Insured’s Motion to Compel Discovery Is Denied Where He Violated Two Local Rules

October 31, 2012 | Insurance Coverage

The efforts of policyholders involved in coverage litigation with insurance companies to discover insurer files often leads to extensive and complex litigation. In a recent case, however, a plaintiff seeking disability benefits saw his discovery motion doomed because of something rather basic:  His failure to comply with two local court rules.  

Thomas Neilson filed a claim for long term disability benefits under The Williams Companies, Inc. Long Term Disability Plan. After his claim was denied, his counsel asked the plan for “[a]ny correspondence with the Plan fiduciary, its counsel, or your own counsel.” Neilson later sued the plan and Unum Life Insurance Company of America and sent the defendants a request for similar correspondence.  On May 25, 2012, the defendants provided some of the materials but told the plaintiff that three pages were privileged and did “not relate to matters of plan administration; rather, they address non-fiduciary matters, specifically legal advice.” The plaintiff’s counsel replied on May 30, 2012, stating, “I have carefully reviewed your 5/25/12 letter and will agree to the information to be produced.”

On July 27, 2012, the defendants filed the full administrative record, including the privilege log listing the three allegedly privileged pages, with the court. Four days later, the plaintiff’s counsel sent an email to the defendants’ counsel stating that he had become aware of the assertion of privilege over the three pages “as of yesterday.” The defendants’ counsel responded by email on August 1, 2012, noting the assertion of privilege in the May 25, 2012, letter. The next day, the plaintiff moved to compel production of the documents listed in the defendants’ privilege log.

The Decision

The court denied the plaintiff’s motion, finding it violated two local court rules. First, the court found, he violated Local Rule 104.7 because he had not demonstrated that he had engaged in the required conference of counsel to attempt to resolve the discovery dispute. Second, it ruled, his motion to compel was time-barred according to Local Rule 104.8(a). Using the May 25 date, the court explained, the plaintiff’s motion to compel had to have been filed on or before June 24, 2012. Because it was filed on August 2, 2012, it was time-barred, the court concluded.

The Rivkin Rule

The court’s decision, in Neilson v. The Unum Life Ins. Co., No.: CCB-11-3317 (D. Md. Sept. 10, 2012), is a reminder to insurers and their counsel that they should make certain that insureds are in compliance with all court rules – including local rules – when seeking pre-trial discovery. Their failure to do so may doom their discovery requests.

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