation to Hartford's denial of his claim for long-term disability benefits. Quarles alleges that Hartford initially approved his claim for long-term disability benefits. He alleges that he received such benefits from November 2012 to August 2014, at which time Hartford abruptly terminated his benefits despite there having been no improvement in his disabling condition.

In addition to his breach of contract claim under 29 U.S.C. § 1132(a)(1)(B), Quarles asserted a claim of disgorgement under 29 U.S.C. § 1132(a)(3). Hartford filed a motion for partial judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure in relation to the Section 1132(a)(3) claim. (DN 26) United States District Judge David J. Hale recently granted Hartford's motion for partial judgment on the pleadings (DN 37), finding that Quarles failed to allege an injury separate and distinct from the denial of his benefits or any facts that would support such injury. Accordingly, Quarles's sole surviving claim is the Section 1132(a)(1)(B) claim. Based on the foregoing, the instant memorandum opinion addresses the motion to compel solely as it relates to Quarles's Section 1132(a)(1)(B) breach of contract claim.

Pursuant to the scheduling order currently in effect (DN 16), discovery was to be completed no later than January 31, 2016. On October 14, 2015, Quarles served on Hartford written discovery requests. (See DN 30-1 (requests for production); DN 30-2 (interrogatories).) On the same day, Quarles's attorney requested, by email, potential dates for three depositions: (1) Hartford's corporate representative, pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure; (2) a senior claim analyst who signed the letter notifying Quarles of the termination of benefits; and (3) an appeal specialist who signed the letter notifying Quarles of the denial of his appeal. (See DN 30-3.) Hartford responded to Quarles's written discovery requests on November 13, 2015. (DN 30-4 (responses to requests for production); DN 30-5 (responses to interrogatories).) Thereafter, counsel for the parties engaged in email correspondence regarding their positions as to the scope of discovery in this case. (DN 30-6.) Those discussions led to Quarles filing the motion to compel that is now before the Court.

Quarles alleges that Hartford initially determined that he was entitled to long-term disability benefits and that it provided him with such benefits from November 2012 to August 2014, at which time it abruptly terminated his benefits. He argues that his discovery requests were “narrowly tailored within the recognized discovery parameters of ERISA,” and that he “took the extraordinary effort of citing applicable legal authority with each request[.]” (DN 30 at 2.) Quarles contends that Hartford's written discovery responses are nothing but a “litany of objections” that “largely ignore[ ] the relevant case law and fail[ ] to provide substantive responses or documents,” despite the fact that, according to Quarles, Hartford recognized the scope and applicability of a recent decision from our sister court in Davis v. Hartford Life & Accident Ins. Co., 2015 U.S. Dist. LEXIS 158313 (W.D. Ky. Nov. 24, 2015). (Id.) He further argues that Hartford ignored his valid requests to schedule depositions. Additionally, Quarles contends that Hartford “demanded” that he accept its proposed confidentiality agreement, ignoring both Quarles's “request that it contact him in advance of responding if it believed confidentiality was a concern” and the fact that the Davis court did “not requir[e] the discovery to be produced under a protective order.” (DN 30 at 3.) Quarles contends that in addition to Davis, other recent decisions from this district also mandate that Hartford respond in full to his written discovery requests.

*2 In the motion to compel, Quarles addresses each disputed area of discovery. These areas include the following: (1) requests concerning affirmative defenses; (2) requests concerning compensation and bonuses/incentives of Hartford employees; (3) requests concerning Hartford's reasons for terminating Quarles's benefits and denying his appeal; (4) requests concerning Hartford's organizational structure; and (5) Quarles's right to take the three depositions that he seeks in this action. The Court addresses each of these disputed areas of inquiry, as well as Quarles's deposition requests, in the Discussion section below.

The motion to compel includes a certification, pursuant to Local Rule 37.1, that Quarles made a good-faith effort to resolve this discovery dispute extra-judicially. Quarles asserts that despite his efforts, Hartford refused to abide by the Davis decision unless Quarles agreed to Hartford's proposed confidentiality agreement and that Hartford continued to raise new objections to the discovery requests. Quarles argues that he is entitled to sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure due to Hartford's failure to comply with its Rule 33 and 34 discovery obligations. Specifically, Quarles asks the Court to require Hartford to take the following actions: (1) immediately provide substantive answers to his written discovery; (2) cooperate in scheduling depositions; (3) pay Quarles's attorneys' fees and costs associated with the motion to compel; and (4) instruct Hartford that failure to comply with the Court's orders regarding the motion to compel may result in a default judgment. (DN 30 at 10.)

In response, Hartford argues that it has acted in good faith. It contends that Quarles's attempt to “shoehorn” this case into the mold of Davis is inappropriate because the two cases differ in two important respects. (DN 34 at 1-2.) First, Hartford contends, whereas Davis involved an arbitrary and capricious standard of review, in this case, Hartford has stipulated to a de novo review. As a result, Hartford argues, the Court need not evaluate whether a structural conflict of interest influenced the claims determination, and thus, the Court need not permit the “conflict discovery” sanctioned by Davis. (Id. at 2.)

Second, Hartford argues that its basis for denying Quarles's claim shows that there is no need for discovery into the areas of conflict of interest or potential bias. Hartford argues that it relied entirely on its own policies, specifically, Quarles's failure to satisfy his “proof of loss” obligations pursuant to the terms of his long-term disability policy, in denying Quarles's claim and appeal. (Id.) Hartford contends that it obtained video surveillance during its claims investigation showing that Quarles was working in an alternative occupation, and Quarles failed to satisfy his “proof of loss” obligations by neglecting to respond to Hartford's repeated requests for information following its review of the video footage. (Id.) For that reason, according to Hartford, there was no “substantive denial” of Quarles's claim, such as a denial based on a determination that Quarles was medically or vocationally unable to return to his prior occupation. (Id.) Accordingly, Hartford argues that “there is no need for in-depth discovery into either conflict or claims processing issues.” (Id.)

Hartford addresses each disputed area of written discovery. The Court discusses those areas below. Additionally, Hartford disputes Quarles's account of the discussions between counsel regarding the discovery dispute. Hartford argues that Quarles fails to acknowledge the mid-December 2015 emails between counsel in which Hartford's arguments regarding discovery were based on a de novo standard of review, as opposed to an arbitrary and capricious standard of review. (DN 34 at 3.) Hartford contends that Quarles's counsel refused to engage in a good-faith discussion regarding the impact, if any, of de novo review. (See id. (discussing emails dated December 14 and 16, 2016).)

*3 With respect to Quarles's request for sanctions, Hartford argues that no sanctions are warranted for several reasons. It again argues that the de novo standard of review means that Quarles is not entitled to the discovery he seeks, but that even if the arbitrary and capricious standard were to be applied, its arguments regarding the scope of discovery are still substantially justified because the law on discovery in ERISA actions remains unsettled in the Sixth Circuit. (Id. at 14.)

The thrust of Quarles's reply (DN 36) is that Hartford's arguments are unpersuasive with respect to both his right to discovery on the areas of inquiry in question and his entitlement to sanctions. Citing recent case law from this district, Quarles contends that whether the de novo or arbitrary and capricious standard of review is applied has no bearing on whether he is entitled to the discovery he seeks. (DN 36 at 1-2.) With respect to the discovery responses that Hartford has now agreed to supplement, Quarles argues that it is too little, too late because Hartford supplemented its responses only after Quarles filed the motion to compel. (Id. at 3 (“This sort of behavior cannot be characterized as anything other than a willful violation of the Rules – forcing Mr. Quarles and the Court to waste limited resources to force Hartford to comply with its discovery obligations.”).) Quarles insists that sanctions are appropriate in this case, particularly in order to deter future misconduct by Hartford. (See id. at 6 (“[ ... ] Hartford continues to flaunt[1] its discovery obligations and only provides proper responses after Mr. Quarles went through the time and expense of filing his motion to compel.”).)

“Generally, parties in a civil action may obtain discovery regarding any unprivileged matter that is relevant to the claim or defense of any party.” Likas v. Life Ins. Co. of N. Am., 222 Fed. Appx. 481, 485 (6th Cir. 2007) (citing Fed. R. Civ. P. 26(b)(1)). In ERISA actions, however, discovery is “substantially limited.” Davis, 2015 U.S. Dist. LEXIS 158313 at *2 (citing Likas, 222 Fed. Appx. at 485). “Discovery under ERISA is a largely unsettled area of law as federal courts continue to vary the scope of discovery permitted in ERISA actions even after a Supreme Court case on the matter, Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008).” Id. (citing Mullins v. Prudential Ins. Co. of Am., 267 F.R.D. 504, 510 (W.D. Ky. 2010)) (internal citations omitted).

Typically, in ERISA actions, discovery is not permitted outside of the administrative record. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 618 (6th Cir. 1998) (Gilman, J., concurring). “This rule serves ‘a primary goal of ERISA [which is] to provide a method for workers and beneficiaries to resolve disputes over benefits inexpensively and expeditiously,’ Perry v. Simplicity Eng'g. Div. of Lukens Gen. Indus., 900 F.2d 963, 967 (6th Cir. 1990), ‘and any routine consideration of evidence outside that presented to plan administrators would undermine Congress's intent.’ ” Davis, 2015 U.S. Dist. LEXIS 158313 at *3 (quoting Thornton v. W. & S. Life Ins. Co. Flexible Benefits Plan, 2010 U.S. Dist. LEXIS 7221, *1 (W.D. Ky. Jan. 28, 2010)). “An exception is recognized, however, when evidence outside the record is ‘offered in support of a procedural challenge to the administrator's decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part.’ ” Johnson v. Connecticut Gen. Life Ins. Co., 324 Fed. Appx. 459, 466 (6th Cir. 2009) (quoting Wilkins, 150 F.3d at 619 (Gilman, J., concurring)).

*4 In the aftermath of the Supreme Court's decision in Glenn, district courts within the Sixth Circuit have worked to define the scope of discovery when an ERISA plaintiff alleges a conflict of interest or bias. This district is no different, as is apparent from recent cases upon which Quarles relies. See, e.g., Blackwell v. Liberty Life Assur. Co., 2016 U.S. Dist. LEXIS 73317 (W.D. Ky. May 20, 2016); Myers v. Anthem Life Ins. Co. 2016 U.S. Dist. LEXIS 37411 (W.D. Ky. March 21, 2016); Owens v. Liberty Life Assur. Co. of Boston, 2016 U.S. Dist. LEXIS 51350 (W.D. Ky. Jan. 15, 2016); Davis, 2015 U.S. Dist. LEXIS 158313; Gluc v. Prudential Life Ins. Co. of Am., 309 F.R.D. 406, 408 (W.D. Ky. 2015). Quarles argues that this case is simply another in that line of recent cases.[2] In particular, he relies heavily upon Davis to argue that he is entitled to all of the discovery that he seeks in this case.

Glenn and its progeny in the Sixth Circuit do not permit ERISA plaintiffs to embark on a fishing expedition. In the cases from this district that are cited above, the Court made very clear that the basis for permitting discovery beyond the administrative record was the ERISA plaintiff's allegation of a conflict of interest or bias. See, e.g., Davis, 2015 U.S. Dist. LEXIS 158313 at *9 (“This Court cautions that discovery is to be limited to the conflict of interest and allegation of bias.”) (citing Brainard v. Liberty Life Assur. Co. of Boston, 2014 U.S. Dist. LEXIS 178492, *4 (E.D. Ky. Dec. 30, 2014)). For that reason, “appropriate areas of inquiry include whether ‘(i) there is a history of biased claim denials; (ii) the employer has made measures to reduce bias and promote accuracy; and (iii) company policies reward or encourage denials.’ ” Id. (quoting Kasko v. Aetna Life Ins. Co., 33 F. Supp. 3d 782, 785 (E.D. Ky. 2014) (citing Wilkins, 150 F.3d at 618)). In Gluc, our sister court conducted an exhaustive review of cases within the Sixth Circuit and compiled lists of “permitted areas of inquiry – topics on which discovery related to an inherent conflict of interest may be had by an ERISA plaintiff,” Busch v. Hartford Life & Accident Ins. Co., 2010 U.S. Dist. LEXIS 101881, *1 (E.D. Ky. Sept. 27, 2010), as well as categories of information that are not within the areas of permitted discovery. See Gluc, 309 F.R.D. at 413-14. The Gluc court emphasized that the purpose of discovery was to uncover the influence of any conflict of interest or bias. See id. at 413 (“[D]iscovery must be sufficiently broad to permit the claimant to show how the conflict affected the benefits determination, but must be focused on issues of bias, conflict of interest, and procedural due process.”).

Hartford argues that Glenn and its progeny in this district do not provide the applicable standard in this case for the two reasons set forth above: (1) because Hartford has stipulated to de novo review, there is no need for discovery related to whether a structural conflict of interest influenced the claims determination in this case; and (2) because Hartford denied Quarles's claim on procedural grounds, i.e., his failure to satisfy his contractual obligations regarding proof of loss, there is no need to look into a conflict of interest or bias such that they might have influenced a substantive denial of Quarles's benefits.

*5 Hartford has stipulated to a de novo standard of review. (DN 33.) It contends that as a result of this stipulation, Quarles is not entitled to the discovery he seeks. It appears to the Court that while other district courts in the Sixth Circuit and in other circuits have addressed this issue, neither the Sixth Circuit nor this district has addressed it. In ERISA cases, a denial of benefits “is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

The Sixth Circuit has described the court's role in applying the de novo standard of review as “determin[ing] whether [the insurer] ‘made a correct decision.’ ” McKenna v. Aetna Life Ins. Co., 620 F. Appx. 445, 450 (6th Cir. 2015) (quoting Perry, 900 F.2d at 966); see also Hoover v. Provident Life & Accident Ins. Co., 290 F.3d 801, 809 (6th Cir. 2002) (“When applying a de novo standard in the ERISA context, the role of the court ... is to determine whether the administrator ... made a correct decision.” “In other words, [the court] consider[s] whether [the insurer] properly interpreted the Plan and whether [the claimant] was entitled to benefits under the Plan, and in doing so, [the court] do[es] not provide deference or a presumption of correctness to [the insurer]'s decision. Id. (citation omitted). The court's “review is limited to only the administrative record as it existed when the final decision was rendered.” Id. (citing Judge v. Metro Life Ins. Co., 710 F.3d 651, 658 (6th Cir. 2013)); see also Hoover, 290 F.3d at 809 (“The review is limited to the record before the administrator and the court must determine whether the administrator properly interpreted the plan and whether the insured was entitled to benefits under the plan.”) (quotation and citation omitted).[3] For example, in McKenna, the Sixth Circuit reviewed the administrative record, that is, “only the information submitted before [the insurer]'s ... final decision on appeal,” and concluded that the evidence in the record did not support the insurer's denial of long-term disability benefits. Id. at 451-52. Specifically, the court concluded that one physician's office note documenting an improved condition did not overcome the other medical evidence and treating physician's opinion in the file that indicated that the claimant remained disabled. Id.

In order for the arbitrary and capricious standard of review to apply, the Sixth Circuit requires that “the plan's grant of discretionary authority be ‘express.’ ” Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir. 1996) (quoting Perry, 900 F.2d at 965). “Furthermore, even if a plan expressly vests discretion in an administrator, courts will only apply the arbitrary and capricious standard if it is the administrator itself who actually made the benefits revocation decision.” Hawks v. Life Ins. Co. of North Am., 2015 U.S. Dist. LEXIS 171135, *3 (W.D. Ky. Dec. 23, 2015) (citing Sanford v. Harvard Indus., Inc., 262 F.3d 590, 597 (6th Cir. 2001) (internal citation omitted)). “The plan administrator bears the burden of proving that the arbitrary and capricious standard applies.” Shelby Cnty. Health Care Corp. v. Majestic Star Casino, LLC, 2008 U.S. Dist. LEXIS 23314, *3 (W.D. Tenn. Mar. 20, 2008) (citation omitted); Weidauer v. Broadspire Servs., 2008 U.S. Dist. LEXIS 110537, *21 (S.D. Ohio Oct. 27, 2008) (“Because a denial of ERISA benefits is ordinarily reviewed de novo, the party claiming entitlement to review under an arbitrary and capricious standard has the burden of proving that the arbitrary and capricious standard applies.”) (citations omitted).

*6 In Weidauer v. Broadspice Services, the Southern District of Ohio provided a succinct description of the court's role in reviewing an insurer's claim determination:

Weidauer, 2008 U.S. Dist. LEXIS 110537 at *23-24.

It is apparent to the Court that by stipulating to a de novo standard of review, Hartford intended to avoid the discovery permitted in the recent cases from our district that are discussed above; certainly no other motive has been offered. As is set forth above, Hartford's argument is that because it has stipulated to a de novo review of its denial of Quarles's claim for long-term disability benefits, the Court's review will be confined to the administrative record as it existed at the time of its denial of Quarles's appeal. Therefore, according to Hartford, a procedural problem such as conflict of interest or bias on the part of the insurer, which is the underlying basis for permitting discovery for ERISA plaintiffs, is not present. Accordingly, Hartford argues, the Court should not compel it to engage in discovery as sought by Quarles.

Hartford relies upon Weidauer in support of its argument. In Weidauer, the Southern District of Ohio noted that the parties “argue[d] much about whether conflicts of interest exist,” but reasoned that “since a plan administrator's decision is accorded no deference or presumption of correctness when conducting a de novo review, whether there is a conflict of interest in this case is irrelevant.” Id. at *27-28; id. at *28 (citing Glenn and stating that “[a] possible conflict becomes an issue [only] when the plan administrator is given a clear grant of discretion and the court is determining whether there is an abuse of discretion.”). While the Weidauer court's reasoning is notable, it is not, in itself, entirely persuasive in this case because the court was not discussing the standard of review in the context of a discovery dispute.

*7 In McCollum v. Life Insurance Company of North America, 2010 U.S. Dist. LEXIS 127751 (E.D. Mich. Dec. 10, 2010), the Eastern District of Michigan addressed an ERISA claimant's request for discovery. The plaintiff alleged that the insurer “had a structural conflict of interest because it served as both plan administrator and payor” and requested discovery pertaining to the alleged conflict of interest as well as in relation to the plaintiff's claim for civil penalties based on the defendant's alleged plan to provide a summary plan description upon request. Id. at *2-3. The court stated that while “limited discovery may be appropriate” when a claimant challenges a denial of benefits and the procedure used by the plan administrator, “[e]ven then, discovery is limited to those matters relevant to ‘a colorable procedural challenge under Wilkins.’ ” Id. at *4 (quoting Johnson, 324 Fed. Appx. at 467; citing Wilkins, 150 F.3d at 618). The court went on to state that this “limitation ‘is a result of the determination that matters outside the administrative record are ordinarily not relevant to the court's review of an ERISA benefit decision.’ ” Id. (quoting Johnson, 324 Fed. Appx. at 467) (emphasis added in McCollum). Particularly relevant for our purposes is the following discussion:

Id. at *5 (quoting Price v. Hartford Life & Accident Ins. Co., 2010 U.S. Dist. LEXIS 108691, *6 (E.D. Mich. Oct. 12, 2010)).

In McCollum, the insurer claimed an inability to obtain the summary plan description sought by the claimant, and the claimant was otherwise unable to point to a document that would show discretionary authority. Id. at *6. The court determined that a de novo standard of review should be applied because there was no evidence in the record of a grant of discretionary authority that would compel the court to apply an arbitrary and capricious standard of review. McCollum, 2010 U.S. Dist. LEXIS 127751 at *5-6. Based on the discussion excerpted above, the court concluded that the claimant was not entitled to discovery based on a structural conflict of interest. However, because the claimant sought the imposition of ERISA civil penalties for failure or refusal to provide required information, the court did permit “limited discovery to determine the existence of plan documents and the related ability of [the insurer] to provide such plan documents to Plaintiff, all of which [the court deemed] relevant strictly to [the claim for civil liability].” Id. at *8.[4]

The Southern District of Ohio recently addressed this issue in Sim v. Reliance Standard Life Insurance Company, 2016 U.S. Dist. LEXIS 8842 (S.D. Ohio. Jan. 26, 2016). In Sim, the ERISA claimant sought to conduct discovery, citing a structural conflict of interest. The court stated that it would first determine the applicable standard of review, which it stated was “appropriate ... because whether discovery is permitted to explore defendants' alleged bias is irrelevant if the standard of review is de novo.” Id. at *1 n.1 (citing Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 418 (3d Cir. 2011) (“Because we have concluded that a de novo standard of review applies, we need not reach Plaintiff's argument regarding [defendant's] conflict of interest in being both the payor and administrator of benefits. That issue is only pertinent to an abuse-of-discretion standard of review.”); Guy v. Sun Life Assur. Co. of Can., 2010 U.S. Dist. LEXIS 135615, *1 (E.D. Mich. Dec. 22, 2010) (“Here, there is no dispute that Defendant operated under a structural conflict of interest. However, that conflict of interest only becomes relevant as a factor to weigh in determining whether Defendant abused its discretion in denying Plaintiff's claim. If the standard of review is de novo, Defendant's decision-making, and its conflict of interest, becomes irrelevant.”)). The Sim court determined that the arbitrary and capricious standard of review should be applied based on Sixth Circuit precedent related to the particular policy language at issue. Id. at *3-4. The court went on to address the plaintiff's right to discovery in a number of specific areas in light of the alleged structural conflict of interest. Id. at *10-22.

*8 Courts outside of the Sixth Circuit have reached the same conclusion regarding discovery when an insurer's determination is being reviewed de novo. The Ninth Circuit, for example, routinely applies the rule set forth in cases like McCollum and Sims. This is so even where, as is the case here, the insurer agrees to a de novo review specifically to avoid discovery. See, e.g., Rowell v. Aviza Tech. Health & Welfare Plan, 2012 U.S. Dist. LEXIS 16957 (N.D. Cal. Feb. 10, 2012) (“Hartford's stated purpose in agreeing to a change in the standard of review is to obviate the need for what it claims will be expensive and burdensome conflict of interest discovery.”). In Rowell, the court considered the purposes for which it had previously permitted discovery and concluded that some of those purposes were no longer material in the context of a de novo review. Id. at *12-13 (“[T]his form of percentage data is not relevant .... Moreover, even a showing of relevance under Fed. R. Civ. P. 26 would be insufficient in the context of de novo review because the circumstances of the case do not clearly establish that the additional discovery is necessary.”); see also Steiner v. Hartford Life & Accident Ins., 2004 U.S. Dist. LEXIS 20022, *4 (N.D. Cal. June 4, 2004) (“Hartford has already stipulated that de novo review is appropriate in this case, so extra-record discovery is not necessary.”) (citing Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1162 n.34 (9th Cir. 2001) (“Because we hold that de novo review applies, we need not address [plaintiff's] contention that she should have been allowed further discovery to show a conflict of interest, since the point of showing a conflict of interest it to obtain a more demanding standard of review than abuse of discretion.”)); but see Klund v. High Tech. Solutions, Inc., 2006 U.S. Dist. LEXIS 12163, *14-15 (S.D. Cal. Feb. 27, 2006) (holding that defendant's unilateral stipulation to a de novo standard of review contravened previous court orders and demonstrated their “cho[ice] to reinterpret th[e] court's order to suit their needs,” and as such, discovery previously permitted would still be required).

Finally, in Liyan He v. Cigna Life Ins. Co., 304 F.R.D. 186 (S.D.N.Y. 2015), the plaintiff sought to depose three employees of the insurer, as well as to conduct a Rule 30(b)(6) deposition and to compel production of certain documents. The Southern District of New York found that the cases relied upon by the plaintiff in support of discovery were inapposite because they all involved an arbitrary and capricious standard of review, whereas the court would apply a de novo standard of review. The court stated that “in cases potentially involving arbitrary and capricious review, the district court may be called upon to address the questions of conflict of interest and procedural regularities in making its merits determination.” Id. at *3. It further stated that “[i]n de novo review cases, by contrast, any conflict of interest and procedural irregularities are not per se relevant to the merits determination because the court conducts its own review of the evidence without deferring to the administrator's prior determinations.” Id. at *4. The Liyan He court went on to apply a “good cause” standard utilized in the Second Circuit to determine whether limited discovery was appropriate in spite of the application of the de novo standard of review. It ultimately determined that the administrative record provided nearly all necessary evidence related to the plaintiff's allegations of “procedural irregularities and other nonstructural conflicts that might have affected the completeness of the record,” and permitted the plaintiff to conduct a single deposition of an insurer employee. Id. at *7-8.

Based on the foregoing, the Court concludes that the rationale for discovery regarding structural conflicts of interest has been obviated in this case. Because the Court will apply a de novo standard of review, there is no need for discovery regarding any factors internal to Hartford that may have influenced the persons who made the decision to terminate Quarles's long-term disability benefits or to deny his appeal. When the time comes for a determination on the merits in this case, the Court will assume the perspective of an independent decision-maker with the administrative record before it. The Court is decidedly not influenced by any structural conflict of interest associated with Hartford.

Moreover, as a practical matter, Hartford's second major point regarding the actual basis for the decision to terminate Quarles's benefits lends itself to a review solely based on the administrative record. Hartford's stated basis for terminating Quarles's benefits and denying his appeal was his failure to satisfy his contractual obligations regarding “proof of loss.” Such a determination was -- according to Hartford -- made based on the terms of the applicable plan and Quarles's lack of response. Accordingly, the Court will likely make its determination solely based on the administrative record. With that said, the Court has not foreclosed the opportunity for any discovery in this case (and, as is discussed below, Hartford is clearly willing to engage in some discovery). In the event that the Court determines at a later date that it requires additional documentation or other form of information in order to reach a conclusion, it can require more discovery on its own motion. The Court's task now is to determine whether any limited discovery is appropriate in light of its conclusion that discovery related to a structural conflict of interest is not necessary and will not be permitted in this case.

*9 The first area of inquiry that is in dispute is whether Hartford is required to provide the material facts supporting its affirmative defenses, which is the subject of interrogatory no. 2 and request for production no. 1. Quarles argues that Hartford is required to state specifically the facts that support its affirmative defenses, and that citation to the administrative record as a whole is insufficient. (DN 30 at 5.) Hartford states in response that it will supplement the two discovery requests at issue “in keeping with the Davis Order,” and those requests no longer require the Court's attention. (DN 34 at 7.) Hartford further states that if Quarles “pushes this topic further despite Hartford's supplementation,” such further inquiry should be precluded because it would go only to the merits of the action, and merits discovery is strictly precluded in ERISA cases. (Id. (citing Caldwell v. Life Ins. Co. of N. Am., 165 F.R.D. 633, 637 (D. Kan. 1996)).) It goes on to argue that because it did not file a Rule 12(b) motion in this case, “any true affirmative defenses have been waived.” (Id.) It contends that Quarles merely seeks to force it to divulge work product information in an effort to undermine any dispositive motion that Hartford may file in this case. (Id.)

In his reply, Quarles concedes that “Hartford has supplemented its responses to [his] written requests concerning Hartford's affirmative defenses,” and states that as such, “it appears Hartford has finally complied with its discovery obligations.” (DN 36 at 3.) Quarles then reemphasizes his argument that sanctions are warranted in this case. (Id. (“[ ] Hartford still refused to provide this discovery until after Mr. Quarles filed his motion to compel. Hartford delayed providing this information for nearly a month after Mr. Quarles went through the time and expense of filing his motion to compel -- and three months after the responses were due.”).)

Based on the foregoing, the Court finds that the sufficiency of Hartford's responses interrogatory no. 2 and request for production no. 1, which relate to the factual basis for its affirmative defenses, is no longer at issue. The Court addresses Quarles's request for sanctions below. For the foregoing reasons, the motion to compel is denied as to Quarles's written discovery requests related to affirmative defenses, interrogatory no. 2 and request for production no. 1.

The second area of dispute raised in the motion to compel relates to interrogatory no. 7, which seeks information on “compensation practices for disability claim unit personnel,” and request for production no. 13, which seeks materials related to “[s]pecific compensation, including calculations and supporting documents, for each person involved with Plaintiff's claim.” (DN 30-2 at 9; DN 30-1 at 7 (emphasis added).) Hartford responded to interrogatory no. 7 by objecting on several grounds but stated nonetheless that its “decision-makers are paid fixed salaries and may receive performance bonuses that are wholly unrelated to the number of claims paid or claims denied. Claims decision-makers are evaluated on the quality and accuracy of their claims decision in accordance with the applicable plan/policy documents.” (DN 30-5 at 9.) In response to request for production no. 13, Hartford again objected on several grounds, including that information about compensation paid to specific employees is not discoverable. (DN 30-4 at 9-10.) It incorporated by reference its response to interrogatory no. 7. (Id. at 10.)

In the motion to compel, relying on Davis, Quarles argues that he is entitled to know the bonus/incentive structure for Hartford's claims and appeals personnel, specifically those who were involved with his claim and appeal. (DN 30 at 6.) He argues that Hartford's response is insufficient, and that he is entitled to information regarding “how [Hartford's] compensation practices actually work, including providing responsive documents.” (Id.) In response, Hartford argues that these discovery requests are outside the scope of permissible discovery in this case because their aim is to uncover information related to a structural conflict of interest. (DN 34 at 10.) It further argues that even if an arbitrary and capricious standard were applied, the discovery requests go beyond what is permissible because Davis does not require the insurer-defendant to provide information about compensation paid to individual employees. (Id.) Hartford also argues that it already provided a substantive response (quoted above) to these discovery requests, verified by an appeals specialist from Hartford. (Id.) In reply, Quarles argues that he seeks the bonus/incentive structure for claims and appeals personnel, not compensation information for particular individuals. (DN 36 at 4.) This is inaccurate based on the discovery requests quoted above. He further argues that whether the discovery responses were verified is immaterial if the information provided in Hartford's responses is insufficient.

*10 Quarles is correct that the Davis court ruled in favor of the ERISA plaintiff with respect to one identical or nearly identical area of inquiry. The court concluded that the plaintiff was entitled to production of “information relating to any incentive, bonus, or reward programs or systems for its disability claims personnel.” Davis, 2015 U.S. Dist. LEXIS 158313 at *18. The court further concluded that the plaintiff was not entitled to production of “information about compensation paid to specific employees ... as employee pay records are not discoverable.” Id. In reaching this conclusion, the Davis court looked to Gluc, which collected and summarized the areas of discovery that courts within the Sixth Circuit have permitted. See id. (“Just as courts have a list of areas of inquiry that are discoverable, courts also have a list of areas of inquiry that are not discoverable in ERISA actions.”) (citing Gluc, 309 F.R.D. 406; Busch, 2010 U.S. Dist. LEXIS 101881 at *4).

An examination of Gluc reveals that the requirement of production of compensation and bonus structures is rooted in ERISA plaintiffs' allegations of structural conflict of interest or bias. The Gluc court framed its discussion of permissible discovery in light of the allegation of conflict of interest. See Gluc, 309 F.R.D. at 413 (“As we explained, discovery must be sufficiently broad to permit the claimant to show how the conflict affected the benefits determination, but must be focused on issues of bias, conflict of interest and procedural due process questions.”) (citing Mullins, 267 F.R.D. at 512-13); see id. (including in list of permitted areas “ ‘incentive, bonus or reward programs ... for any employees involved in any meaningful way in reviewing disability claims’ ”) (quoting Myers v. Prudential Ins. Co. of Am., 581 F. Supp. 2d 904, 914 (E.D. Tenn. Sept. 22, 2008); see Myers, 581 F. Supp. 2d at 914 (“I am inclined to find that plaintiff is entitled to know generally if the defendant had at any time relevant to this case, any type of incentive, bonus, or reward program or system, formal or informal, for any employee(s) involved in any meaningful way in reviewing disability claims. Such information should not be difficult to answer, and also gives the plaintiff important information about any bias reviewing employees may or may not have had.”).

The rationale for permitting discovery in the area of employee compensation and bonus structure is that such discovery may uncover evidence of the impact of structural conflict of interest or bias. As is discussed at length above, that concern disappears, or at the very least is significantly diluted, where the court is applying a de novo standard of review. Hartford's decision to terminate Quarles's benefits was based on his alleged failure to comply with the “proof of loss” provisions of his long-term disability contract, and not, for example, on the medical conclusions of a physician who depends on compensation by Hartford. Moreover, Quarles is not entitled to specific compensation information for any individual employees. Finally, the Court finds that Hartford provided good-faith written responses to the discovery requests at issue.

For the foregoing reasons, the motion to compel is denied with respect to the written discovery requests related to compensation and bonus structure, interrogatory no. 7 and request for production no. 13.

The third area of inquiry that is in dispute relates to Hartford's purported reasons for terminating Quarles's long-term disability benefits and denying his appeal. (DN 30-2 at 12-13 (Interrogatory Nos. 10-11).) Subject to a number of objections, Hartford directed Quarles to the administrative record and to its letters notifying him of the decision to terminate his benefits and the denial of his appeal. (DN 30-5 at 11.) Quarles argues that Hartford failed to comply with its discovery obligations; specifically, he contends that Hartford improperly pointed to the entire administrative record and that the page-specific citations to the record that Hartford makes leave Quarles “to guess what other documents could potentially contain reasons for Hartford's denial.” (DN 30 at 7.) In response, Hartford states that it will supplement its responses to the two interrogatories at issue. (DN 34 at 7.) Hartford further states, however, that it believes it has complied with its obligations as set forth in Davis by pointing to specific pages in the administrative record that it contends support its decision to deny the plaintiff's claim. (Id. at 8 (citing Davis, U.S. Dist. LEXIS 158313 at *25).) In reply, Quarles appears to concede that -- after supplementing its responses -- Hartford complied with its obligations as to this area of inquiry. (DN 46 at 3 (“Specifically Hartford has supplemented its responses to Mr. Quarles' written requests concerning Hartford's ... reasons for terminating his claim and denying his appeal. Based on Hartford's supplemented answers, it appears Hartford has finally complied with its discovery obligations.”).)

*11 Based on the foregoing, the Court finds that the sufficiency of Hartford's responses interrogatory nos. 10 and 11, which relate to the reasons for its termination of Quarles's benefits and denial of his appeal, is no longer at issue. For the foregoing reasons, the motion to compel is denied as to Quarles's written discovery requests related to Hartford's reasons for terminating Quarles's benefits and denying his appeal, interrogatory nos. 10 and 11.

The final issue in dispute relates to request for production nos. 11 and 12, in which Quarles seeks information related to the organizational structure of Hartford's disability claims and appeals units. (DN 30-1 at 6.) In response to these requests, Hartford made several objections, including that the requests are “neither relevant to nor narrowly tailored to a procedural challenge (i.e., due process or bias)[.]” (DN 30-4 at 9.) It refused to produce any responsive documents and further stated that if ordered to produce such documents, “they must be produced under a protective order.” (Id.) Quarles contends in his motion to compel that he is entitled to production of the requested documents and that courts such as those in Davis and Gluc ruled in favor of his position. (DN 30 at 7.) In response, Hartford argues that production of “organizational charts” showing the information that Quarles seeks is unnecessary because the related discovery requests aim only to assess conflict of interest or bias. (DN 34 at 11.) Nonetheless, Hartford states that it “has agreed to supplement its responses and to produce the requested disability unit organizational charts,” but that such “charts contain classic confidential and proprietary information and thus will need to be produced subject to a confidentiality order.” (Id.) In his reply, Quarles argues that Hartford's position is nothing short of a “willful violation of the Rules - forcing Mr. Quarles and the Court to waste limited resources to force Hartford to comply with its discovery obligations.” (DN 36 at 3.) He argues that Hartford is required to produce the requested information and that he has already “agree[d] to keep this information confidential in his discovery requests[.]”[5] (Id.)

The Court agrees with Hartford that the rationale for compelling an ERISA defendant to produce organizational charts such as those requested by Quarles is that the information may aid the plaintiff in developing evidence of the influence of a structural conflict of interest or bias on the denial of benefits or appeal. See, e.g., Davis, 2015 U.S. Dist. LEXIS 158313 at *38 (“This information will allow Davis to ensure that there is not substantial overlap in violation of 29 C.F.R. § 2560.503-1(h)(3)(ii) which mandates that the employee who reviews an adverse benefits determination is not the same individual who made the adverse benefits determination that is the subject of the appeal nor is he or she the subordinate of such individual.”). Because a de novo standard of review will be used in reviewing the administrative record and reaching an independent conclusion regarding the termination of Quarles's benefits and his appeal thereof, the Court concludes that Quarles is not entitled to production of documents depicting the organizational structure of its claims and appeals units. Hartford may, of course, agree to produce responsive documents. As is discussed below, the parties are free to negotiate in an effort to formalize a confidentiality agreement.

*12 For the foregoing reasons, the motion to compel is denied as to request for production nos. 11 and 12, seeking production of material documents related to the the organizational structure of Hartford's claims and appeals units.

Quarles seeks to depose the individual Hartford employees who signed the letters notifying him of the termination of his long-term disability benefits and the denial of his appeal. He also seeks to conduct a 30(b)(6) deposition of Hartford. He argues that he is entitled to conduct the depositions pursuant to Davis, Gluc, and others in that line of cases. (DN 30 at 8.) Hartford argues again that Quarles is not entitled to conduct the depositions because the existence of a structural conflict of interest is no longer relevant given that a de novo standard of review will be applied. (DN 34 at 11-13.)

The courts in Gluc, Davis, and other cases applying the same reasoning were persuaded as to the appropriateness of depositions precisely because of the ERISA plaintiff's allegation of a structural conflict of interest. In Gluc, the court reviewed a number of cases nationwide that addressed the issue and concluded as follows:

Gluc, 309 F.R.D. at 419; see id. (reviewing cases permitting depositions based on allegations of structural conflict of interest); see also Davis, 2015 U.S. Dist. LEXIS 158313 at *41 (“Here, Davis alleges that Hartford wrongfully denied his disability benefits due to an inherent structural conflict of interest. As this Court finds its sister court's analysis in Gluc persuasive, Davis's Motion to Compel Hartford to provide the aforementioned witnesses for depositions is granted.”) (citation and emphasis omitted); Scott-Warren v. Liberty Life Assur. Co. of Boston, 2016 U.S. Dist. LEXIS 90730 (W.D. Ky. July 12, 2016) (denying in part motion for protective order that would have prevented ERISA plaintiff from conducting 30(b)(6) deposition but expressly limiting scope of deposition to areas of discovery permitted where plaintiff alleges structural conflict of interest).

Because the Court's review of the termination of Quarles's benefits and the denial of his appeal will be de novo and limited to the administrative record, and because any structural conflict of interest will not affect the Court's review, the rationale applied in Davis, Gluc, and like cases does not apply here. Accordingly, the motion to compel is denied with respect to Quarles's requests for depositions of the individuals who signed his notices of termination of benefits and denial of appeal, as well as a 30(b)(6) deposition of Hartford.

At the top of each page of his interrogatories and requests for production appears a text box in which Quarles purports to instruct Hartford as to certain obligations in relation to its discovery responses. The instructions provide as follows:

(See generally DN 30-1, 30-2.)

Quarles presumes to take on the role of the Court. This is unacceptable. The Federal Rules of Civil Procedure, the Local Rules, and orders of this Court are the only authorities for the parties' rights and responsibilities in conducting civil discovery. Litigants and their counsel may not impose additional or inconsistent obligations on opposing parties or their counsel. The Rules do not require Hartford's counsel to contact Quarles's counsel before the expiration of the 30-day response period, regardless of how many objections Hartford may have to Quarles's discovery requests. Nor do the Rules provide that Hartford “shall be deemed” to have done anything included in the last sentence of Quarles's instructions if its counsel does not contact Quarles's counsel. See Fed. R. Civ. P. 33(b)(2) (“The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.”) (emphasis added); id. at (b)(4) (“The grounds 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.”); see also Fed. R. Civ. P. 34(b)(2)(A), (C).

In this case, the Court has not imposed on Hartford any obligations that would go beyond the scope of Rules 33 and 34. The Court has certainly not required Hartford to jump through the hoops that Quarles purports to place in Hartford's path. Accordingly, it is hereby ordered that Hartford may disregard the instructions purportedly issued by Quarles in the text boxes appearing at the top of each page of his discovery requests.

Additionally, Quarles purports to impose on Hartford instructions regarding confidentiality of responsive documents. The instructions that precede Quarles's requests for production of documents include the following language:

(DN 30-1 at 2.)

*14 Quarles wielded these instructions like a weapon in the course of his counsel's communications with Hartford's counsel and in filings with this Court. (See, e.g., DN 30 at 3 (characterizing Hartford's requests for a confidentiality order prior to producing documents as a “demand” that “ignored Mr. Quarles's request that it contact him in advance of responding if it believed confidentiality was a concern ....”); DN 34-2 at 3 (email from Quarles's counsel to Hartford's counsel stating, “When he submitted his written discovery, Mr. Quarles indicated that if Hartford responded timely he would agree to respect a confidential designation pending Hartford obtaining a Court order confirming the material is properly confidential. Hartford ignored this offer. The offer was withdrawn when Hartford chose to produce nothing ....”).)

These instructions and Quarles's attempted use of them are, in a word, problematic. The Federal Rules of Civil Procedure “govern the procedure in all civil actions and proceedings in the United States district courts[.]” Fed. R. Civ. P. 1. The Rules are to be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Id. The Rules provide a mechanism for the type of situation that Quarles apparently envisions arising in this case: namely, Rule 26(c), which governs protective orders. If efforts to confer in good faith with other affected parties to resolve a dispute fail, the recipient of discovery requests, including Hartford in this case, may seek a protective order from the Court. Extrajudicial agreements reached by the parties and protective orders entered by the Court frequently address concerns regarding confidentiality of documents produced in discovery. The instructions provided by Quarles regarding confidentiality of responsive documents do not comport with the terms of Rule 26(c) or other Federal Rules, Local Rules, or orders of this Court.

Quarles and his counsel may not take it upon themselves to supplant the Federal Rules of Civil Procedure with respect to what is deemed confidential or to create an arbitrary period of time during which such designation may be made. Accordingly, it is hereby ordered that Hartford may disregard the instructions regarding confidentiality that are located at page 2 of Quarles's requests for production. To the extent that confidentiality of documents produced by Hartford becomes an issue in this case, the parties shall be mindful of the terms of Rule 26(c).

Finally, Quarles requests that the Court impose on Hartford a number of sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure. (DN 30 at 8-11.) Quarles claims that Hartford “continues to flaunt [sic] its discovery obligations, obstructing discovery and needlessly delay[ing] case resolution,” and that sanctions are appropriate in order to deter future conduct of this kind. (Id. at 10.) The Court has denied each aspect of Quarles's motion to compel and has cautioned Quarles and his counsel about certain aspects of their conduct in the course of discovery. Even if the Court had found that the arbitrary and capricious standard of review applied and some additional discovery was permissible, sanctions would still not be appropriate because, in the still-developing state of the law in the wake of Glenn, Hartford's arguments regarding the scope of what it calls “conflict discovery” would be substantially justified. See Fed. R. Civ. P. 37(a)(5)(A)(ii).

Based on the foregoing, the Court finds that sanctions are not warranted.

Accordingly, IT IS HEREBY ORDERED as follows:

(1) Quarles's motion to compel (DN 30) is DENIED.

(2) No later than September 1, 2016, the parties shall JOINTLY FILE a proposed amended scheduling order. Disagreement regarding certain deadlines DOES NOT obviate the requirement of a joint filing.

*15 (3) The Court will conduct a telephonic status conference in this case on September 6, 2016 at 11:00 a.m. The Court will initiate the call. No later than September 2, 2016, counsel who will participate in the conference shall provide a telephone number at which they may be reached to Case Manager Theresa Burch at theresa_burch@kywd.uscourts.gov.

August 1, 2016

cc: Counsel of record