United States District Court, D. Colorado
LORRAINE M. RAMOS, CONSTANCE R. WILLIAMSON, KAREN F. MCLEOD, ROBERT MOFFITT, CHARLENE M. GOODALE, LINDA ANN HERYMAN AND DELRI HANSON, individually and as representatives of a class of plan participants on behalf of the Banner Health Employees 401 k Plan, Plaintiffs
BANNER HEALTH, BANNER HEALTH BOARD OF DIRECTORS, LAREN BATES, WILFORD A. CARDON, RONALD J. CREASMAN, GILBERT DA VILA, WILLIAM F. DWYER, PETER S. FINE, SUSAN B. FOOTE, MICHAEL J. FRICK, MICHAEL GARNREITER, RICHARD N. HALL, BARRY HENDIN, DAVID KIKUMOTO, LARRY S. LAZARUS, STEVEN W. LYNN, ANNE MAR1UCC1, MARTIN L. SCHULTZ, MARKN. SKLAR, QUENTIN P. SMITH, JR., CHRISTOPHER VOLK, CHERYL WENZINGER, BANNER HEALTH RETIREMENT PLANS ADVISORY COMMITTEE and JOHN DOES 1-20, Defendants
Honorable William J.Martinez
PLAINTIFFS' MOTION TO COMPEL SUPPLEMENTATION OF
BANNER DEFENDANTS' DISCOVERY RESPONSES
Magistrate Judge Michael J. Watanabe
motion practice deals with the extent to which Defendants
should be required to provide additional materials prepared
or developed for and/or utilized at certain meetings of the
Banner Health Retirement Plans Advisory Committee
("RPAC") and the Banner Investment Committee
addresses the temporal scope of discovery. Federal courts
have considered two approaches. In United States v.
R&F Properties of Lake County, Inc., 433 F.3d 1349
(11* Cir. 2005), the 11* Circuit held that the proper
temporal scope ended on the date the plaintiff filed date the
plaintiff filed her complaint. On the other hand, the Court
in Manning v. General Motors, 247 F.R.D. 646 (D,
Kan. 2007 - an employment discrimination case) found that the
scope of discovery for a reasonable number of years both
prior to and after the "liability period ... may be
relevant and/or reasonably calculated to lead to the
discovery of admissible evidence." 247 F.R.D. at
Plaintiffs seek full sets of meeting minutes and other
materials for Banner's RPAC and IC (2016-2017); quarterly
asset balances from the second quarter of 2015 forward;
participant count from the second quarter of 2015 forward;
and a spreadsheet created and maintained by Michael
O'Connor as the result of his 2016 audit of the Banner
Health Employees 40l(k) Plan. (Reply: 2).
object on the following grounds: (a) lack of relevance; (b)
"Participant-Related Information That Post-Dates the
Complaint Should Await the Outcome of this Case" (in
other words, bifurcation: "If Plaintiffs succeed at
trial and the Court determines that then-current participant
information is relevant, the Banner Defendants will produce
information the Court requires.") (Response: 6); (c) the
requested spreadsheet that considers "administrative
errors" that occurred from 2012 forward in the sum of
approximately $1.5 million. Defendants respond to this
request: "Banner recognized this error and worked
diligently to audit the 4Ol(k) and return the
overpayments." (Id.) Defendants aver that,
because the complaint addresses claims from 2009-2013, and
because the ineligible expenses have been returned the Plan,
the spreadsheet is not subject to discovery.
Special Master finds that the question of bifurcation of the
trial is not be within the Court's Order of Reference.
Therefore, the Special Master limits this review to the
following case law concerning bifurcation of discovery.
Rule of Civil Procedure 42(b) authorizes a district court to
bifurcate trial on separate issues in furtherance of
convenience, to avoid prejudice, or when separate trials will
be conducive to expedition and economy. Whether to try issues
separately under Rule 42(b) is within the district
court's discretion. The party seeking bifurcation has the
burden of demonstrating judicial economy would be promoted
and that no party would be prejudiced by separate trials. The
decision to bifurcate is made 'on a case-by-case
basis' and is ultimately a practical decision.
Marchess v. Milestone Systems, Inc., 2013 WL
12183618 (E.D. Mich. 2013). See also: In re Rail Freight
Fuel Surcharge Antitrust Litigation, 258 F.R.D. 167
(D.C. 2009): "Courts must consider the degree to which
the certification evidence is "closely intertwined"
with, and indistinguishable from, the merits evidence in
determining whether bifurcation is appropriate . . . .
Bifurcated discovery fails to promote judicial economy when
it requires "ongoing supervision of discovery."
Id. If bifurcated, this Court would likely have to
resolve various needless disputes that would arise concerning
the classification of each document as "merits" or
"certification" discovery . . . . Discovery
relating to class certification is closely enmeshed with
merits discovery, and in fact cannot be meaningfully
developed without inquiry into the basic issues of the
litigation." 258 F.R.D. at 173-176.
noted, the Court will decide whether the matter should
proceed in one or more phases. At this time, the Special
Master recommends that the Court not bifurcate discovery
prior to trial, subject to the parties' right to file any
motion(s) concerning bifurcation of the case.
respect to the remainder of the motion, the Special Master is
unclear about Defendant's presenting portions of the
materials contained in Plaintiffs' discovery request
while withholding other items. Although Defendants'
statements with respect to the Investment Committee are
sensible and serve as a basis for denying Plaintiffs motion.
Defendants' position with respect to the RPAC materials
do not meet the same standards.
correctly state that certain meetings had not occurred at the
time of the filing of the Complaint. They also stand on solid
ground when they object to potential (but not yet made)
production of materials "on a rolling basis and
continuing indefinitely as these meetings continue to occur
quarterly." (Response: 4)
provide a chart in their reply (3) demonstrating that there
was either partial or complete production of materials from
the RPAC in the first three quarters of 2016. There has been
no production of those materials in 2017.
argument about the "continuing indefinitely" nature
of the requested discovery is logical if additional requests
were (or could be) made. As noted, supra,
Plaintiffs' requests are specific and limited. Given the
previous releases, the Special Master concludes that the
requests with respect to the materials that have been
partially released appear to be reasonably calculated to lead
to the discovery of admissible evidence. It is logically
possible that the sought-after RPAC materials may be relevant
to Plaintiffs' claims. Production of the sought-after
materials will not run afoul of the ERISA policy objectives
which " provide a method for workers and beneficiaries
to resolve disputes over benefits inexpensively and
expeditiously." Jeffreys v. Hartford Life and
Accident Insurance Co., 2006 WL 1186493 (D. Colo. 2006).
portion of the 2016 materials have been produced, the
remaining production thereof (any materials from RPAC
meetings in 2016) should not be so expensive as to outweigh
its likely benefit, taking into account the amount in
controversy, the importance of the issues at stake in the