*1 Pending before the Court is Plaintiffs' Motion [ECF No. 289] to Compel, filed on January 4, 2023.[1] Plaintiffs also filed a Memorandum in Support of their Motion to Compel. See ECF No. 290. On January 18, 2023, Defendants filed a Response [ECF No. 300] along with a supporting Declaration [ECF No. 301] of Alexis E. Bates. On January 25, 2023, Plaintiffs filed a Reply [ECF No. 304] as well as a supporting Declaration [ECF No. 305] of James T. Carney. On January 26, 2023, the Court held an evidentiary hearing and oral argument on Plaintiffs' Motion. Maureen Davidson-Welling and Stephen G. Skinner appeared on behalf of Plaintiffs, and Joseph J. Torres and Kameron T. Miller appeared on behalf of Defendants at the hearing. For the reasons to follow, Plaintiff's Motion [ECF No. 289] to Compel is GRANTED IN PART AND DENIED IN PART.

This putative class action was initiated in July 2018 by eight Plaintiffs, each a retiree of PPG Industries, Inc. (“PPG”), or the surviving spouse of such a retiree, following the termination of Plaintiffs' retiree life insurance coverage under the PPG Employee Life and Other Benefits Plan (the “Benefits Plan” or the “Plan”). In the operative Amended Complaint, Plaintiffs assert eight counts titled: (1) Claim for Benefits, (2) Section 510 violation—Interference with Benefits, (3) Failure to Furnish Documents, (4) Violation of Fiduciary Duty, (5) Section 510 violation—Discrimination, (6) Breach of Contract, (7) ERISA Failure to Fund Pension Plan, and (8) ERISA Pension Forfeiture. ECF No. 69. In June 2021, the district court awarded summary judgment to the PPG Defendants on all claims. Plaintiffs appealed, and the Fourth Circuit affirmed the decision, with exception to Count One. The Fourth Circuit remanded Count One for consideration of whether the termination of Plaintiffs' retiree life insurance coverage contravened the Employee Retirement Income Security Act of 1974 (“ERISA”).

To expound further on Count One, Plaintiffs remaining claim asserts that when PPG transferred its obligations under the Benefits Plan in 2013 to another company (Axiall), Plaintiffs possessed already earned and vested rights to retiree life insurance coverage under the PPG Plan that could not be lawfully terminated. And, because their retiree life insurance coverage was vested under the Plan, Plaintiffs contend that the PPG Defendants are obliged under ERISA to supply such coverage, regardless of whether Axiall provides coverage under a new benefits plan.

After the Fourth Circuit remanded the vesting claim, the district court entered a new Scheduling Order on October 21, 2022, and discovery once again commenced with an end date of January 20, 2023. Plaintiffs served their Sixth Set of Requests for Production on November 4, 2022. Defendants served their written responses and objections to the Sixth Set of Requests for Production on December 5, 2022, but did not produce any documents at that time. Plaintiffs' counsel sent a deficiency letter to Defendants on December 13, 2022, as neither documents nor a privilege log had been produced yet in response to the Sixth Request. The parties conferred on December 20, 2022, regarding Defendants' objections to the Sixth Request, and narrowed the dispute to the remaining requests for production: 72-73, 75, 78-84, 86-90 and 93. Plaintiffs' Motion to Compel was filed on January 4, 2023, seeking an order from this Court directing Defendants to fully respond to the aforementioned requests, furnish all responsive documents, and produce a privilege log for any responsive documents that are being withheld on privilege grounds, all by a fixed date.

*2 Following the filing of this Motion to Compel, Defendants have produced documents they contend are responsive to these requests on January 9, 12, 17, and 25. Defendants additionally note that numerous documents have already been produced in the prior discovery period that are also responsive to these requests. In total, Defendants represent that an estimated 10,000 pages have been produced in discovery. ECF No. 307 at 12.

At the hearing on January 26, 2023, the parties stipulated that some of the issues before the Court have since been resolved by the Defendants' recent production of documents or will be resolved soon. In short, despite PPG's written objections to relevancy and proportionality, Defendants have agreed to search for and produce responsive, non-privileged documents for all of the requests, including documents related to employee welfare benefit plans beyond retiree life insurance. And for any documents withheld on the basis of privilege, PPG has agreed to provide Plaintiffs with a privilege log. Defendants anticipate this will all be completed by early February.

“Parties 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). Federal Rule of Civil Procedure 34(a) permits a request to the opposing party to produce documents or electronically stored information that are within the responding party's possession, custody, or control. Fed. R. Civ. P. 34(a)(1). When a party fails to make requested disclosures or discovery, the requesting party may file a motion to compel. Fed. R. Civ. P. 37(a)(1). “District courts generally have broad discretion in managing discovery, including whether to grant or deny a motion to compel.” Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., 43 F.3d 922, 929 (4th Cir. 1995).

When the Motion to Compel was filed on January 4, 2023, the following requests for production remained in contention: 72-73, 75, 78-84, 86-90 and 93.

A. Requests for Production 72 and 75

Prior to the hearing, the parties stipulated that Requests for Production 72 and 75 have been resolved and are accordingly DENIED AS MOOT.

B. Requests for Production 73, 78, 81, 84, and 86

Request for Production 73

Request for Production 73: Please produce all Minutes (and related documents) from the second half of 1968 through first half of 1970 of BOD, Compensation, the Employee Benefits Committee, and the Management Committee.

Response: Defendants object to the undefined phrase “related documents” as vague and ambiguous. Defendants further object to Request No. 73 to the extent it requests “all” such documents for the identified time period. Such a request is overbroad and also not relevant to any party's remaining claims or defenses, nor is it proportional to the needs of the case when taking into account all relevant considerations. Subject to the foregoing objections, Defendants will produce documents responsive to Request No. 73 regarding the Employee Benefits Committee. Defendant will also produce documents from the identified time period for the other identified committees to the extent they address retiree life insurance and any reservation of rights related to that benefit.

At the hearing, Defendants represented to the Court that the search is complete and that all responsive non-privileged documents for this request have been produced or will be produced soon after the Management Committee minutes and related documents are collected, reviewed, and redacted. ECF No. 307 at 9-12, 15-16, 24-25, 27-29.[2] Defendants also clarified that, despite their written objections, the search and production of documents was not limited to just retiree life insurance, but all employee welfare benefits. Id. at 10, 14-16. Defendants further represented that no Compensation Committee existed between 1968 and 1970, so no documents are responsive to that portion of the request. Id. at 9, 26. Defendants have produced all minutes from the Employee Benefits Committee[3] from 1965 to 1986, and only redacted a few select portions to the extent there were privileged discussions. Id. at 9, 11, 26-27. Defendants produced the Board of Director minutes from 1965 to either 1984, 1985, or 1986, only redacting portions that do not discuss employee benefits. Id. at 10, 15-17, 21-22, 28. And for the remaining portion of Request for Production 73, the Management Committee documents, Defendants are in the process of tracking down, reviewing, redacting, and producing them. Id. at 10, 16, 24, 27-29.

*3 As noted above, some of the documents have been produced in redacted form as they do not address employee benefits. However, the documents have been redacted in a way for the reader to discern what topics are being discussed. ECF No. 307 at 15-17, 21-22, 25. At the hearing, Plaintiffs voiced their desire to have unredacted versions of all these documents, but the Court agrees with Defendants that this would not be relevant or proportional to the needs of the case. Id. at 21, 25, 30. Defendants have offered to answer any questions Plaintiffs have about the redacted sections in good faith and have agreed to provide a privilege log for any documents withheld or redacted on that basis. Id. at 9, 17, 22.

Request for Production 78

Request for Production 78: Please produce any and all documents reflecting communications to employees/retirees (including, but not limited, to newsletters and SMMs) from 1950-1983 dealing with the right or power of PPG to change employee welfare benefit plans.

Response: See documents previously produced in response to Plaintiffs' Document Request Nos. 2 and 7. Answering further, Defendants object to Request No. 78 to the extent it seeks information regarding “employee welfare benefit plans” beyond the retiree life insurance benefits at issue in this litigation. Such a request is overbroad and also not relevant to any party's remaining claims or defenses, nor is it proportional to the needs of the case when taking into account all relevant considerations. Defendants are therefore not producing additional documents concerning Request No. 78, pending the parties' discussions regarding the appropriate scope, if any, of Request No. 78.

Plaintiffs issue here was with the scope of Defendants' objection, limiting its search and production to the retiree life insurance benefits. ECF No. 307 at 31-32. However, Plaintiffs' concern about Request for Production 78 is moot as Defendants agreed to search for and produce information regarding other benefits in addition to life insurance. Id. at 33, 36-38.

Request for Production 81

Request for Production 81: Any documents reflecting proposals to restore the reservation of rights clause in the employee welfare benefit plans during the period 1970–1984.

Response: Defendants object to Request No. 81 to the extent it seeks information regarding “employee welfare benefit plans” beyond the retiree life insurance at issue in this litigation. Such a request is overbroad and also not relevant to any party's remaining claims or defenses, nor is it proportional to the needs of the case when taking into account all relevant considerations. Defendants further object to Request No. 81 to the extent it requests “all” such documents for the identified time period. Subject to the foregoing objections, Defendants will produce non-privileged documents for the identified time period to the extent they relate to the retiree life insurance benefits at issue in this litigation.

The PPG Defendants previously produced responsive documents it found regarding the 1984 addition of a reservation of rights clause applicable to its retiree life insurance benefit. ECF No. 307 at 53. Defendants also agreed to search for and produce additional responsive, non-privileged documents related to all employee benefits if it finds any more that exist. Id. at 53-55. After Defendants review the Management Committee documents, they may be able to say definitively that no more responsive documents exist than those already produced. Id.

Request for Production 84

Request for Production 84: Please produce any and all documents (including communications to employees/retirees) reflecting the origin, purpose or meaning of the “guaranteed “language [sic] used with reference to the SIB benefits.

*4 Response: Defendants object to Request No. 84 to the extent it requests “all” such documents for the identified time period. Such a request is overbroad and also not relevant to any party's remaining claims or defenses, nor is it proportional to the needs of the case when taking into account all relevant considerations. Defendants further object to Request No. 84 to the extent it seeks the production of documents subject to the attorney-client privilege. Subject to the foregoing objections, Defendants search for responsive documents continues.

Defendants produced all responsive documents for this request on January 25, 2023, and they also produced responsive documents on this topic in the earlier stages of the case. ECF No. 307 at 70-71, 73. Defendants represent that they have “nothing more to produce” and that no documents for this request have been withheld/redacted on privilege grounds, so a privilege log is not necessary. Id. at 72-73.

Request for Production 86

Request for Production 86: Please produce any and all documents relating to the establishment of the SIB or the modification of the welfare plan in 1996 which eliminated the SIB benefit except for a grandfathered class.

Response: Defendants object to Request No. 86 to the extent it requests “all” such documents for the identified time period. Such a request is overbroad and also not relevant to any party's remaining claims or defenses, nor is it proportional to the needs of the case when taking into account all relevant considerations. Defendants further object to Request No. 84 to the extent it seeks the production of documents subject to the attorney-client privilege. Subject to the foregoing objections, Defendants search for responsive documents continues.

Defendants produced responsive materials to this request in early January and the remainder on January 25, 2023. ECF No. 307 at 75, 77.

In sum, as it relates to Requests for Production 73, 78, and 81, Plaintiffs' Motion is GRANTED, and Defendants are ORDERED to produce any remaining documents responsive to Requests for Production 73, 78, and 81 by February 10, 2023, upon completion of its review of the Management Committee minutes and related documents. Plaintiffs are GRANTED leave to file a motion should issues arise with the redactions. As it relates to Requests for Production 84 and 86, Plaintiffs' Motion is DENIED AS MOOT, because Defendants have fully produced documents responsive to these requests. Finally, Defendants are ORDERED to supplement their written responses to Requests for Production 73, 78, 81, 84, and 86 by February 10, 2023, specifically to disclose the scope of its search consistent with its representations at the January 26, 2023 hearing and to pair its previous production of documents to the corresponding request for production.

C. Requests for Production 79, 80, 82, 83, and 90

Request for Production 79

Request for Production 79: Please produce any and all documents reflecting communications from employees/retirees during the period 1950– 1983 dealing with the right or power of PPG to change employee welfare benefit plans.

Response: Defendants object to Request No. 79 to the extent it seeks information regarding “employee welfare benefit plans” beyond the retiree life insurance at issue in this litigation. Such a request is overbroad and also not relevant to any party's remaining claims or defenses, nor is it proportional to the needs of the case when taking into account all relevant considerations. Defendants also object to Request No, 79 as unduly burdensome, to the extent there is no central or readily available repository of “all” documents for all employee and/or retirees during the 33 year time period specified. Subject to the foregoing objections, Defendants search for responsive documents continues.

*5 Defendants represent that a search has been conducted, beyond just communications related to retiree life insurance benefits, and no documents have been discovered (or produced) in response to this request because PPG has no records of employees writing letters about the right or power of PPG to change employee welfare benefit plans. ECF No. 307 at 40, 42-43. Plaintiffs conceded that if the Defendants have undertaken a reasonable search for those documents and cannot find them, then that is acceptable, and this issue is resolved. Id. at 44-45.

Request for Production 80

Request for Production 80: Please produce any and all documents reflecting proposals to eliminate the reservation of rights clause in employee welfare benefit plans during the period 1965–1970.

Response: Defendants object to Request No. 80 to the extent it seeks information regarding “employee benefit plans” beyond the retiree life insurance at issue in this litigation. Such a request is overbroad and also not relevant to any party's remaining claims or defenses, nor is it proportional to the needs of the case when taking into account all relevant considerations. Defendants further object to Request No. 80 to the extent it requests “all” such documents for the identified time period. Subject to the foregoing objections, Defendants will produce non-privileged documents for the identified time period to the extent they relate to the retiree life insurance benefits at issue in this litigation.

According to Plaintiffs, Request for Production 80 was another of the requests where Defendants communicated to Plaintiffs that they were standing on their objection regarding only limiting their search to retiree life insurance. ECF No. 307 at 46. At the hearing, Plaintiffs agreed that if Defendants were to amend their responses to say that they have conducted a search of all the employee benefit materials without limiting their search to retiree life insurance, then that would be acceptable. Id. Defendants represented that they did conduct the search, did not limit that search to removal of reservation of rights clauses for retiree life, and found no responsive documents. Id. at 48-49, 51-52.

Request for Production 82

Request for Production 82: Please produce any and all documents reflecting proposals to modify or terminate employee welfare benefit plans during the period 1969-1984 which were impacted by the absence or presence of a reservation of rights clause in such plans.

Response: Defendants object to Request No. 82 to the extent it seeks information regarding “employee welfare benefit plans” beyond the retiree life insurance at issue in this litigation. Such a request is overbroad and also not relevant to any party's remaining claims or defenses, nor is it proportional to the needs of the case when taking into account all relevant considerations. Defendants further object to Request No. 82 to the extent it requests “all” such documents for the identified time period. Subject to the foregoing objections, Defendants will produce non-privileged documents for the identified time period to the extent they relate to the retiree life insurance benefits at issue in this litigation.

Request for Production 83

Request for Production 83: Please produce any and all non-privileged documents between 1950 and 1984 reflecting consideration of the possibility of creating a reservation of rights clause, eliminating the reservation of rights clause or the restoring the reservation of rights clause.

Response: Defendants object to Request No. 83 to the extent it seeks information regarding employee benefit plans beyond the retiree life insurance at issue in this litigation. Such a request is overbroad and also not relevant to any party's remaining claims or defenses, nor is it proportional to the needs of the case when taking into account all relevant considerations. Defendants further object to Request No. 83 to the extent it requests “all” such documents for the identified time period. Subject to the foregoing objections, Defendants will produce non-privileged documents for the identified time period to the extent they relate to the retiree life insurance benefits at issue in this litigation.

*6 According to Plaintiffs, Requests for Production 82 and 83 are similar objection issues regarding PPG only limiting their search to retiree life insurance. ECF No. 307 at 60, 66-67. Defendants represented that they did conduct the search for these requests, did not limit that search to just retiree life insurance but instead all employee benefits, and have found no responsive documents for Request for Production 82. Id. at 61-62, 66-67. If responsive documents are discovered, PPG represents that they will produce them. Id. at 64-65. The same applies for Request for Production 83. Defendants have agreed to produce responsive, non-privileged documents to the extent they relate to any employee benefits. Id. at 66-67.

Request for Production 90

Request for Production 90: Please produce any and all actuarial calculations and other calculations (along with backup material) showing the value of the claims of the Class and Subclass.

Response: Defendants object to Request No. 90 as premature because there is no Class or Subclass at this time.

Lastly, for Request for Production 90, Defendants advised Plaintiffs that no such documents exist. ECF No. 307 at 89, 91-92.

As it relates to Requests for Production 79, 80, 82, 83, and 90, Plaintiffs' Motion is DENIED AS MOOT. However, Defendants are ORDERED to supplement their written responses by February 10, 2023, stating (if applicable and accurate) that a reasonable search has been conducted, which was not limited to just retiree life insurance but instead all employee benefits, and that no documents have been found responsive to Requests for Production 79, 80, 82, 83, and 90.

D. Requests for Production 87, 88, 89, and 93

Request for Production 87

Request for Production 87: Please produce any and all communications from or to Karen Rathburn to others (including, but not limited to, Ms. Sheets and Ms. Rathburn's administrative assistant) dealing with or relating to the search for documents relating to the adoption of the 1984 reservation of rights clause.

Response: Defendants object to Request No. 87 to the extent it seeks documents subject to the attorney-client privilege and the attorney work product doctrine. Subject to the foregoing objections, Defendants will produce any non-privileged documents responsive to Request No. 87.

Request for Production 88

Request for Production 88: Please produce any and all directives issued by PPG, or its counsel, with respect to preservation of records related to this case.

Response: Defendants object to Request No. 88 because it seeks documents subject to the attorney-client privilege and the attorney work-product doctrine.

Request for Production 89

Request for Production 89: Please produce any and all notes or memorandum made by Karen Rathburn relative to her discussions with her administrative assistant or any individual other than counsel about the EBC documents and their discovery.

Response: Defendants object to Request No. 89 to the extent it seeks documents subject to the attorney-client privilege and the attorney work product doctrine. Subject to the foregoing objections, Defendants will produce any non-privileged documents responsive to Request No. 89.

Request for Production 93

Request for Production 93: Please produce any documents which reflect communications between Karen Rathburn or other PPG officials and the records storage group relative to the production of records which are or may be relevant to the issues in this case.

Response: Defendants object to Request No. 93 because it seeks documents subject to the attorney-client privilege and the attorney work product doctrine.

At the hearing, Defendants maintained their objection to Requests for Production 87, 88, and 93 and stated they are in the process of reviewing communications and withholding documents based on attorney-client privilege and the attorney work product doctrine. ECF No. 307 at 79-88, 92-93. Further, to the extent such documents exist, PPG maintains the same position for Request No. 89 as it does for Request No. 87. ECF No. 300 at 14. Given Defendants have not yet provided a privilege log, the Court will refrain from ruling on these requests for the moment. Defendants are ORDERED to review the responsive materials and provide a privilege log to Plaintiffs by February 10, 2023, for Requests for Production 87, 88, 89, and 93. Plaintiffs are GRANTED leave to file a motion related to the documents withheld on the basis of privilege should there remain any disputes, at which point the Court can review the documents in camera to make the appropriate privilege determinations for discovery purposes. In this regard, Plaintiffs' Motion is premature as to the privilege issues and is DENIED, with leave to refile.

*7 The Court reminds all parties of the ongoing duty to supplement, as required by the Federal Rules of Civil Procedure, should additional responsive, nonprivileged documents be discovered.

For the reasons set forth above, Plaintiffs' Motion [ECF No. 289] to Compel is GRANTED IN PART, to the extent the Court has ordered some of the relief sought by Plaintiffs, AND DENIED IN PART, as some of the issues are now moot. Each party shall bear its own attorney's fees and costs incurred as a result of this Motion.

Any party may, within fourteen (14) days of this Order, file with the Clerk of the Court written objections identifying the portions of the Order to which objection is made, and the basis for such objection. Fed. R. Civ. P. 72(a). A copy of such objections should also be submitted to the Honorable Gina M. Groh, United States District Judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a).

Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. See 28 U.S.C. § 636(b)(1); Wright v. Collins, 766 F.2d 841, 845–48 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); see also Thomas v. Arn, 474 U.S. 140, 155 (1985).

The Court directs the Clerk of the Court to provide a copy of this Order to all counsel of record, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.