WATERS v. AIG CLAIMS INC PA (2020)

ORDER

This matter is before the court on several pending discovery motions. This action, filed in 2017, was initially assigned to United States Magistrate Judge Gray M. Borden as presiding judge, then reassigned to United States District Judge William Keith Watkins, with Judge Borden remaining on the case as the referral judge. Doc. 28. Judge Watkins referred the case to Judge Borden for all further pretrial proceedings. Doc. 30. On June 14, 2018, Judge Watkins vacated his order referring all pretrial matters to Judge Borden and took “direct control over discovery,” stating that “[r]eference of discovery motions to the Magistrate Judge is withdrawn until further order of the court.” Doc. 79.

On August 8, 2018, the case was reassigned to Chief United States District Judge Emily C. Marks. Doc. 89. The parties filed several discovery motions (Docs. 92, 93, 112, 113). On June 26, 2019, the case was reassigned from Judge Borden to the undersigned as referral judge. On December 17, 2019, the case was reassigned from Judge Marks to United States District Judge R. Austin Huffaker, Jr., as presiding judge. Doc. 117. On January 16, 2019, Judge Huffaker referred the pending discovery motions (Docs. 92, 93, 112, 113) to the undersigned and reinstated the general reference of discovery matters to the magistrate judge assigned to the case. After reviewing the file and pending discovery matters, the undersigned instructed the parties to confer and resolve or narrow their points of dispute, and file a joint status report regarding the remaining discovery issues. Doc. 119.

Subsequently, plaintiffs filed a motion for reconsideration and hearing (Doc. 120) and addendum (Doc. 121) and defendants filed a motion for protective order (Doc. 123). Defendants filed a reply to plaintiffs' motion and addendum (Doc. 122), and plaintiffs filed a reply to defendants' response (Doc. 124). On May 20, 2020, the undersigned denied plaintiffs' motion for reconsideration and hearing and addendum and again instructed the parties to confer in good faith to resolve or narrow their points of dispute, and also denied defendants' motion for protective order without prejudice to refiling after the parties conferred. Doc. 125.

On May 13, 2020, the parties filed a joint status report stating that they had been unable to resolve any of their pending disputes. Doc. 126. Thereafter, the plaintiffs submitted renewed discovery motions: specifically, a “motion to compel production of materials subject to crime fraud exception to privilege” (Doc. 127), and a “motion to compel production of materials subject to fiduciary duty exception to privilege and waiver” (Doc. 128). Defendants also re-filed their “motion for protective order.” Doc. 130. Defendants responded to plaintiffs' motions to compel production materials. Docs. 135-136. Plaintiffs filed a response to defendants' motion for protective order (Doc. 133) and submitted replies to defendants' responses to their motions to compel production (Docs. 142, 143).

I. Background

Plaintiffs Lorrie Waters and Derral Keith Waters are the parents of decedent Cody Waters, who died in a single-car accident in Shreveport, Louisiana in August 2015. At the time of his death, the decedent was covered by an accidental life insurance policy issued by National Union Fire Insurance Company of Pittsburgh, PA (“NUFIC”) and administered by AIG Claims, Inc. (“AIG”), defendants in this case.¹ Plaintiffs, the beneficiaries of that policy, submitted a timely claim to AIG in October 2015. On April 1, 2016, defendants denied plaintiffs' claim under the policy's intoxication exclusion. Plaintiffs filed an appeal of the denial on April 1, 2016, and submitted their final appeal on June 27, 2016, claiming that the blood sample taken from the decedent's heart was unreliable for the purpose of determining whether the decedent was intoxicated at the time of his fatal accident.

In January 2017, defendants initiated a state court action in Louisiana seeking access to records and bodily fluid samples for additional testing, and access to individuals in the chain of custody to obtain testimony. Plaintiffs filed this action in March 2017, asserting deemed exhaustion of their administrative claim, while defendants' state court action was still pending and before defendants had made a determination on plaintiffs' appeal. Defendants filed a motion for summary judgment and a motion to stay based on plaintiffs' failure to exhaust administrative remedies under the Employment Retirement Income Security Act (“ERISA”). On May 23, 2017, the court granted a stay of all activity in this case pending the resolution of those motions. On October 17, 2017, defendants notified plaintiffs that their appeal had been denied and that their administrative remedies had been exhausted. Plaintiffs sought to amend their complaint to add state law claims stemming from defendants' alleged behavior related to their discovery action in Louisiana state court. United States District Judge Keith Watkins denied plaintiffs' motion to amend their complaint to include state law claims because such claims related to the administration of an insurance policy governed by ERISA and were therefore pre-empted under 29 U.S.C. § 1144(a).

Plaintiffs' pending motions to compel discovery seek documentation from defendants regarding defendants' administration of their claim, including defendants' actions during the stay of proceedings and their handling of evidence. Defendants seek a protective order prohibiting discovery beyond that allowed by ERISA itself and in Eleventh Circuit case law. The three motions are examined in turn below.

II. Crime-Fraud Exception to Privilege

The crime-fraud exception “requires the disclosure of otherwise privileged communications or materials obtained in the course of the attorney's duties on the client's behalf if made or performed in furtherance of a crime, fraud, or other misconduct fundamentally inconsistent with the basic premises of the adversary system.” Drummond, Inc. v. Collingsworth, 2015 WL 13768169 *2, 2015 U.S. Dist. LEXIS 197309 *6 (N.D. Ala.) (citing Cox. v. Adm'r United States Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994)). “The crime-fraud exception allows a party—in rare circumstances—to obtain discovery that otherwise would be protected by the attorney client privilege or the attorney work product doctrine.” Drummond Co. v. Conrad & Scherer, LLP, 885 F.3d 1324, 1335 (11th Cir. 2018). Courts in this circuit use a two-part test to determine whether the exception applies:

First, there must be a prima facie showing that the client was engaged in criminal or fraudulent conduct when he sought the advice of counsel, that he was planning such conduct when he sought the advice of counsel, or that he committed a crime or fraud subsequent to receiving the benefit of counsel's advice. Second, there must be a showing that the attorney's assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it.

In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1226 (11th Cir. 1987); see also U.S. v. Cleckler, 265 Fed.Appx. 850, 853, 2008 WL 426257, at *2 (11th Cir. 2008) (same). “The first prong is satisfied by a showing of evidence that, if believed by a trier of fact, would establish the elements of some violation that was ongoing or about to be committed․ The second prong is satisfied by a showing that the communication is related to the criminal or fraudulent activity established under the first prong.” Cleckler, 265 Fed.Appx. at 853 (citations omitted). Where the second prong of the test cannot be satisfied, the crime-fraud exception does not apply. See Cox, 17 F.3d at 1416. “The purpose of the second prong is to identify ‘communications that should not be privileged because they were used to further a crime or a fraud.’ ” Id. (citing Schroeder, 842 F.2d at 1227). “[W]hen determining the second prong, the requirement that the legal advice be in furtherance or related to fraudulent conduct ‘should not be interpreted restrictively.’ The crime need not have actually occurred for the exception to be applicable; it need only have been the objective of the communication.” Drummond, Inc., 2015 WL 13768169 *3, 2015 U.S. Dist. LEXIS 197309 *8 (internal citations omitted). “Mere allegations of criminality are insufficient to warrant application of the exception. Schroeder, 842 F.2d at 1226. The party claiming the exception must show a “factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies,” and, “[o]nce that showing is made, the decision whether to engage in camera review rests in the sound discretion of the district court.” Cox, 17 F.3d at 1417 (citing U.S. v. Zolin, 491 U.S. 554, 572, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) (holding that in camera review may be used to determine whether allegedly privileged attorney-client communications fall within the crime-fraud exception.)). For the court even to engage in in camera review, which requires “a lesser evidentiary showing” than is required to overcome the privilege, plaintiffs “must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability.” Zolin, 491 U.S. at 574-75, 109 S.Ct. 2619. As discussed below, in the instant case, plaintiffs have not presented a sufficient factual basis either to request in camera review or to overcome the privilege.

Plaintiffs argue that defendants (1) spoliated the decedent's vitreous fluid samples (2) breached the settlement agreement between the parties relating to the dismissal of the Louisiana court action; (3) committed fraud by withholding subpoena responses from Louisiana State University (“LSU”) in the state-court action; (4) committed fraud on the court by making baseless jurisdictional allegations and misrepresentations in Louisiana state court and by making legal and factual misrepresentations to this court in order to obtain an indefinite stay of proceedings and consider discovery on an ex parte basis; (5) breached its fiduciary duty through its use of representation by counsel; and (6) used their representation to violate Rule 11(b) of the Federal Rules of Civil Procedure. Specifically, plaintiffs allege that defendants (1) failed to prevent the destruction of the decedent's vitreous fluid samples by not providing instructions to NMS labs; (2) breached the parties' joint stipulation to dismiss the Louisiana action, entered on May 26, 2017 – in which the parties agreed that they would cease all discovery, that defendants would inform any persons or entities to whom requests were delivered that they did not need to respond to the requests, and that defendants would provide plaintiffs with copies of all responses provided to their discovery requests within 14 days (Doc. 56-1) – by providing only the coroner's subpoena responses in the Louisiana action; (3) committed fraud by failing to produce the sample submission form and other documents provided to LSU for transferring the vitreous fluid samples to NMS Labs; (4) misrepresented the factual and legal bases for its motions in this court and in the Louisiana state court, including defendants' motions to dismiss, motion for stay, and motions for extensions; (5) knowingly breached their fiduciary duties by committing (1)-(4); and (6) violated Rule 11(b) through their representations to the court. Plaintiffs request discovery of all documents, communications, and materials from defendants related to allegations (1)-(6) and defendants' assertions of privilege over those same materials.

However, plaintiffs have failed to present more than mere allegations; they have not made a showing of evidence which would support a reasonable belief that in camera review would establish the applicability of the crime-fraud exception to a privilege. While plaintiffs' motion cites to various evidence in support of its numerous allegations, it does not satisfy the second prong of the Schroeder test. The United States Supreme Court has cautioned against allowing “opponents of the privilege to engage in groundless fishing expeditions, with the district courts as their unwitting (and perhaps unwilling) agents.” Zolin, 491 U.S. at 572, 109 S.Ct. 2619. Plaintiffs have not put forth any evidence that defendants' communications with their defense counsel furthered or were closely related to an effort by defendants to spoliate the vitreous fluid sample, breach the settlement agreement and commit fraud, misrepresent their legal and factual positions to this court or the Louisiana state court, or knowingly breach their fiduciary duty. Instead, plaintiffs merely submit a blanket request for all documents, communications, and materials concerning their allegations. A reasonable interpretation of the evidence put forth suggests that defendants obtained counsel in Louisiana in order to obtain evidence related to plaintiffs' claim, that they initiated legal proceedings on the advice of counsel, and that defendants attempted to obtain and complete administrative review of plaintiffs' claim prior to the initiation of the instant action. The evidence cited by plaintiffs does not show any objective by defendants to commit the acts alleged by plaintiff, and, therefore, plaintiffs' motion fails to meet the second prong of the test in Schroeder. Thus, plaintiffs' motion to compel production of materials subject to crime fraud exception to privilege (Doc. 127) will be denied.

III. Fiduciary Duty Exception to Privilege and Waiver

In general, the fiduciary duty exception, or “fiduciary exception,” provides that attorney-client communications may not be privileged where legal advice is rendered to fiduciaries in the course of exercising their fiduciary responsibilities. The court's discussion of the fiduciary exception in the context of ERISA claims in Harvey v. Std. Ins. Co., 275 F.R.D. 629 (N.D. Ala. 2011), is instructive:

The fiduciary exception is now well recognized in the jurisprudence of both federal and state courts, and has been applied in a wide variety of contexts, including in litigation involving common-law trusts, disputes between corporations and shareholders, and ERISA enforcement actions. In the context of ERISA fiduciaries, the exception has been expressly recognized and persuasively applied by the Second, Fourth, Fifth, Seventh, and Ninth Circuit Courts of Appeal. Although the Eleventh Circuit has yet to address the issue, several district courts in the circuit also have persuasively recognized the fiduciary exception as applied to ERISA fiduciaries.

Courts that apply the fiduciary exception in the ERISA context reason [sic] have done so using two rationales: one derived from the ERISA trustee's duty to disclose; and the other based on the notion that the ERISA trustee is not the real client of the attorney. The “duty to disclose” line of reasoning is based on an ERISA fiduciary's obligation to provide full and accurate information to the plan beneficiaries regarding the administration of the plan. This obligation includes, if requested, any communications with an attorney that are intended to assist in the administration of the plan. The underlying theory to this approach is that the attorney-client privilege should not be used as a shield to prevent disclosure of information relevant to an alleged breach of fiduciary duty.

The “real client” line of reasoning emphasizes the role of the ERISA trustee. Other courts have focused instead on the role of the trustee and have endorsed the notion that, as a representative for the beneficiaries of the trust which he is administering, the trustee is not the real client in the sense that he is personally being served. Under that approach, when an attorney advises a plan administrator or other fiduciary concerning plan administration, the attorney's clients are the plan beneficiaries for whom the fiduciary acts, not the plan administrator. Thus, the very intention of the communication is to aid the beneficiaries and the fiduciary cannot subordinate the fiduciary obligations owed to the beneficiaries to their own private interests under the guise of attorney-client privilege.

Under either approach, however, courts have determined that the fiduciary exception does not defeat attorney-client privilege with respect to communications between an ERISA fiduciary and its attorneys on non-fiduciary matters, such as litigation defense or other private interests. Generally speaking, therefore, in the ERISA context the fiduciary exception only applies where the otherwise privileged communications concern plan administration, including any communications with an attorney that are intended to assist in the administration of the plan.

To determine whether a particular attorney-client communication concerns a matter of plan administration as opposed to legal advice for the fiduciary's own benefit, “courts engage in a fact-specific inquiry, examining both the content and context of the specific communication. Frequently, the key question is whether the communication was made before or after the final decision to deny benefits.” After the challenged benefits determination occurs, there should be little need for administrators to consult counsel regarding a specific benefits determination. Thus, where the fiduciary exception applies in the ERISA context, it only covers communications related to plan administration and generally not communications after a final decision.

275 F.R.D. 629, 632-33 (N.D. Ala. 2011) (internal citations and quotations omitted). See also Moore v. Metro. Life Ins. Co., 799 F. Supp. 2d 1290 (M.D. Ala. 2011) (finding that the fiduciary exception covers communications related to plan administration in an ERISA context).

Defendants describe their response to the filing of this action as a request that the court allow administrative review of plaintiffs' claim. The ERISA Appeals Committee did not finalize its decision on plaintiffs' claim until after the claims examiner received a final toxicology report and did not notify the plaintiffs of the decision until October 17, 2017, more than seven months after plaintiffs filed this action. Defendants moved to dismiss plaintiffs' complaint on the basis of a failure to exhaust administrative remedies, and admitted that administrative remedies were finally exhausted by the October 2017 “uphold letter.” Defendants argue that, in accordance with Harvey, the fiduciary exception should apply only to those communications which solely involve the administration of plaintiffs' claim.

Plaintiffs argue that the narrow holding of Harvey, which is not binding on this court, should not apply in this case. Plaintiffs assert that under both the “real client” rationale and the “full and fair” rationale—referred to as the “duty to disclose” rationale in Moore—defendants may not assert attorney-client privilege regarding materials related to their administration of plaintiffs' claim even if they also involved litigation because defendants intentionally blurred the line between litigation and administration, making the instant case factually distinguishable from Harvey. Plaintiffs contend that defendants' litigation counsel were actively involved in the administration of plaintiffs' claim, that the timing of defendants' redactions lends itself to the notion that they involved administration, and that the absence of detail in defendants' privilege log fails to explain the basis for defendants' assertions of privilege, making it impossible for plaintiffs or the court to engage in a context-specific inquiry as required. Plaintiffs seek to compel discovery of a number of items identified by defendants' privilege log; other documents referenced in defendants' privilege log for which specific entries were not included; and further information from the ERISA Appeals Committee, the claims examiner Brad Steffen, all attorneys involved in the administration of plaintiffs' claim, all activity logs in the claim file for plaintiffs, all information submitted, generated, or considered by any of the various agents employed by AIG for administration related matters, and all documents, records, or information submitted, generated, or considered by any other of defendants employees or agents who were consulted or otherwise involved in the administration of plaintiffs' claim. Plaintiffs state that these discovery requests are not exhaustive.

To the extent that plaintiffs seek discovery not protected by the attorney-client privilege or attorney work-product doctrines, plaintiffs' motion to compel production will be denied. However, the record evidence is insufficient for this court to conduct the fact-specific inquiry, considering the content and context of each specific communication, which is necessary to determine whether the fiduciary exception would apply. Thus, the court will order defendants to submit all documents, redactions, and other materials which are specifically sought by plaintiffs and which defendants are withholding on the basis of privilege. Defendants' submission must also include a brief explanation for each document indicating why the document is privileged.

IV. Motion for Protective Order

Rule 26(c) of the Federal Rules of Civil Procedure states that:

The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment oppression, or undue burden or expense, including one or more of the following:

․

(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.

Fed. R. Civ. P. 26(c)(1)(D). “[T]he party seeking the protective order must show good cause by demonstrating a particular need for protection” because “[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” Trinos v. Quality Staffing Servs. Corp., 250 F.R.D. 696, 698 (S.D. Fla. 2008) (citing Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)). The district court also has a duty to balance the interests of the parties. Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). The district court has broad discretion in fashioning a protective order, but it must articulate its reasons for granting the order “sufficient for appellate review.” In re Alexander Grant & Co. Litigation, 820 F.2d 352 (11th Cir. 1987).

The scope of discovery in an ERISA case hinges on whether the discovery sought by plaintiffs is relevant to the claim or defense of the defendants. See Till v. Lincoln Nat'l Life, Ins. Co., 107 F. Supp. 3d 1240 (M.D. Ala 2015); Melech v. Life Ins. Co. of N. Am., 857 F. Supp. 2d 1281, 1283-84 (S.D. Ala. 2012). “Therefore, the applicable standard of review will also shape the permissible scope of discovery in ERISA cases.” Featherston v. Metro. Life Ins. Co., 223 F.R.D. 647, 653 (N.D. Fla. 2004). However, ERISA itself does not provide a standard for courts reviewing the benefits decisions of plan administrators or fiduciaries. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Instead, the Supreme Court has established three distinct standards for courts to employ in reviewing an ERISA plan administrator's benefits decision: “(1) de novo where the plan does not grant the administrator discretion; (2) arbitrary and capricious where the plan grants the administrator discretion; and (3) heightened arbitrary and capricious where the plan grants the administrator discretion and the administrator has a conflict of interest.” Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1195 (11th Cir. 2010). To apply these standards, the Eleventh Circuit has established a six-step framework for reviewing an ERISA plan administrator's benefits decision based on its prior framework articulated in Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132, 1137-38 (11th Cir. 2004) and modified by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008):

(1) Apply the de novo standard to determine whether the claim administrator's benefits-denial decision is “wrong” (i.e., the court disagrees with the administrator's decision); if it is not, then end the inquiry and affirm the decision.

(2) If the administrator's decision in fact is “de novo wrong,” then determine whether he was vested with discretion in reviewing claims; if not end judicial inquiry and reverse the decision.

(3) If the administrator's decision is “de novo wrong” and he was vested with discretion in reviewing claims, then determine whether “reasonable” grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard).

(4) If no reasonable grounds exist, then end the inquiry and reverse the administrator's decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest.

(5) If there is no conflict, then end the inquiry and affirm the decision.

(6) If there is a conflict, the conflict should merely be a factor for the court to take into account when determining whether and administrator's decision was arbitrary and capricious.

Blankenship v. Metro. Life. Ins. Co., 644 F.3d 1350, 1355 (11th Cir. 2011) (citing Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1195 (11th Cir. 2010)).

An ERISA decision is “wrong” if the court disagrees with the administrator's decision after de novo review. See Williams, 373 F.3d at 1138. Where the court concludes that an administrator's decision is not “de novo wrong,” that ends the inquiry under the six-step framework. Ray v. Sun Life & Health Ins. Co., 443 F. App'x 529, 533 (11th Cir. 2011). The scope of discovery at the de novo review step is not limited to the administrative record compiled by the administrator, but may include additional discovery insofar as it “could shed light on ‘how the fiduciary reached its decision,’ or in examining ‘whether an administrator fulfilled his or her fiduciary duties.’ ” Capone, 592 F.3d at 1196. Under the six-part test, if the court finds that the administrator's decision was wrong de novo and the administrator was vested with discretion in reviewing claims, then the arbitrary and capricious standard applies. Blake v. Union Camp Int'l Paper, 622 F. App'x 853, 856 (11th Cir. 2015). At step three of the Williams/Blankenship test—after it is determined that the administrator was vested with discretion at step two and the court examines whether reasonable grounds supported the administrator's denial (under the arbitrary and capricious standard)—the court is limited to the “facts known to the administrator at the time the decision was made.” Id. at 856 (quoting Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241, 1246 (11th Cir. 2008)). At step three, the scope of discovery includes “evidence that was before the plan administrator when it denied the claim for benefits” and is not strictly limited to the administrative record. Id. at 854. Cf. Blankenship, 644 F.3d at 1356 (concluding that the plan administrator's benefits decisions had a reasonable basis—under the arbitrary and capricious standard—based on the administrative record).

Defendants move the court to limit the scope of discovery to the administrative record before defendants in reviewing plaintiffs' claim. Defendants' motion asserts that good cause exists for a protective order prohibiting discovery beyond that allowed under ERISA and Eleventh Circuit case law because plaintiffs have gone far beyond reasonable limits on discovery for an ERISA case and have indicated that they intend to extend the scope and amount of their discovery further. Defendants assert that “[t]he only relevant evidence to a de novo review at Step One of the six-step analysis [are] those facts about Plaintiff's claim that were known to the claims administrator when it made its decision.” Doc. 130 at 8. Defendants' reply to plaintiffs' response cites Blair v. Metro. Life Ins. Co., 569 F. App'x 827 (11th Cir. 2014), in support of the proposition that de novo review is limited to the administrative record. Defendants also maintain, without objecting to specific discovery requests made by plaintiffs, that discovery beyond the scope of the record before the administrator at the time a benefits decision was made is irrelevant and unduly burdensome, and that plaintiffs' deposition notices “pose a particular risk of seeking information beyond that allowed under Eleventh Circuit precedent—especially in light of Plaintiffs' notices to AIG and Rimkus, which clearly express significant forays into prohibited discovery topics.” Id. at 18.

Plaintiffs maintain that de novo review is not limited to the administrative record, that AIG has failed to produce the full administrative record thus far, and that discovery beyond the administrative record is appropriate to show subjective state of mind for the purpose of arguing for spoliation and sanctions, to establish crime or fraud, to consider culpability for attorney's fees, and to examine whether defendants provided a full and fair review of plaintiffs' claim. Specifically, plaintiffs maintain that their discovery requests are sufficiently tailored to examine the issues of spoliation, the relationships between the different actors involved in the administration of plaintiffs' claim, the relevant policies and procedures that would have affected the handling of plaintiffs' claim, and other issues which are relevant in examining whether defendants provided full and fair review of the claim and whether defendants participated in discovery in good faith.

Defendants' argument misstates the proper scope of discovery for de novo review by the court of the administrator's denial of benefits. In Blair, an ERISA plaintiff requested additional administrative review of a claim based on materials that were not before the claims administrator at the time the benefits decision was made, but instead were sent over the course of two years following the denial, and asserted that those extra materials should be considered in the court's de novo review of the administrator's benefits decision. Id. at 832. The Eleventh Circuit in Blair cited to Jett v. Blue Cross & Blue Shield of Ala., Inc. for the proposition that the review of an administrator's determination is based on the facts known to the administrator at the time the decision was made, 890 F.2d 1137, 1139 (11th Cir. 1989), and to Turner v. Delta Family-Care Disability & Survivorship Plan for the proposition that the court's review is based on the evidence of record, 291 F.3d 1270, 1273 (11th Cir. 2002). Neither case supports defendants' argument in this case; in Blair, the Eleventh Circuit's citation to Jett references the standard applicable to arbitrary and capricious review, and its citation to Turner references the standard applicable to the Court of Appeals' standard of review for a district court's grant of summary judgment. Neither citation references the review standard for the court's de novo review at step one of the six-step Williams test at issue here. The instant case is also factually distinguishable from Blair in that plaintiffs seek materials which were before the administrator at the time the benefits decision was made, rather than information obtained by the plaintiffs after the benefits decision occurred, as in Blair. Defendants also fail to set out anything more than broad allegations of harm which are unsubstantiated by specific examples or reasoning supporting their motion. Defendants' motion for protective order does not demonstrate a particular need for protection, and therefore it will be denied.

V. Conclusion

Accordingly, it is ORDERED as follows:

1. Plaintiff's motion to compel production of materials subject to the crime-fraud exception to privilege (Doc. 127) is DENIED.

2. Plaintiff's motion to compel production of materials subject to the fiduciary duty exception to privilege and waiver (Doc. 128) is DENIED to the extent it requests the court to compel discovery of items not protected by attorney-client privilege.

3. Defendants are ORDERED to submit all documents, communications, and materials which are currently being withheld on the basis of privilege and are specifically identified by plaintiffs' motion to compel discovery under the fiduciary exception within 14 days of this order for in camera review.

4. Defendants' motion for protective order (Doc. 130) is DENIED.

DONE on this the 6th day of August, 2020.

FOOTNOTES

1.   Waters' employer, ExpressJet Airlines, Inc., sponsored his policy through the ExpressJet Airlines, Inc. Consolidated Welfare Benefit Plan, former parties in this case. Both were terminated on July 7, 2018 by joint stipulation of the parties. Doc. 85.

Susan Russ Walker, District Judge