I've blogged on a number of previous occasions about the scope of discovery in ERISA benefit denial cases, especially in light of Met Life v. Glenn, 128 S.Ct. 2342 (2008). Another aspect of the discussion about the availability of discovery, at least in the Tenth Circuit, are these four factors identified in Weber and other Tenth Circuit precedent. The first three factors seem to clearly contemplate the need for either the willingness of an insurer to provide information relating to these issues in the mandatory pre-litigation appeal process or discovery once in litigation. Does a claimant need to request information relating to these factors before llitigation begins? If not, can a claimant request that information for the first time in litigation?
It seems quite evident that if a claimant does request that information in the pre-litigation appeal process and is stonewalled (which is likely to occur), the claimant can conduct discovery on those issues in litigation. Otherwise, how could a court competently consider the identified factors? In light of the fiduciary duty obligations outlined in ERISA that apply to insurers who both administer and pay claims, a good argument can be made that the insurer has an obligation as part of its claims procedure obligations to provide information relating to these factors in its claims file regardless of whether the claimant specifically asks about these factors or not. At least, a fiduciary in the Tenth Circuit would be well advised to follow that practice.
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