Chacko v. AT&T Umbrella Benefit Plan No. 3 ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUBY CHACKO, No. 2:19-cv-1837 JAM DB 12 Plaintiff, 13 v. ORDER 14 AT&T UMBRELLA BENEFIT PLAN NO. 3, 15 16 Defendant. 17 18 On November 6, 2020, this matter came before the undersigned pursuant to Local Rule 19 302(c)(1) for hearing of plaintiff’s motion to compel and defendant’s motion for a protective 20 order. (ECF Nos. 49 & 52.) Attorney Michelle Roberts appeared via Zoom on behalf of plaintiff 21 and attorney Stacey Campbell appeared via Zoom on behalf of defendant. Oral argument was 22 heard and the motions were taken under submission. 23 The crux of the parties’ dispute concerns whether defendant has the contractual authority 24 to demand its claims administrator, Sedgwick, and its vendor, NMR, produce responsive 25 documents. Plaintiff argues that “[t]he current iteration of the Contract between AT&T and 26 Sedgwick contain . . . provisions which . . . demonstrate that Defendant does continue to control 27 documents and information requested by Plaintiff.” (JS (ECF No. 50) at 16.) In support of this 28 argument plaintiff cites to exhibit 3 of the declaration submitted by plaintiff’s counsel. (Id.) 1 At the November 6, 2020 hearing, plaintiff’s counsel asserted that exhibit 3 was a 2 complete copy of the contract at issue in this action between defendant and Sedgwick. However, 3 the contract’s pages appear to be numbered at the bottom of each page. The first page of the 4 contract provided is numbered “5.” (Roberts Decl. (ECF No. 50-1) at 31.) The following page is 5 numbered “10.” (Id. at 32.) The next page is numbered “25.” (Id. at 32.) The exhibit continues 6 in this fashion for many pages before reaching a page numbered “38.” (Id. at 42.) The next page 7 bears a page numbered “53.” (Id. at 43.) 8 Sections of the contract are also numbered and many sections appear to be missing. For 9 example, the contract page numbered 25 ends with section “3.17,” while the following page of 10 the exhibit begins with section “3.26.” (Id. at 33-34.) And most pages of the exhibit have 11 information that has been redacted. In this regard, it does not appear to the undersigned that a 12 complete copy of the contract at issue has been submitted. 13 Defendant argues that the contract explicitly provides that neither defendant nor Sedgwick 14 “has any obligation to the other Party with respect to information which… is lawfully received 15 from a third party… [or] is independently developed by the receiving Party or a third party[.]” 16 (JS (ECF No. 50) at 20.) Defendant cites to defendant’s exhibit 8, specifically “§ 3.13(c).” (Id.) 17 Review of defendant’s exhibit 8 finds that defendant has also only provided a portion of the 18 contract at issue. And that while defendant has provided the beginning of § 3.13, the document 19 provided does not contain § 3.13(c). (Def.’s Ex. 8 (ECF No. 50-2) at 8-9.) 20 Nonetheless, plaintiff has submitted a portion of the contract that explicitly provides that 21 Sedgwick “shall maintain complete and accurate records relating to the Work and the 22 performance” of the contract and that Sedgwick “shall provide to” defendant “all . . . records, 23 including financial records relating to the invoices, and payment obligations and supporting 24 documentation[.]” (Id. at 36.) 25 Moreover, this is plaintiff’s third motion to compel this discovery, the third time 26 defendant has opposed production of this discovery, but the first time defendant has asserted that 27 the responsive documents at issue are not under defendant’s control. On August 11, 2020, the 28 undersigned granted plaintiff’s second motion to compel and ordered defendant to produce 1 responsive documents. (ECF No. 44.) Thereafter, defense counsel “went back to Sedgwick and 2 NMR to request information responsive to Plaintiff’s requests” but was informed, apparently for 3 the first time, that “neither NMR nor Sedgwick would produce any additional documents or 4 information—to the extent they were in possession of any—unless subpoenaed by a court to do 5 so.” (JS (ECF No. 50) at 19.) 6 Despite the contractual language quoted above, defendant now takes the position that it 7 has no authority to required Sedgwick to provide any documents. The undersigned finds defense 8 counsel’s explanation for the failure to previously assert this argument, found in the Joint 9 Statement and as articulated at the November 6, 2020 hearing, unpersuasive. “[T]he party 10 opposing discovery has the burden of showing that discovery should not be allowed, and also has 11 the burden of clarifying, explaining and supporting its objections with competent evidence.” 12 Louisiana Pacific Corp. v. Money Market 1 Institutional Inv. Dealer, 285 F.R.D. 481, 485 (N.D. 13 Cal. 2012). 14 Here, in opposing plaintiff’s second motion to compel defendant failed to satisfy its 15 burden. Defendant now attempts to assert a new argument in an effort to avoid producing 16 responsive documents yet again. But defendant has again failed to satisfy its burden, or articulate 17 why it should be given yet another bite at the apple to avoid producing discovery the undersigned 18 has already ordered produced. Plaintiff’s motion to compel, therefore, will be granted with 19 respect to any responsive documents in the possession of Sedgwick. 20 However, to the extent plaintiff also seeks documents from NMR, plaintiff has not 21 produced any persuasive argument or evidence establishing a contractual relationship between 22 defendant and NMR as it relates to the production of the discovery at issue. Moreover, plaintiff’s 23 request for terminating sanctions will be denied as unjustified at this time. See Dreith v. Nu 24 Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (“dismissal is a harsh penalty imposed only in 25 extreme circumstances”). 26 //// 27 //// 28 //// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s October 30, 2020 motion to compel discovery (ECF No. 49) is granted as 3 || articulated above; 4 2. Defendant shall produce responsive discovery within twenty-one days; and 5 3. Defendant’s October 30, 2020 motion for a protective order (ECF No. 52) is denied. 6 | Dated: November 9, 2020 7 8 9 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 | DLB:6 74 DB\orders\orders.civil\chacko1837.oah.110620 24 25 26 27 28