On July 26, 2013, Magistrate Judge Jeffrey Gilbert issued a ruling in Warner v. Unum Life Ins.Co. of America, No. 12 C 2782 Click Here (N.D.Ill.) granting plaintiff's motion to compel discovery in an ERISA action governed by the arbitrary and capricious standard of review. DeBofsky, Sherman & Casciari attorney Martina Sherman successfully argued that limiting discovery to the so-called administrative record, or the claim record assembled by the insurance company during the course of the claim, was too restrictive. Instead, the court permitted exploration of Unum's potential conflict of interest based on evidence suggesting that Unum may not have objectively assessed Debra Warner's claim for disability benefits. In particular, the court questioned why the insurer disregarded testing performed by a physical therapist. Consequently, the court permitted Warner to obtain compensation information and performance appraisals of Unum personnel in order to determine whether financial incentives may have biased their assessment of the evidence. However, the court refused to permit discovery of statistical information regarding approval/denial rates or a sampling of prior reports because it deemed such evidence potentially misleading. The court also found that communications between Unum claims personnel and the insurer's legal staff during the course of the claim appeal could not be withheld from production under an assertion of attorney-client privilege.
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