“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). This standard applies to “[a]ll civil discovery, whether sought from parties or nonparties.” Va. Dep't of Corrections v. Jordan, 921 F.3d 180, 188 (4th Cir. 2019). Under Rule 45, a party may issue subpoenas to third parties for the production of documents. FED. R. CIV. P. 45(a)(1)(D). Because third parties are “strangers” to the litigation, Rule 45 imposes “a more demanding variant of the proportionality analysis ... when determining whether, under Rule 45, a subpoena issued to a nonparty ‘subjects a person to undue burden’ and must be quashed or modified.” Jordan, 921 F.3d at 189. “[T]he ultimate question [under Rule 26 or Rule 45] is whether the benefits of discovery to the requesting party outweigh the burdens on the recipient.” Id. When a party to the suit seeks to prevent disclosure of discovery, it must move the court to issue a protective order. FED. R. CIV. P. 26(c).

In actions arising under ERISA, “discovery is generally not available ... where the district court reviews the administrator's decision for abuse of discretion.” See Stanley v. Metro. Life Ins. Co., 312 F. Supp. 2d 786, 789 (E.D. Va. 2004) (citing Sheppard & Enoch Pratt Hosp., Inc. v. Travelers Ins. Co., 32 F.3d 120, 125 (4th Cir. 1994)). However, discovery may be available when the Court reviews the administrator's decision de novo or a party seeks equitable relief under § 1132(a)(3). See Jenkins v. Int'l Ass'n of Bridge, Case No. 2:14-cv-526, 2015 WL 1291883, at *10 (allowing discovery when the Court assesses the Booth factors (citing Booth v. Wal-Mart Stores, Inc. Assoc. Health and Welfare Plan, 201 F.3d 335, 342 (4th Cir. 2000))); see also Schaffer v. Westinghouse Savannah River Co., 135 F. App'x 568, 570 (4th Cir. 2005) (approving of limited discovery in ERISA suit under § 1132(a)(3)).

While Plaintiff maintains general objections to Defendant's allegedly overbroad subpoena, the issue before the Court is whether Defendant is entitled to four (4) documents. (Mem. in Supp. at 2.) Plaintiff argues that the documents would reveal sensitive and private information regarding Plaintiff's net worth and financial circumstances, including those of his wife—who is not a party to this suit. (Reply at 4, ECF No. 59.) Because the suit arises under ERISA, Plaintiff also contends discovery beyond the administrative record is irrelevant and inappropriate. (Id. at 2.)

Plaintiff also generally seeks to preclude discovery of documents VI. through IX.[1] “to the extent they include (i) information pertaining to Mr. Kelly's net worth, (ii) information beyond the time period of November 2020; (iii) information about tax or financial advice unrelated to the November 2020 transaction; and (iv) information regarding Mrs. Kelly.” (Mem. in Supp. at 5–6.)

*3 Defendant counters that the documents in question are directly relevant to Plaintiff's damages. (Resp. in Opp'n at 6, ECF No. 55.) Because Plaintiff seeks “a surcharge in the amount of the losses [Plaintiff] suffered by being unable to access his DPS Plan funds at the time he requested they be available to him” (Compl. ¶ 65), Defendant argues that documents pertaining to that plan of investment are directly relevant to those potential damages. (Resp. in Opp'n at 6–7.) Defendant also alleges the documents are directly relevant to Defendant's affirmative defense that Plaintiff failed to mitigate his damages. (Id. at 7.)

ERISA provides for several forms of relief. A participant or beneficiary may “recover the benefits due to him under the terms of his plan, enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan,” as Plaintiff does in Count I. 29 U.S.C. § 1132(a)(1)(B); (see Compl. ¶ 55). A participant or beneficiary may also bring an action “(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provision of this subchapter or the terms of the plan,” as Plaintiff does in Count III. Id. § 1132(a)(3) (emphasis added); (see Compl. ¶ 65). The Fourth Circuit recently held that “other appropriate equitable relief” under § 1132(a)(3) can include monetary relief “only if such relief was ‘typically available in equity.’ ” This includes unjust enrichment, or other equitable claims “if a court of equity could have awarded it in a concurrent-jurisdiction case.” Rose v. PSA Airlines, Inc., 80 F.3d 488, 500 (4th Cir. 2023). “Although ‘a plaintiff who prevails in a claim for benefits under [s]ubsection (a)(1)(B) may not also obtain other relief under [s]ubsection (a)(3)... Federal Rule of Civil Procedure 8(a)(3) specifically permits pleading “in the alternative,” so nothing ... prevent[s] plaintiff[s] from suing under both provisions.’ ” Paul v. Blue Cross Blue Shield of N.C., No. 5:23-cv-354, 2024 WL 1286208, at *8 (E.D.N.C. Mar. 26, 2024) (citing Hayes v. Prudential Ins. Co. of Am., 60 F.4th 848, 855 (4th Cir. 2023) (emphasis in original)).

While discovery is not available generally under ERISA actions when “the district court reviews the administrator's decision for abuse of discretion,” Plaintiff requests relief beyond a review of the administrator's decision. Stanley, 312 F. Supp. 2d at 789. Plaintiff seeks review of the administrator's decision on Count I (Compl. ¶¶ 49–55), as well as, in the alternative, “other equitable relief” on Count III. (Compl. ¶¶ 61–65); see Paul, 2024 WL 1286208, at * 8. Consequently, for the Court to assess whether Plaintiff is entitled to equitable relief, the parties must be able to present evidence on whether equitable relief is appropriate, and if so, what form of equitable relief. And to do so, the parties must have access to records and evidence outside of the administrative record. Thus, Defendant is entitled to relevant documents and information pertaining to Count III.

To obtain the surcharge Plaintiff requests, he will have to prove that he actually intended to invest the amount he claims he was going to invest. Conversely, Defendant will have a similar opportunity to dispute that these were Plaintiff's actual intentions. If Defendant can show Plaintiff did not actually intend to invest his money in the way Plaintiff claims, equitable relief would be inappropriate. Because financial planning documents may be relevant to Plaintiff's equitable relief, the Court now turns to each document in turn to conclude whether they are relevant.

*4 Document VI. and document VII. contain information related to financial and tax advice prepared on November 16, 2020 and November 20, 2020, respectively. (Canal Capital Production at 1.) Plaintiff sought to invest his money in early November 2020. (Compl. ¶¶ 12–13.) Plaintiff's main objection to these documents is that they may contain irrelevant information, including information about Plaintiff's wife.[2] (Reply at 2.) While Plaintiff's wife is not a party to this suit, and her net worth or other financial circumstances are indeed not relevant, Plaintiff's financial situation during November 2020 is relevant. And the presence of information about Plaintiff's wife does not prevent discovery of the documents. See In re Marriot Int'l Customer Data Sec. Litig., Case No. 19-md-2879, 2020 WL 5525043, at *3 (D. Md. Sept. 14, 2020) (“[D]ocuments do not exist in a perfect world of relevance and irrelevance. The same document can contain relevant and irrelevant information .... But, the worse [sic] that can happen, if there is no redaction, is the opposing party and counsel will see irrelevant information.”). Accordingly, documents VI. and VII. may contain information probative as to Plaintiff's intent to invest and are therefore relevant as to Count III and discoverable.

Document VIII. contains information related to market calculations between November 3, 2020 and November 10, 2020. (Canal Capital Production at 1.) The document “appears to be a calculation by Canal Capital of potential damages using the SPY ETF fund and perhaps other market metrics.” (Resp. at 6.) In other words, the document is likely the very basis for Plaintiff's claim for equitable relief. Plaintiff has done little to refute this conclusion. Accordingly, the Court concludes that the document is relevant and discoverable.

Document IX. contains information that appears potentially related to Plaintiff's administrative requests for benefits in August 2022. In August 2022, Plaintiff sought information related to his benefits from Defendant, which Defendant did not provide. (Compl. ¶¶ 42, 70.) This failure to provide information concerning his benefits plan is the basis for Count IV. (Id.) Thus, while the document may not be pertinent in the Court's review of the administrator's decision under ERISA, it may be relevant to other equitable relief or Count IV. Again, Plaintiff has done little to discredit this conclusion. Accordingly, the Court concludes that the document is relevant and discoverable.

Canal Capital has already produced the documents to Defendant, and Plaintiff does not argue that production is disproportional or too burdensome. Consequently, documents VI. through IX. are discoverable.

For the foregoing reasons, Plaintiff's Motion (ECF No. 48) is DENIED.

The Clerk is DIRECTED to send a copy of this Memorandum Order to all counsel of record.

It is so ORDERED.