Hendricks v. Aetna Life Ins. Co.
Hendricks v. Aetna Life Ins. Co.
2024 WL 4720802 (C.D. Cal. 2024)
September 3, 2024
Audero, Maria A., United States Magistrate Judge
Summary
The court granted a motion to compel a fourth deposition of Aetna under Rule 30(b)(6) to obtain information related to the denial of claims for a specific medical procedure. The court also addressed objections raised by Aetna regarding relevance, proportionality, and burden, and granted leave for the deposition with limitations. The court also found that the requested information was described with reasonable particularity.
BRIAN HENDRICKS; ANDREW SAGALONGOS, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
AETNA LIFE INSURANCE COMPANY, Defendant.
ANDREW HOWARD, on behalf of himself and all others similarly situated, Plaintiffs,
v.
AETNA LIFE INSRUANCE COMPANY, Defendant
v.
AETNA LIFE INSURANCE COMPANY, Defendant.
ANDREW HOWARD, on behalf of himself and all others similarly situated, Plaintiffs,
v.
AETNA LIFE INSRUANCE COMPANY, Defendant
Case No. 2:19-cv-06840-AB(MAAx), Consolidated with Case No. 2:22-cv-01505-CJC(MRWx)
United States District Court, C.D. California
Filed September 03, 2024
Audero, Maria A., United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL RULE 30(b)(6) DEPOSITION (ECF No. 166)
I. INTRODUCTION
*1 Before the Court is Plaintiffs' Motion to Compel Rule 30(b)(6) Deposition, filed August 14, 2024 (“Motion”). (Mot., ECF No. 167.) The Motion is filed jointly by Plaintiffs Brian Hendricks and Andrew Sagalongos (collectively, “Plaintiffs”), on the one hand, and Defendant Aetna Life Insurance Company (“Aetna” or “Defendant”), on the other, in the form of a Joint Stipulation as required by Central District of California Local Civil Rule (“Local Rule”) 37-2. (See generally Mot.) Through the Motion, Plaintiffs seek, and Aetna opposes, an order compelling the fourth deposition of Aetna pursuant to Federal Rule of Civil Procedure (“Rule”) 30(b)(6). (See generally id.)
In support of their request, Plaintiffs filed (1) their portion of the Motion (see generally Mot.); (2) the Declaration of Plaintiffs' Counsel Joshua S. Davis (“Davis Declaration”) (Davis Decl., ECF No. 167-1) and its accompanying Plaintiffs' Exhibits 1 through 4 (Pls.' Ex. 1 (id. at 5–10); Pls.' Ex. 2 (id. at 12–19); Pls.' Ex. 3 (id. at 21–41); Pls.' Ex. 4 (id. at 43–60); (3) Plaintiffs' Supplemental Memorandum (“Plaintiffs' Memo”) (Pls.' Memo, ECF No. 171); and (4) the Declaration of Plaintiffs' Counsel Adrian J. Barrio (ECF No. 171-1) and its accompanying Plaintiffs' Exhibits 5 through 9 (Pls.' Ex. 5 (id. at 5–15); Pls.' Ex. 6 (id. at 17–23); Pls.' Ex. 7 (id. at 25–31); Pls.' Ex. 8 (id. at 33–38); Pls.' Ex. 9 (id. at 40–44)).
In support of its opposition, Aetna filed (1) its portion of the Motion (see generally Mot.); (2) the Declaration of Nathaniel A. Cohen (“Cohen Declaration”) (Cohen Decl., ECF No. 167-2); (3) the Supplemental Memorandum of Defendant (“Aetna's Memo”) (Aetna's Memo, ECF No. 172); and (4) the Second Declaration of Nathaniel A. Cohen (ECF No. 172-1) and its accompanying Aetna's Exhibit A (Aetna's Ex. A (id. at 6–14)).
Having read and considered the papers submitted by the parties, the Court finds the Motion suitable for disposition without a hearing. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. On this basis, the Court vacated the September 4, 2024 hearing and took it off calendar. (ECF No. 173.) For the reasons set forth below, the Motion is GRANTED in part and DENIED in part.
II. BACKGROUND
A. Factual and Procedural Background
This case is proceeding as a certified class action on the basis of Plaintiffs' Third Amended Complaint, filed February 8, 2021 (“TAC”) (“Hendricks Action”). (TAC, ECF Nos. 55, 94, 148.) It is consolidated with another class action entitled Andrew Howard v. Aetna Life Insurance Company, Case No. 2:22-cv-01505-CJC-MRW (“Howard Action”). (ECF No. 158.) Plaintiffs bring the Hendricks Action under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001–1461. (See generally TAC.) Plaintiffs allege that they and the class members they represent were harmed as a result of Aetna's general policy of denying coverage requests for lumbar artificial disc replacement (“L-ADR”) surgery on the basis that the surgery is “experimental or investigational,” which policy Plaintiffs contend is erroneous. (See generally TAC.) Among other things, the TAC seeks three class-wide injunctions, one of which is relevant to the Motion: “requiring Aetna to reform its claims adjudication process so as to adjudicate future claims without the erroneous ‘experimental and investigational’ denial basis and do so under appropriate and valid medical criteria. (TAC 17.)
All persons covered under Aetna Plans, governed by ERISA, self-funded or fully insured, whose requests for lumbar artificial disc replacement surgery were denied at any time within the applicable statute of limitations, or whose requests for that surgery will be denied in the future, on the ground that lumbar artificial disc replacement surgery is experimental or investigational, and whose denials will be subject to abuse of discretion review by the district court.
After the Hendricks Class was certified, and effective February 8, 2023, Aetna changed its policy (“Policy Change” and “New Policy”). (Mot. 3, 5.) Based on the Policy Change among other things, on June 2, 2023 Aetna moved to decertify the Hendricks Class (“Decertification Motion”). (Decert. Mot., ECF No. 136.) In its Decertification Motion, Aetna explained that the New Policy “provide[s] coverage ... based on accepted clinical criteria and an individualized review of each claimant's medical history ....” (Id. at 16.) Aetna also suggested that Plaintiffs' injunction request was rendered moot by the Policy Change. (Id. at 15.)
On July 25, 2023, the Court denied Aetna's Decertification Motion (“Decertification Denial”). (Decert. Denial, ECF No. 148.) Relevant to this Motion is the Court's statement that “Aetna's revision of its policy does not moot Plaintiffs' request for an injunction” because, among other reasons, “[n]othing prevents Aetna from returning to its old ways, so the injunction is still viable notwithstanding Aetna's change of heart.” (Id. at 15.)
All persons covered under Aetna Plans, governed by ERISA, self-funded or fully insured, whose requests for lumbar artificial disc replacement surgery were denied at any time from March 4, 2019 to February 8, 2023, on the ground that lumbar artificial disc replacement surgery is experimental or investigational, and whose denials will be subject to abuse of discretion review by the district court.
(“Howard Certification Order,” Howard Cert. Order, ECF No. 72, at 24.) The only notable difference between the Hendricks and Howard class definitions is that, unlike the Hendricks Class which includes persons who were denied the L-ADR procedure both in the past as well as into the future, the Howard Class ends on the day the New Policy became effective. (Compare Hendricks Cert. Order 17 with Howard Cert. Order 24.)
B. The Discovery Dispute
On July 9, 2024, Plaintiffs noticed a fourth deposition of Aetna pursuant to Rule 30(b)(6), setting same for July 24, 2024 (“Deposition Notice”). (Pls.' Ex. 1.) Seeking to understand “the specific criteria relied upon by Aetna to deny L-ADR claims after the[P]olicy [C]hange” (Mot. 3), Plaintiffs set forth the following six topics (“Topic”) upon which examination was requested:
- Aetna's approvals and denials of pre-service and post-service claims for single-level lumbar Artificial Disc Replacement (L-ADR) since February 10, 2023, including: (1) the total approved; (2) total denied for lack of medical necessity; (3) the grounds (i.e., the specific criteria) upon which Aetna denied each L-ADR claim; (4) the claims data produced by Aetna on May 6, 2024 bates Aetna_011814–011815; and (5) all documents produced by Aetna that set forth basis (i.e., the specific criteria) for each of Aetna claim denial.
- The claims data produced by Aetna on June 23, 2023 bates numbered Aetna_011552–011553.
(Pls.' Ex. 1 at 7.)
Aetna served its objections to the Deposition Notice on July 18, 2024 (“Deposition Objections”) (Pls.' Ex. 2), advising Plaintiffs that it could not designate witnesses to testify to the Topics as drafted and requesting that the parties meet and confer. (Pls.' Ex. 2.) As a result of the parties' meet-and-confer efforts, Aetna agreed in principle to designate and produce witnesses to testify as to Topics 1(1), 1(2), 1(4), and 2, but not as to Topics 1(3) and 1(5). (Davis Decl. ¶ 6.) For purposes of this Motion, Aetna stands on two procedural objections as to all Topics[1] and five substantive objections as to Topics 1(3) and 1(5), as follows:
Procedural Objection 1: Plaintiffs already have taken ten depositions and have not sought leave of court to take this eleventh deposition as required by Rule 30(a)(2)(A)(i);Procedural Objection 2: Plaintiffs already have taken three depositions of Aetna and have not sought leave of court for this fourth deposition as required by Rule 30(a)(2)(A)(ii);Substantive Objection 1: Plaintiffs fail to describe Topics 1(3) and 1(5) with the reasonable particularity required by Rule 30(b)(6);Substantive Objection 2: Plaintiffs fail to describe the documents they seek to address through Topic 1(5) and the nature of the testimony related thereto with the reasonable particularity required by Rule 30(b)(6);Substantive Objection 3: Topics 1(3) and 1(5) seek information that is overbroad and not relevant to this case in violation of Rule 26(b)(1);Substantive Objection 4: Requiring a witness to testify as to Topics 1(3) and 1(5) would be unduly burdensome and disproportional to the needs of the case, in violation of Rule 26(b)(1);Substantive Objection 5: It is not reasonable to expect a witness to prepare for and retain the information related to the many claims that would be the subject of Topic 1(3).
(See generally Mot.; see generally Aetna's Memo.) In addition, Aetna argues that, if the Court permits any further deposition of Aetna, it should limit such to Topics 1(1), 1(2), 1(4), and 2, and to a maximum of four hours. (Mot. 5.)
In response, Plaintiffs argue that Aetna's objections are invalid because Aetna did not obtain a protective order precluding or limiting the deposition. (Mot. 3–4; Pls.' Memo 2.) Plaintiffs further argue that Aetna's substantive objections fail as impermissible “boiler plate” and, in any event, lack merit. (Id. at 3–4, 8–11, 15–16; Pls.' Memo 2–6.)
C. Efforts to Resolve the Discovery Dispute
*4 Upon receipt of the Deposition Notice, Aetna initiated a meet-and-confer process with Plaintiffs. (Mot. 5 n.1.) Other than Aetna's assertion that Plaintiffs failed to meet and confer before issuing the Deposition Notice, it is unclear to the Court what happened during this effort. For purposes of this Motion, however, the Court notes that the parties were unable to resolve their dispute without Court intervention. As a result, Plaintiffs filed the Motion. The next day, the case was transferred to the undersigned for discovery purposes. (ECF No. 168.)
Because the parties had not participated in an informal discovery conference (“IDC”) before filing the Motion, as is the undersigned's practice, the Court convened the IDC. (ECF No. 169.) During the IDC, a proposal was made to resolve the dispute, which Plaintiff accepted but which Aetna was unable to accept in the time provided. (ECF No. 173.) Unable to resolve the dispute informally, the Court ordered the parties to submit their supplemental memoranda pursuant to Local Rule 37-2.3. (Id.)
III. ANALYSIS
A. Legal Standard
“Rule 30(b)(6) depositions ... are often referred to as ‘persons most knowledgeable’ or ‘persons most qualified’ depositions because ‘the notice of deposition or subpoena is directed at the entity itself’ and ‘the entity will then be obligated to produce the ‘most qualified’ person [or persons] to testify on its behalf ....” Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 798 n.4 (citing Schwarzer, Tashima & Wagstaffe, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial ¶ 11:1409 at 11-142 (The Rutter Group 2003).) Thus, once served with a Rule 30(b)(6) deposition notice, “the responding party is required to produce one or more witnesses knowledgeable about the subject matter of the noticed topics.” Great American Ins. Co. of New York v. Vegas Constr. Co., Inc., 251 F.R.D. 534, 538 (D. Nev. 2008) (citing Marker v. Union Fidelity life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989)).
A designated corporate representative's testimony “represents the knowledge of the corporation, not of the individual deponents.” Id. Accordingly, regardless of whether the individual deponent has personal knowledge on the designated topic, a corporation has “a duty to make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the designated subject matter.” Id. at 539 (citations omitted). “ ‘By its very nature, a Rule 30(b)(6) deposition notice requires the responding party to prepare a designated representative so that he or she can testify on matters not only within his or her personal knowledge, but also on matters reasonably known by the responding entity.’ ” Id. (quoting Alliance v. District of Columbia, 437 F. Supp. 2d 32, 37 (D.D.C. 2006)). If an organization designates a witness it believes in good faith would be the most knowledgeable on the designated topic and that turns out to be incorrect, the corporation is obligated to designate an additional knowledgeable deponent. Id. at 540 (citations omitted).
B. Plaintiffs' Fourth Aetna Deposition May Proceed
Aetna argues that it need not appear at what will be its fourth deposition because the Deposition Notice is procedurally invalid ab initio under two theories: (1) it exceeds the ten-deposition limit, which is not permitted without leave of court under Rule 30(a)(1)(A)(i), and (2) it is a successive deposition of the same deponent, which is not permitted without leave of court under Rule 30(a)(1)(A)(ii). (Mot. 4–5, 11; Aetna's Memo 3–4.) Plaintiffs respond that these objections are invalid because “the proper procedure to object to a Rule 30(b)(6) deposition notice is not to serve objections on the opposing party, but to move for a protective order,” which Aetna has not done. (Mot. 3, 8; Pls.' Memo 2.)
1. Aetna should have obtained a protective order.
*5 It long has been settled in the Ninth Circuit that a party may not unilaterally refuse to appear for properly noticed depositions but instead must obtain a protective order that postpones or dispenses with his duty to appear. See Fed. R. Civ. P. 37(d)(2) (“A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).”). Applying the predecessor to Rule 26(c), the Ninth Circuit ruling in Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257 (9th Cir. 1964) (“Pioche”), is instructive here.
Rule 30(b)[2] places the burden on the proposed deponent to get [a protective] order, not just make a motion. And if there is not time to have his motion heard, the least that he can be expected to do is to get an order postponing the time of the deposition until his motion can be heard. He might also appear and seek to adjourn the deposition until an order can be obtained. But unless he has obtained a court order that postpones or dispenses with his duty to appear, that duty remains. Otherwise, ... a proposed deponent, by merely filing motions under Rule 30(b), could evade giving his deposition indefinitely. Under the Rules, it is for the court, not the deponent or his counsel, to relieve him of the duty to appear.
Id. at 269 (citation omitted) (bracketed footnote added).
A host of authorities follow Pioche. See e.g., Paine v. Inv. & Admin. Comm. of the Walt Disney Co. Sponsored Qualified Ben. Plans & Key Emples. Deferred Comp. & Ret. Plan, No. CV 20-8610-VAP (KSx), 2022 U.S. Dist. LEXIS 92159, at *14 (C.D. Cal. Mar. 30, 2022) (“Defendants' position that it can unilaterally refuse to appear for properly noticed depositions and need not seek a protective order, if adopted, would make a mockery of the Federal Rules.”); Epicentrx, Inc. v. Carter, No. 20cv1058-TWR-LL, 2021 U.S. Dist. LEXIS 259040, at *2 (S.D. Cal. Dec. 3, 2021) (“In order to relieve a properly noticed deponent or counsel of the duty to appear at a deposition, the opposing party must obtain a protective order before the deposition date.”) (citations omitted); Diaz v. Fox, No. 2:14-cv-2705 JAM CKD P, 2017 U.S. Dist. LEXIS 186382, at *31 (E.D. Cal. Nov. 9, 2017) (same) (quoting Fed. R. Civ. P. 37(d)(2)); Leicht v. Southwest Carpenters Pension Plan, No. SACV 12-00354 SJO (PLAx), 2013 U.S. Dist. LEXIS 202193, at *6–7 (C.D. Cal. Jan. 22, 2013) (“parties engage in sanctionable conduct by failing to appear for a properly noticed deposition without having first filed a motion for a protective order or otherwise acting to postpone the deposition until any objections have been ruled upon.”) (citing Pioche, 333 F.2d at 269); Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625, 628 n.1 (C.D. Cal. 2005) (holding that a corporation risks sanctions if the designated individual fails to appear in the absence of a protective order). The Court could go on and on with similar authorities, but these are sufficient to make the point.
Still, Aetna's argument is a bit more nuanced than the situation addressed in Pioche and its progeny. In Pioche and all of the authorities that followed it, the party resisting the deposition did not argue, and the courts did not find, that the deposition notice was invalid in the first instance, as Aetna argues here. Rather, all of these cases begin with the premise that the deposition was “properly noticed.” Aetna contends that its authorities compel a different result because they address a deposition found to not be properly noticed in the first instance, as Aetna argues here. (Mot. 4–5; Aetna's Memo 3–4) (both citing Hubbard v. Cnty. of Los Angeles, No. CV 23-03541-PA (RAOx), 2024 U.S. Dist. LEXIS 137779, at *6 (C.D. Cal. Jan. 18, 2024) (deciding the request to compel a 30(b)(6) deposition without a precursor protective order, noting that “the law is settled that a party may not notice a second 30(b)(6) deposition without first obtaining leave of court to do so.”); Peck v. Cty. of Orange, No. 2:19-cv-04654-DSF-AFMx, 2020 U.S. Dist. LEXIS 100363, at *3–4 (C.D. Cal. May 11, 2020) (deciding a motion to compel a second 30(b)(6) without a precursor protective order on the ground that the deposition notice was infirm due to its failure to, among other things, obtain leave of court for a second deposition of the same deponent); Burdick v. Union Sec. Ins. Co., No. CV 07-4028 ABC(JCx), 2008 U.S. Dist. LEXIS 99994, at *12 (C.D. Cal. Dec. 3, 2008) (finding invalid a notice for a second Rule 30(b)(6) deposition issued without leave of court).)
*6 Thus, the issue before the Court appears to be the intersect between the Rule 37(d)(2)/Pioche rule that a protective order is required to avoid or limit a properly noticed deposition, as Plaintiffs contend, and the argument—not yet addressed by the Ninth Circuit—that this requirement is not triggered by an invalid deposition notice, as Aetna contends. While an interesting question, the Court is able to, and does, resolve this Motion without deciding whether Aetna's authorities carry the day.
2. Construing Aetna's opposition to the Motion as a request for protective order, the Court finds that Aetna is entitled to protection.
As a starting point, and pursuant to its “broad discretion to manage discovery” (see Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011), the Court construes Aetna's opposition to the Motion as a request for a protective order under Rule 26(c).
Rule 26(c)(1) provides that a court may make any order limiting discovery to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). To obtain such a protective order, the party resisting discovery or seeking limitations must, under Rule 26(c), show good cause for its issuance. “For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Phillips v. GMC, 307 F.3d 1206, 1210–11 (9th Cir. 2002). “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” Beckman v. Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).
Under this framework, the Court turns to the question of whether good cause exists to prohibit Aetna's fourth deposition on the ground that the Deposition Notice is invalid for the two reasons advanced by Aetna.
Aetna first argues that, because the deposition would exceed the ten-deposition limit of Rule 30(a)(2)(A)(i), Plaintiffs' failure to obtain leave of Court to take the deposition renders the Deposition Notice invalid. (Mot. 4–5; Aetna's Memo. 3–4.) Aetna explains that Plaintiffs already have taken seven percipient witness depositions and three Rule 30(b)(6) depositions of Aetna, for a total of ten so far, and that the request fourth Aetna deposition would constitute Plaintiffs' eleventh deposition. (Cohen Decl. ¶¶ 3–12.) This argument fails because it misstates the question. The proper question here is whether a successive Rule 30(b)(6) deposition with topics different from the earlier deposition (see Pls.' Memo 3–4 (explaining that the first through third Aetna depositions did not involve inquiries into Aetna's post-Policy Change claims activity)) counts toward the ten-deposition limit.[3] Aetna's authorities do not address this question. In Ribota v. Cnty. of San Bernardino, No. EDCV 20-505-JGB (KKx), 2022 U.S. Dist. LEXIS 206578, *11–12 (C.D. Cal. Oct. 3, 2022), the question before the Court was whether individualized discovery of twenty opt-in members of a collective action was proportional to the needs of the case when representative class-wide discovery was available. Similarly, in Zissa v. Cnty. of L.A., No. 2:18-cv-10174-CJC (JDEx), 2021 U.S. Dist. LEXIS 195623, at *9–10 (C.D. Cal. Jan. 19, 2021), the question before the Court was whether to grant a request to depose twenty percipient witnesses beyond the depositions already taken, none of whom were identified as a corporation subject to Rule 30(b)(6). Likewise, in Ortolani v. Freedom Mortg. Corp., No. EDCV 17-1462-JGB (KKx), 2018 U.S. Dist. LEXIS 57652, at *12–13 (C.D. Cal. Apr. 8, 2018), the question before the Court was whether the plaintiff's proposed additional thirty to forty depositions of putative class members in order to establish commonality and typicality of claims was proportional to the needs of the case. In that these authorities are not on point, the Court disregards them.
*7 The Court is equally unpersuaded by Plaintiffs' authority on the subject. Despite the explicit language of Rule 30(a)(2)(A)(i) referencing “depositions” (Fed. R. Civ. P. 32(a)(2)(A)(i)), Plaintiffs contend that the number that counts toward the ten-deposition limit is the number of witnesses, not the number of depositions. (Pls.' Memo 4.) They offer MacKenzie v. Castro, No. 3:15-CV-0752-D, 2016 U.S. Dist. LEXIS 93575, at *13–14 (N.D. Tex. July 19, 2016), for the proposition that Rule 30(a)(2)(A)(i) “contemplates that parties must seek leave of court only if the number of witnesses to be deposed exceeds ten.” (Pls.' Memo 4.) Plaintiffs read too much into this case. MacKenzie does not identify, let alone distinguish between, corporate and non-corporate witnesses, and does not discuss how the former would count toward the ten-deposition limit.
Although the Court is unaware of authorities directly on point, it is guided by the advisory committee's related instruction that “a deposition under Rule 30(b)(6) should, for purposes of [the ten-deposition limit], be treated as a single deposition even though more than one person may be designated to testify.” Fed. R. Civ. P. 30 advisory committee's note to 1993 amendment. Aetna's contrary position is inconsistent with this concept and would require a party to consider, or as in this case divine, all possible topics of discovery and consolidate them into one notice to avoid the counting of multiple subjects as multiple depositions against the ten-deposition limit. Mandating such a result would exalt form over substance, a practice that does absolutely nothing to advance the policy concerns underlying Rule 1, which seeks “to ensure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. Moreover, this construct would not permit for further depositions of a corporation that changes its litigation position midstream, as Aetna has done here with its Policy Change. For these reasons, the Court concludes that the fourth Aetna deposition counts, together with the prior three, as one Aetna deposition. Thus, it does not exceed the ten-deposition limit and the Deposition Notice is not invalid for Plaintiff's failure to seek leave of court. As such, Aetna is not entitled to protection on this basis.
Aetna next argues that, because Plaintiffs already have taken Aetna's deposition (three times, in fact), Plaintiffs' failure to obtain leave of Court to take the fourth deposition renders the Deposition Notice invalid. (Mot. 4–5; Aetna's Memo. 3–4.) The Court agrees with Aetna. In addition to Aetna's local authorities on the subject—Hubbard, Peck, and Burdick cited supra—this rule is well-established throughout the federal courts. See, e.g., Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 244 F.3d 189, 192 (1st Cir. 2001) (finding invalid a second Rule 30(b)(6) subpoena issued to non-party corporation without leave of the court); Foreclosure Mgmt. Co. v. Asset Mgmt. Holdings, LLC, No. 07-2388-DJW, 2008 U.S. Dist. LEXIS 75489, at *7–8 (D. Kan. Aug. 21, 2008) (holding that leave of court is required before a party may take a second Rule 30(b)(6) deposition of a corporation or other entity); In re Sulfuric Acid Antitrust Litig., MDL Docket No. 1536, No. 03 C 4576, 2005 U.S. Dist. LEXIS 17420, at *15 (N.D. Ill. Aug. 19, 2005) (rejecting defendants' argument that Rule 30(a)(2) limits on successive depositions of the same person do not apply to Rule 30(b)(6) depositions of a corporation and denying defendants' motion to compel second round of Rule 30(b)(6) depositions of corporate plaintiffs); Innomed Labs, LLC v. Alza Corp., 211 F.R.D. 237, 240 (S.D.N.Y. 2002) (denying a second Rule 30(b)(6) deposition of non-party corporation pursuant for failure to seek advance leave of court). The prejudice and harm to Aetna from this invalidity is obvious—without protection, it would need to expend valuable resources to prepare for and give the deposition. For these reasons, the Court concludes that Plaintiffs should have sought leave of Court before issuing the Deposition Notice at issue and that its failure to do so renders the deposition notice invalid. As such, Aetna is entitled to protection on this basis.
*8 Although the Court finds that Aetna is entitled to protection because Plaintiffs did not seek leave to take the fourth Aetna deposition, Rule 30(a)(2) requires a court to grant leave for a successive deposition “to the extent consistent with Rule 26(b)(1) and (2).” Fed. R. Civ. P. 30(a)(2). Just as the Court liberally construes Aetna's opposition to the Motion as a request for protective order, it now construes the Motion as a request for such leave—fair is fair.
Rule 26(b)(1) provides that 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1).
Rule 26(b)(2) provides that a court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).
Plaintiffs seek a fourth deposition of Aetna in order to explore Aetna's practices under the New Policy. (See generally Mot.) Aetna contends that the Plaintiffs are not entitled to a fourth deposition because the information sought through Topics 1(3) and 1(5) is neither relevant nor proportional to the needs of the case, in violation of Rules 26(b)(1) and (2). (Mot. 4–5, 11–14; Aetna's Memo 5–7.) It advances five objections in support of this contention, which the Court addresses in turn.[4]
First, Aetna contends that Topic 1(3) violates the relevance requirement of Rule 26(b)(1) as it is “untethered to Plaintiffs' theories of ERISA liability.” (Mot. 12.) The Court agrees in part. As detailed above, the Hendricks Class is comprised of persons who are “covered under Aetna Plans, governed by ERISA, self-funded or fully insured.” (Hendricks Cert. Order 17.) Thus, to the extent Topic 1(3) includes information about denials for persons who are not covered by ERISA plans, Topic 1(3) is overbroad and the information it seeks is not relevant to the claims or defenses in this case. But there is no need to throw out the baby with the bathwater as this overbreadth easily can be cured by limiting Topic 1(3) to the Hendricks Class—persons who have an ERISA plan. On this basis, the Court SUSTAINS Aetna's relevance objection in part and limits the discovery accordingly. In light of this limitation, this consideration weighs in favor of granting leave for the fourth Aetna deposition.
*9 Second, Aetna contends that information regarding the grounds for its denial of L-ADR claims after the Policy Change also violates the relevance requirement of Rule 26(b)(1) because it “cannot inform the expert-dependent issue of whether Aetna's current coverage criteria have mooted all remaining claims for prospective relief” regarding the application of appropriate and valid criteria for denials. (Aetna Memo 6.) But that argument misses the mark entirely. Plaintiffs do not seek to depose Aetna about its legal conclusions; rather, they seek the facts underlying those denials which, in turn, will inform the expert debate about the appropriateness and validity of the denials. And, to the extent Plaintiffs' wander into the prohibited territory of legal conclusions during the deposition, Aetna's counsel is free to object. See Luna v. Cnty. of Riverside, Case No. 5:21-cv-00467-JGB-SP, 2022 U.S. Dist. LEXIS 201601, at *7 (C.D. Cal. Nov. 4, 2022) (“Rule 30(b)(6) witnesses are not required to provide expert testimony, but ‘must testify about information known or reasonably available to the organization.’ ”) (quoting Fed. R. Civ. P. 30(b)(6)). On this basis, the Court OVERRULES Aetna's relevance objection. Accordingly, this consideration weighs in favor of granting leave for the fourth Aetna deposition.
Third, Aetna contends that, because this case is “limited only to denials as ‘experimental and investigational’ ... rather than denials for which Aetna involved ‘specific criteria’ to deny coverage,” information regarding denials on any other basis violates the relevance requirement of Rule 26(b)(1). (Mot. 7.) But this ignores Plaintiffs' claim for prospective injunctive relief—“requiring Aetna to reform its claims adjudication process so as to adjudicate future claims without the erroneous ‘experimental and investigational’ denial basis and do so under appropriate and valid medical criteria.” (TAC 17.) Aetna argues that “[t]estimony identifying ‘the grounds ... upon which Aetna denied each L-ADR claim’ is not relevant to any assessment of whether those grounds are ‘appropriate and valid.’ ” (Mot. 13.) The Court disagrees. It is difficult to grasp how an expert, and ultimately a jury, could evaluate Plaintiffs' claim that the bases for Aetna's post-Policy Change denials are not appropriate and valid without knowing what those bases are to begin with. Thus, these injunctive relief claims necessarily require identification of the criteria that actually are being applied to deny claims in the post-Policy Change period. If Aetna continues to deny L-ADR claims on the ground that the procedure is “experimental and investigational,” this would inform the injunctive relief sought by Plaintiffs. If, on the other hand, Aetna is using other bases for L-ADR denial, the experts will debate whether those bases are “appropriate and valid,” which in turn also would inform the injunctive relief sought by Plaintiffs. The Court is hard-pressed to imagine more relevant testimony to address Plaintiffs' injunctive relief claim than that sought through Topic 1(3). And, to the extent Aetna contends that its Policy Change moots the injunctive relief claims altogether (Mot. 13, Aetna's Memo 6), that ship sailed into open waters long ago. In his August 2023 Decertification Denial, District Judge Carney addressed this question head on and adjudicated it to the contrary, stating unequivocally that “Aetna's revision of its policy does not moot Plaintiffs' request for an injunction,” and explaining that “[n]othing prevents Aetna from returning to its old ways, so the injunction is still viable notwithstanding Aetna's change of heart.” (Decert. Denial 15.) Moreover, Aetna's contention that its grounds for denial are not relevant here is belied by its own discovery into this very topic. (See generally Pls.' Ex. 3 (Aetna's interrogatories inquiring as to the appropriateness and validity of its post-Policy Change criteria and what changes would be necessary for the policy to state appropriate and valid medical criteria).) On this basis, the Court OVERRULES Aetna's relevance objection. Accordingly, this consideration weighs in favor of granting leave for the fourth Aetna deposition.
*10 Fourth, Aetna argues that the discovery sought by Topic 1(3) violates Rule 26(b)(1) because it “is not proportional to the needs of the case and would impose a burden on Aetna that outweighs its likely benefit.” (Aetna's Memo 6.) Aetna explains that its data shows at least 145 post-Policy Change L-ADR procedure denials, apparently including non-ERISA denials, and notes that “[i]nvestigating each claim would involve reviewing the produced claim data, pulling voluminous reports from Aetna's internal systems on each claim, reviewing those reports, and potentially speaking to each medical director who made each coverage decision.” (Id. at 6–7 n.3.) But while proportionality is an important concern of Rule 26(b)(1), Aetna does little to inform the question. Indeed, other than advancing unhelpful generalities—couched in terms such as “voluminous reports,” “significant time,” “burdensome preparation,” “volume of new information,” and “extensive medical documentation,” (id.; see also Cohen Decl. ¶ 7)—Aetna fails to quantify the burden it claims. A discussion about the amount of time and expense that this preparation would entail is completely absent from Aetna's briefing. (See generally Mot.; see generally Aetna's Memo.) This is particularly problematic given that some portion of those 145 denied claims (known to Aetna but not disclosed in the Motion) are not at issue because they are non-ERISA claims. But even assuming all 145 denials are relevant here, , the Court is unable to weigh the burden or expense of the proposed discovery against its likely benefit without detailed burden evidence. Fed. R. Civ. P. 26(b)(1). On this basis, the Court OVERRULES Aetna's proportionality and burden objection. Accordingly, this consideration weighs in favor of granting leave for the fourth Aetna deposition.
Fifth, Aetna appears to contend that, because it publicly has disclosed the specific criteria Aetna's medical directors consult in making coverage decisions under the New Policy, a deposition on that topic is not necessary and violates the Rule 26(b)(2)(C) constraints against discovery that can be obtained from some other source. (Aetna's Memo. 5 n.2.) But this presumes that the information Plaintiffs seek to discover—the facts underlying each particular denial in this case—can be obtained through the publicly disclosed criteria. Not so. While the public disclosure provides a list of factors that inform the question whether a procedure is medically necessary versus experimental, investigational, or unproven, it does not provide any facts related to Aetna's specific application of those factors to any particular claim, which is the information Plaintiffs seek. (See generally Aetna's Ex. A.) Plaintiffs are entitled to explore Aetna's application of the published criteria to the medical claims at issue in this case. On this basis, the Court OVERRULES Aetna's Rule 26(b)(2) objection. Accordingly, this consideration weighs in favor of granting leave for the fourth Aetna deposition.
* * *
In sum, the Court has resolved the parties' respective procedural objections by construing Aetna's opposition to the Motion as a request for a protective order and Plaintiffs' Motion as a request for leave to take a fourth Aetna deposition. Analyzing these competing interests, and for the reasons set forth above, the Court GRANTS leave for Plaintiffs to take for a fourth Aetna deposition and GRANTS in part Aetna's request for protection by limiting the Topics 1(3) and 1(5) to ERISA-related denials.
The Court next evaluates whether further protections are warranted pursuant to Aetna's remaining substantive objections.
C. The Fourth Aetna Deposition Shall Proceed with Limitations
Aetna raises three objections related to scope of the deposition under Rule 30(b)(6).[5] The Court addresses each in turn.
1. Topic 1(3) is described with the reasonable particularity required by Rule 30(b)(6).
Aetna contends that Plaintiffs have not described Topic 1(3) with the reasonable particularity required by Rule 30(b)(6). (Mot. 5; Aetna's Memo 7.) They argue that Topic 1(3) is “so vague in the context of this case as to be meaningless.” (Mot. 5.) The Court disagrees.
Rule 30(b)(6) provides that:
[i]n its notice or subpoena, a party may name as the deponent ... a private corporation ... and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.”
*11 Fed. R. Civ. P. 30(b)(6).
“To meet the ‘reasonable particularity’ standard, the 30(b)(6) notice, or related correspondence, must contain sufficient information to put the receiving party on notice of the areas of inquiry that will be explored in the deposition.” Luna, 2022 U.S. Dist. LEXIS 201601, at *6–7 (citing Alexander v. F.B.I., 186 F.R.D. 137, 139 (D.D.C. 1998); Pulliam v. Continental Cas. Co., No. 02-370 (RWR), 2006 U.S. Dist. LEXIS 72302, at *14 (D.D.C. Oct. 4, 2006) (“[A] party must specifically state the subject of the testimony requested under Federal Rule 30(b)(6).”). “If the party seeking testimony fails to meet that burden, the responding party has no obligation to produce a witness.” Luna, 2022 U.S. Dist. LEXIS 201601, at *6 (citations omitted).
The persons designated must testify about information known or reasonably available to the entity. Id. “The corporation has a duty to educate its witnesses so they are prepared to fully answer the questions posed at the deposition.” Bowoto v. Chevron Texaco Corp., No. C 99-02506 SI, 2006 U.S. Dist. LEXIS 36040, at *4 (N.D. Cal. Feb. 7, 2006) (citing In re Vitamins Antitrust Litig., 216 F.R.D. 168, 172 (D.D.C. 2003)). “Though an entity need not make ‘extreme efforts to obtain all information possibly relevant to the’ topics, ‘[t]he deponent must prepare the designee to the extent matters are reasonably available, whether from documents, past employees, or other sources.’ ” Hsingching Hsu v. Puma Biotechnology, Inc., No. 8:15-cv-00865-AG (SHK), 2018 U.S. Dist. LEXIS 103353, at *17 (C.D. Cal. Jun. 20, 2018) (citations omitted).
Here, Topic 1(3) seeks information regarding “the grounds (i.e., the specific criteria) upon which Aetna denied each L-ADR claim.” (Pls.' Ex. 1, at 7.) Nothing could be more clear. If Aetna understands (and agreed to produce a witness for) Topic 1(2), which inquires as to the total number of denials for lack of medical necessity (id.), it makes no sense that it would not understand Topic 1(3), which merely seeks information about denials for reasons other than medical necessity. Indeed, Aetna's counsel revealed at the IDC that he does understand Topic 1(3). When pressed regarding what he did not understand about the words “grounds to deny,” Aetna's counsel responded:
[T]here's a number of conditions that have to be satisfied based on a member's individual critical profile before Aetna will (inaudible)[6] coverage for the surgery. And so there may be multiple bases. There could be other considerations other than for specific criteria listed there [referring to Aetna's published criteria] that might result in the denial of coverage for a surgery like an eligibility issue or a timeliness issue or something (inaudible) have to be with the member's clinical profile.
(IDC Tr. 13:25–14:3; 14:7–15, provided as an attachment to this Order.) Moreover, the fact that Aetna has been able to identify 145 post-Policy Change claim denials (Cohen Decl., ¶ 6) confirms that Aetna understands the meaning of “grounds to deny” in Topic 1(3). Further, it appears that Aetna already has been deposed regarding documents that indicate Aetna's denials, presumably before the Policy Change. (Id. at ¶ 5.) To now claim that the term “grounds to deny” is too vague to require deposition is specious. On this basis, the Court OVERRULES Aetna's particularity objection as to Topic 1(3).
2. Topic 1(5) is not described with the reasonable particularity required by Rule 30(b)(6).
*12 Aetna contends that Plaintiffs have not described Topic 1(5) with the reasonable particularity required by Rule 30(b)(6). (Mot. 5; Aetna's Memo. 7.) They argue that Plaintiffs say almost nothing about the testimony and fail to identify the documents they would like to witness to address. (Mot. 5.) Topic 1(5) seeks testimony about “all documents produced by Aetna that set forth [the] basis (i.e., the specific criteria) for each of Aetna claim denial.” (Pls.' Ex. 1, at 7.)
In light of the authorities regarding the required reasonable particularity detailed above, the Court agrees with Aetna. Plaintiffs seek testimony about documents already produced by Aetna regarding its post-Policy Change denials. Thus, because, by definition, Plaintiffs have those documents, they should be able to identify by specific bates number the documents about which they seek testimony, as they did with Topic 1(4)—“the claims data produced by Aetna on May 6, 2024 bates Aetna_011814–011815”—and Topic 2—“[t]he claims data produced by Aetna ... bates numbered Aetna_011552–)11553.” (Pls.' Ex. 1, at 7–8.)[7] Moreover, although Aetna's documents likely contain some relevant information about Aetna's claim denials, they also likely contain information that is not relevant, such as unrelated medical information. Thus, it is more prudent for Plaintiffs to identify the specific documents and pages in advance of the deposition. To proceed otherwise—leaving the selection of documents to Aetna—opens Aetna to a charge that it did not properly prepare its witness if Plaintiffs disagree with the documents chosen by Aetna for preparation and deposition. On this basis, the Court SUSTAINS Aetna's particularity objection to Topic 1(5). The deposition on Topic 1(5) is permitted only to the extent that Plaintiffs identify by bates number the documents and pages about which deposition testimony will be taken in advance of the deposition and with sufficient (and reasonable) time for witness preparation.
3. Topic 1(3) does not violate the tenets of Rule 30(b)(6).
In addition to its particularity, burden, and proportionality arguments about Topic 1(3), Aetna argues that it is not reasonable to expect a 30(b)(6) witness to retain the information related to the many—some portion of 145—claims that, according to its data, would be the subject of Topic 1(3). (Aetna's Memo. 6.)
The ability of Aetna's witness to retain sufficient information about the 145 (or less) denials to enable him or her to adequately answer Plaintiffs' questions is an important consideration. Proper preparedness for a Rule 30(b)(6) deposition requires the good faith of both parties. See Yellow Rose Prods. v. Pandora Media, LLC, No. 2:22-cv-809-MCS-MAR, 2024 U.S. Dist. LEXIS 67468, at *6 (C.D. Cal. Apr. 12, 2024) (“The ‘effectiveness of [Rule 30(b)(6)] bears heavily upon the parties' reciprocal obligations' to identify topics with particularity and prepare witnesses in good faith.”) (citations omitted). Still, a deposing party may not demand that a corporate designee be prepared to speak with encyclopedic authority. Id. (“[I]t is simply impractical to expect Rule 30(b)(6) witnesses to know the intimate details of everything.”) (citations omitted). Indeed, “depositions under 30(b)(6) are not meant to be traps in which the lack of an encyclopedic memory commits an organization to a disadvantageous position.” Brown v. West Corp., No. 8:11CV284, 2014 U.S. Dist. LEXIS 62476, at *4 (D. Neb. May 6, 2014); see also Hsingching Hsu, 2018 U.S. Dist. LEXIS 103353, at *17 (noting that a 30(b)(6) witness need not be able to pass a “memory test.”) (citation omitted). One federal court in this District explained the issue succinctly:
*13 Courts have repeatedly emphasized the practical constraints on the scope of a 30(b)(6) deposition. While a corporation must make a god faith effort to prepare a 30(b)(6) witness to “fully and unevasively answer questions about the designated subject matter ... that task becomes less realistic and increasingly impossible as the number and breadth of noticed subject areas expand.
United States v. HVI Cat Canyon, Inc., No. CV 11-5097 FMO (SSX), 2016 U.S. Dist. LEXIS 200353, at *21–22 (C.D. Cal. Oct. 26, 2016) (citation omitted).
Nevertheless, this is a bridge that must be crossed at the deposition. Because the Court has overruled Aetna's relevance, proportionality, and burden objections, Aetna must, for its part, prepare a witness to testify to the bases for the 145 (or less) post-Policy Change coverage denials in a good faith manner and as aptly described by Aetna's own counsel at the IDC. (See Section III.C.1., supra.) At the same time, because the law does not require encyclopedic testimony, Plaintiffs must, for their part, take care to properly cabin the deposition. Pursuant to their joint obligation to resolve discovery disputes, the parties are encouraged to meet and confer to identify documents that could provide the information sought by Plaintiffs in advance of the deposition and, if not already done, Aetna is encouraged to produce them to the extent they are responsive to a document request[8] and not privileged. On this basis, the Court OVERRULES Aetna's Rule 30(b)(6) objection.
4. Aetna has properly preserved its privilege objections.
Plaintiffs argue that the attorney-client privilege and work product doctrine objections asserted in Aetna's Deposition Objections are “conclusory, without factual basis, and unsupported by a privilege log.” (Mot. 10.) Aetna explains that it interposed those objections in order to preserve its ability to instruct the witness to not answer privilege questions at the deposition and that requiring a privilege log in advance of the testimony makes no sense and is not supported by Plaintiffs' authorities. (Id. at 14.) The Court agrees with Aetna and finds Plaintiffs' argument premature. Aetna has preserved its ability to, and will, interpose its privilege objection at the appropriate time of the deposition and a record will be made. Should Plaintiffs determine that the objection is not well-taken, their recourse is to seek to resolve the dispute with Aetna or seek Court intervention. On this basis, the Court SUSTAINS Aetna's privilege objection.
D. Aetna's Fourth Deposition is Limited to 5.5 Hours
Aetna asks the Court to limit any ordered deposition to four hours. (Mot. 5.) Although not addressed in the Motion, Plaintiffs objected to this request at the IDC, noting that, because this is important information and they do not know what the information is going to show and how long it will take to question the witness about it, they would prefer the full seven hours authorized by Rule 30(d)(1). (IDC Tr. 68:16–70:11.) When the Court failed to obtain consensus from the parties at the IDC regarding the duration of the deposition, it resolved the issue by “split[ting] the baby” and suggesting five-and-one-half hours. (Id. at 70:15–19.) The parties have offered no additional argument on the subject. On this basis, the Court sees no reason to stray from its original suggestion—the deposition shall be limited to five-and-one-half hours.
IV. CONCLUSION
*14 For the reasons set forth above, the Court GRANTS the Motion in part and DENIES it in part. The Court ORDERS as follows:
- Aetna's fourth deposition shall go forward on a date agreed upon by the parties consistent with the current case schedule.
- Aetna shall prepare and produce for deposition a witness on Topics 1(1), 1(2), 1(3), 1(4), and 2.
- Aetna shall prepare and produce for deposition a witness on Topic 1(5) only to the extent that Plaintiffs, in advance of the deposition and with sufficient (and reasonable) time for witness preparation, identify by bates number the documents and pages on which testimony will be sought.
- The testimony as to Topics 1, and its subparts, and 2 is limited to claims under ERISA self-funded or fully insured plans.
- Aetna need not serve a privilege log in advance of the deposition.
- The deposition is limited to 5.5 hours.
Attachment: Relevant excerpts of the Transcript of the IDC.
Footnotes
In fact, Aetna also asserts the procedural objection that Plaintiffs are not entitled to any of the relief they seek because they failed to comply with their pre-motion obligation under Local Rule 37-1 to send a letter detailing the issues to be addressed in the Motion. (Mot. 5 n.1.) This argument may have had some cogency before the Court brought the parties together in an informal discovery conference regarding the Motion, described more fully below. (ECF No. 169.) Aetna cannot now claim, after that two-plus hour conference (ECF No. 173), that it does not know Plaintiffs' position on all the issues raised in the Motion. In addition, Aetna filed Aetna's Memo after the IDC and fully addressing Plaintiffs' issues. With that, this procedural objection is mooted.
In 1964, Rule 30(b) addressed protective orders. This rule was moved to Rule 26 in 1970, and now stands as Rule 26(c). See Fed. R. Civ. P. 30 advisory committee's notes to 1970 amendment (“Existing Rule 30(b) on protective orders has been transferred to Rule 26(c)”).
Plaintiffs argue that even if they are not entitled to take this deposition in the Hendricks Action, they are entitled to take it in the Howard Action, where they have taken only one deposition. (Pls.' Memo 5.) Aetna disagrees and contends that the parties have consolidated the two actions for all purposes, including discovery (Hendricks Action, ECF No. 157) and have agreed to share discovery between the cases (Howard Action, ECF No. 44). The Court does not read these agreements to reduce the number of depositions available in the Howard Action. But this is neither here nor there because, as detailed in this Order, the Court finds that Plaintiffs may take the deposition in the Hendricks Action.
Plaintiffs ask the Court to disregard all of Aetna's objections as “boilerplate” and impermissible general objections. (Mot. 3, 14.) Aetna responds that Plaintiffs' argument is baseless in that its objections are detailed, thorough, and tailored to each part of each topic. (Id. at 5.) Moreover, Aetna contends that, rather than “general objections,” it asserted “objections applicable to all topics,” which address the procedural deficiencies of the deposition notice. (Id. at 15–16.) The Court agrees with Aetna. (See id. at 6–8 (detailing objections as to Topic No. 1); id. at 15–16 (detailing procedural objections applicable to all topics)). On this basis, the Court considers all of Aetna's objections in the relevant sections of this Order.
In Section II.B. of this Order, the Court identified five substantive objections interposed by Aetna. However, Substantive Objections 3 (relevance and overbreadth) and 4 (burden and proportionality) are addressed in Section III.B. of the Order and need not be repeated here. (See Sections II.B., III.B., supra.)
The quality of the Court's recording of this IDC admittedly leaves much to be desired, resulting in multiple inaudible phrases, as noted in the transcript. That said, the selected excerpts are sufficiently understandable for purposes of this Motion despite the inaudible words.
To the extent Plaintiffs could claim that Aetna's document production is incomplete or otherwise deficient, that is a separate discovery dispute that cannot be resolved here.
Plaintiffs' Request for Production of Documents (“RFP”) No. 78, served May 22, 2023, sought “updated data” concerning all of Aetna's L-ADR denials (Pls.' Exs. 8, 9), and RFP No. 79, served October 6, 2023, sought the denial letters substantiating “each pre-service L-ADR claim that Aetna denied” (Pls.' Ex. 9.) In this regard, the Court reminds Aetna that “[a] party who ... has responded to ... [a] request for production ... must supplement or correct its ... response ... in a timely manner if the party learns that in some material respect the ... response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing ....” Fed. R. Civ. P. 26(e)(1)(A).