May 24, 2018
Last week the U.S. District Court for the Southern District of New York issued a ruling in Hogan-Cross v. Metropolitan Life Ins. Co., 2008 U.S. Dist. LEXIS 58027 that is comprehensively summarized by Roy Harmon over at Health Plan Law. Go over and read it, I’ll wait.
I agree with Roy that this is an important case. It interprets Met Life v. Glenn, 128 S.Ct. 2343 (2008), in a way that alters the discovery playing field in the way I anticipated in this blog post. Glenn clearly anticipates discovery on the conflict of interest issues. As the court in Hogan-Cross states inits last penultimate paragraph, "[b]lunderbuss attempts to cut off discovery on the ground that it never or rarely should be permitted in these cases, whatever their merits before Glenn, no longer have merit." The question that I find intriguing is the degree to which Glenn plows new ground with for ERISA discovery.
Judge Kaplan in Hogan-Cross makes clear that he doesn’t believe Glenn altered all that much in terms of expanding the scope of discovery, at least in the Second Circuit. I can’t say much about that, not being particularly up to speed on Second Circuit law on discovery in ERISA cases. But Judge Kaplan does make clear that, regardless of the state of ERISA law pre-Glenn, it’s now evident that discovery is pretty much the same for ERISA as for non-ERISA cases, at least on the issue of conflict of interest.
That last phrase is important. I question whether there is a strong basis in Glenn for the idea that ERISA discovery is wide open for all purposes. I agree with Hogan-Cross that the effect of Glenn is to expand discovery as to conflict of interest in ERISA cases. But I think there will be a split between various cases about that. Many federal judges are reluctant, for a variety of reasons, to allow any discovery at all in ERISA benefit denial cases. I'm not sure that, the explicit language of Glenn notwithstanding, judges who are not disposed to allow discovery in these cases will change their tune. Old habits die hard.
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