As federal court litigators know, Initial Disclosures are the first opportunity for each side to see the opponent’s evidence. The disclosures made are those documents required by Rule 26a (1) of the Federal Rules of Civil Procedure.  Further discovery should build on that, allowing the discovery to target specifically the information relevant to the case.  

In ERISA cases, however, some defendants object to providing disclosures and refuse any discovery whatsoever.  It is contended that the court’s review is limited to “administrative record.”  Frankly, I don’t like that term “administrative record” as there is usually little that is “administrative” about an ERISA claim decision.  Administrative proceedings are open reviews guided by policy regulations that are freely disclosed.  There is opportunity to respond to evidence before a final decision is made.  Does the typical ERISA decision maker, such as a long term disability carrier, want the review of the claim record to be like an “administrative proceeding?” Maybe the deferential cloak is desired, but the openness?    

If it is not very “administrative,” then in litigation it is not fair if only the “administrative record” is all that the court may consider in making its determination.  This argument was advanced again in a recent case in the 5th Circuit known as Bruce v. Anthem Insurance Companies Inc. 2015 WL 4127337 (2015).  The decision is soon to be included in the Federal Rules Decisions Reporter.  The court correctly found that while “full throttle” open discovery may not be common in ERISA, a “claimant may obtain discovery relating to:

  1. The completeness of the administrative records;
  1. Whether the plan administrator complied with ERISA’s procedure regulations; and,
  1. The existence and extent of a conflict of interest created by a plan administrator’s dual role in making benefit determinations and funding the plan.”

The 5th Circuit has also previously noted that it could “envision situations where evidence needed for resolving these disputes may not be contained in the administrative record.”  Crosby v. Louisiana Health Services Indemnity Company, 647 F. 3d 258, 262 (5th Circuit 2011).  The bottom line here is that the defendant was ordered to provide the Initial Disclosures and the court underscored for the defendant’s future consideration that discovery well would be allowed, certainly within the confines set out by the 5th Circuit in Crosby.  Call your local ERISA lawyer in Tuscaloosa, The Martin Law Group, for more information.