United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
parties have a preliminary dispute involving the
applicability of the “Mandatory Initial Discovery
Pilot” (“MIDP”). As relevant here, the MIDP
“applies to all civil cases filed on or after May 1,
2017, other than cases listed in Rule 26(a)(1)(B).” The
referenced portion of Rule 26 lists the
“proceedings” that are exempt from the
requirement to provide initial disclosures. The first item on
that list is “an action for review on an administrative
record.” Plaintiff believes the present suit does not
qualify as one “for review on an administrative
record” while Defendants believe it does. The history
of the relevant portion of Rule 26, together with the manner
in which most cases involving ERISA claims for benefits are
litigated, establish the MIDP applies to this case.
2000, Rule 26 was “amended to establish a nationally
uniform practice” regarding initial disclosures.
Advisory Committee Notes, 2000 Amendment. As part of that
amendment, language was added to Rule 26 to exclude certain
types of proceedings from the initial disclosure requirement.
The list of excluded proceedings was meant to cover those
“cases in which there is likely to be little or no
discovery, or in which initial disclosure appears unlikely to
contribute to the effective development of the case.”
Id. As for the specific exclusion of cases involving
“review on an administrative record, ” it was
“intended to reach a proceeding that is framed as an
‘appeal' based solely on an administrative
record.” Id. This exclusion was not meant to
“apply to a proceeding in a form that commonly permits
admission of new evidence to supplement the record.”
light of the Advisory Committee Notes, some examples of what
likely qualify as actions “for review on . . .
administrative record[s]” are cases brought under the
Administrative Procedures Act or cases seeking review of
decisions by the Social Security Administration. See See
Sw. Ctr. for Biological Diversity v. U.S. Forest Serv.,
100 F.3d 1443, 1450 (9th Cir. 1996) (“Judicial review
of an agency decision typically focuses on the administrative
record in existence at the time of the decision and does not
encompass any part of the record that is made initially in
the reviewing court.”); 42 U.S.C. § 405(g) (review
of decision by the Social Security Administration is limited
to “the pleadings and a transcript of the
record”). In those cases, discovery is either rare or
prohibited. At first glance, cases involving ERISA claims for
benefits appear similar.
general rule when resolving an ERISA claim for benefits is
that a “court may review only the administrative record
when considering whether the plan administrator abused its
discretion.” Abatie v. Alta Health & Life Ins.
Co., 458 F.3d 955, 970 (9th Cir. 2006). There are some
limited exceptions to this rule. See, e.g., Pac.
Shores Hosp. v. United Behavioral Health, 764 F.3d 1030,
1041 (9th Cir. 2014) (“[W]hen procedural irregularities
are apparent in an administrator's determination, we may
consider extrinsic evidence to determine the effects of the
irregularity.”). But, in general, a case involving an
ERISA claim for benefits can be analogized to a “an
action for review on an administrative record” in that
almost all ERISA claims for benefits involve an
administrative record and a court's review can be limited
to that record in some circumstances. Fed.R.Civ.P. 26(b).
Current law, however, requires courts look beyond the
administrative record in most cases.
Ninth Circuit and the Supreme Court have instructed district
courts handling ERISA claims for benefits to review a variety
of circumstances when applying the appropriate standard of
review. See, e.g., Abatie v. Alta Health &
Life Ins. Co., 458 F.3d 955, 965 (9th Cir. 2006)
(holding “conflict of interest is relevant to how a
court conducts abuse of discretion review”); Metro.
Life Ins. Co. v. Glenn, 554 U.S. 105, 116-17 (2008)
(noting “conflicts are but one factor among many that a
reviewing judge must take into account”). Given those
instructions, district courts handling ERISA claims for
benefits routinely grant at least a limited amount of
discovery. See, e.g., Carrillo v. Life Ins. Co.
of N. Am., No. CV098277DMGJEMX, 2010 WL 11597439, at *1
(C.D. Cal. Aug. 30, 2010) (noting “courts in this
Circuit routinely have permitted limited conflict of interest
discovery as to the nature, extent, and effect on the
decisionmaking process of any conflict of interest”).
Because the Rule 26 exclusion does not “apply to a
proceeding in a form that commonly permits admission of new
evidence to supplement the record, ” it is a poor fit
for cases involving ERISA claims for benefits. Advisory
Committee Notes, 2000 Amendment.
the exclusion in Rule 26 does not apply to cases involving
ERISA claims for benefits, the MIDP applies to the present
case. That conclusion, however, raises a practical concern
because the MIDP goes beyond what is required by Rule 26.
Normally, Rule 26 requires a party's initial disclosure
include information that the party plans to use to support
its own claims or defenses. Fed.R.Civ.P. 26(a)(1)(A). Because
a disclosing party knows how it plans to proceed in the
litigation, it is straightforward to disclose the information
it expects to use. The MIDP, however, imposes much broader
disclosure requirements. Under the MIDP, a party must
disclose information “relevant to any party's
claims or defenses.” In other words, the MIDP requires
a party anticipate what evidence would be helpful to the
opposing side and then disclose that evidence. That can be
difficult when, as here, a defendant is uncertain what
information a plaintiff believes would be helpful.
Plaintiff has alleged Defendants were operating under a
conflict of interest and believes the MIDP requires
Defendants disclose all information that would be helpful in
establishing the impact that conflict had in the handling of
Plaintiff's claim. Plaintiff has not, however, identified
the specific nature of the conflict she believes exists.
Absent specific guidance from Plaintiff regarding the nature
of the conflict she has in mind, Defendants have no way of
knowing what information they should disclose.
correct result, therefore, is a partial victory for each
side. The MIDP applies to the present case but it is
unrealistic to expect Defendants to identify all the evidence
Plaintiff might believe appropriate for assessing the
conflict of interest. Now that the Court has already held the
Scheduling Conference, the simplest path is for Plaintiff to
seek the conflict of interest information she wishes through
the normal discovery processes. That will prevent Defendants from
having to guess what information should be produced.
IT IS ORDERED Plaintiff should seek the
information she believes relevant to her claims through the
normal discovery processes.
 Courts across the country have reached
different conclusions on this issue. Compare Lee v. Sun
Life Assur. Co. Of Canada, 2010 WL 2231943, *5 (D. Or.
April 1, 2010) (“[I]n an ERISA case, the court only
reviews the administrative record such that initial
disclosures are not necessary.”) and Grady v.
Hartford Life & Accident Ins. Co., 2009 WL 700875,
*1 (D. Me. Mar. 12, 2009) (“Discovery is the exception,
rather than the rule, in an appeal of a plan
administrator's denial of ERISA benefits.”)
with Hamma v. Intel Corp., No. 2:07-CV-01795GEBCMK,
2008 WL 648482, at *3 (E.D. Cal. Mar. 4, 2008) (requiring
initial disclosures because the parties “agreed that
discovery outside the administrative record” was
appropriate) and Golden v. Sun Life Fin., Inc., No.
2:08-CV-070-WKW, 2008 WL 2782736, at *3 (M.D. Ala. July 15,
2008) (requiring initial disclosures because the case
“may include evidence beyond the administrative
record”). The Court has not located any decision,
however, that has cited the relevant history of Rule 26,
recognized that discovery routinely occurs, but then
concluded the exception in Rule 26 applies to cases involving
an ERISA claim for benefits.
 This Order focuses on Plaintiff's
claim for benefits but Plaintiff has also asserted a claim
for breach of fiduciary duty. The applicability of the MIDP
to that claim is more straightforward. When a plaintiff
asserts a breach of fiduciary duty claim, there often will
not be an underlying administrative record. See Graphic
Commc'ns Union, Dist. Council No. 2, AFL-CIO v.
GCIU-Employer Ret. Ben. Plan, 917 F.2d 1184, 1187 (9th
Cir. 1990) (plaintiff need not administratively exhaust some
claims for breach of fiduciary duty). In that situation,
there would be no basis for the Rule 26 exclusion to apply.
In the present case, it is unclear whether the breach of
fiduciary duty claim is a distinct claim or if it is simply a
disguised claim for benefits. See Diaz v. United Agr.
Employee Welfare Ben. Plan & Tr., 50 F.3d 1478, 1484
(9th Cir. 1995). In light of the uncertainty regarding the
nature of the breach of fiduciary duty claim, it would be
difficult for ...