United States District Court, D. Colorado
LORRAINE M. RAMOS, et al., Plaintiffs,
BANNER HEALTH, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTION TO COMPEL, ADOPTING IN PART AND
REJECTING IN PART SPECIAL MASTER REPORT NO. 7, AND OVERRULING
IN PART AND SUSTAINING IN PART PLAINTIFFS'
William J. Martínez, United States District Judge
Lorraine M. Ramos and others assert claims under Section 502
of the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1132, against
Defendants Banner Health and several of its officers
(collectively, “Banner”) as well as against
Jeffrey Slocum & Associates, Inc. (“Slocum”).
This case is currently before the Court on Plaintiffs'
Motion to Compel Supplementation of the Banner
Defendants' Discovery Responses (the
“Motion”) (ECF No. 258) and Special Master John
P. Leopold's Report No. 7 concerning the Motion (ECF No.
267). Plaintiffs seek production of five
categories of documents related to materials prepared,
developed, and used at meetings of the Banner Health
Retirement Plans Advisory Committee (“RPAC”) and
the Banner Investment Committee (“IC”), quarterly
asset balances through the present, Plan participant counts
through the present, and a spreadsheet related to a 2016
audit. The discovery dispute was referred to Special Master
Leopold for a recommendation, which he provided on January
16, 2018 by way of Report No. 7. (ECF No. 267.)
reasons discussed below, the Court concurs in part with the
Special Master and orders Banner to produce the 2016 RPAC
minutes and materials. The Court rejects the Special
Master's recommendation on the quarterly asset balances
and Plan participant counts, and orders Banner to produce
documents with such information through November 30, 2017. In
addition, because the Special Master recommendation did not
directly address the audit spreadsheet, the Court reviewed
the underlying Motion and now orders production of the
parties are familiar with the factual and procedural
background of this case, so an exhaustive review is
unnecessary. The facts relevant to the instant dispute as set
forth below are drawn primarily from Plaintiffs' Amended
Complaint (ECF No. 118) and the parties' briefing on the
Motion and on the Special Master's recommendation (ECF
Nos. 258, 264, 265, 269-1, 272).
are participants in Banner's 401(k) employee retirement
plan (the “Plan”). The Plan assets are held in
trust, with a trustee appointed by Banner. Banner Health is
the named fiduciary of the Plan, as well as Plan
administrator within the meaning of ERISA. See 29
U.S.C. §§ 1002(16)(A) & 1102(a).
selected Fidelity Management Trust Company
(“Fidelity”) to provide recordkeeping and
administrative services to the Plan. Banner also hired
Defendant Slocum as a third-party investment consultant to
act as a fiduciary for investment and administration of Plan
assets. Slocum was responsible for reviewing investment
policy statements that governed the Plan and investment
options in the Plan.
parties agree that RPAC was a fiduciary to the Plan
responsible for day-today Plan operations, selecting
investment options, and evaluating fees. (ECF No. 258 at 4;
ECF No. 264 at 3.) The IC was an authorized subcommittee of
the Banner Health Board of Directors that was responsible for
monitoring performance of the CEO. (ECF No. 258 at 4; ECF No.
264 at 3; ECF No. 269-1 at 4.) Plaintiffs claim that the IC
was a fiduciary to the Plan. (ECF No. 269-1 at 4.) Banner
Defendants disagree. (ECF No. 264.)
commenced this class action litigation on November 20, 2015,
alleging five separate causes of action. (ECF No. 1.)
Relevant to this discovery dispute, Plaintiffs allege that
Defendants breached their fiduciary duties to Plaintiffs by
allowing Fidelity to collect excessive recordkeeping and
administrative fees from the Plan, and by failing to assure
that compensation paid to Fidelity and Banner Health was
reasonable for the administrative services provided. (ECF No.
118 ¶¶ 62-80, 120-30). On March 28, 2018, the Court
granted class certification of Plaintiffs' claims against
Banner, defining the class as “[a]ll participants and
beneficiaries of the Banner Health Employees 401(k) Plan from
November 20, 2009 through the date of judgment, excluding the
Defendants.” (ECF No. 296.)
2017, Plaintiffs moved to compel production of certain
documents. (ECF No. 258.) The Court referred the discovery
dispute to Magistrate Judge Michael J. Watanabe, who in turn
referred it to Special Master Leopold with instructions to
review the Motion and provide the Court with a written report
and recommended ruling. (ECF Nos. 55, 261.) Special Master
Leopold submitted Report No. 7 on the Motion on January 16,
2018. (ECF No. 267.) Plaintiffs timely filed an objection
(ECF No. 268) and, though not explicitly contemplated by the
Federal Rules of Civil Procedure, Defendants filed a response
(ECF No. 272). Upon Judge Watanabe's retirement, the
undersigned withdrew the referral to Judge Watanabe. (ECF No.
326.) As a consequence, the Court will treat Report No. 7 as
a report and recommendation made directly to the undersigned.
STANDARD OF REVIEW
Court reviews objections to factual and legal findings of a
special master de novo and rulings on procedural
matters for abuse of discretion. Fed.R.Civ.P. 53(f)(3)-(5).
Even where a party does not object to a recommendation, a
court may elect to review a special master recommendation
de novo. Id., Advisory Comm. Note 2003.
Upon review, the Court may “adopt or affirm, modify,
wholly or partly reject or reverse, or resubmit to the master
with instructions.” Id. 53(f)(1).
differ on whether discovery recommendations are procedural or
nonprocedural in nature. See Callwave Commc'n LLC v.
AT&T Mobility LLC, 2016 WL 3450736, at *1, n.3 (D.
Del. June 16, 2016). Neither this District nor the United
States Court of Appeals for the Tenth Circuit has directly
addressed this issue. Some courts in other Districts consider
discovery recommendations a procedural matter and review
special master recommendations for abuse of discretion.
See Nippon Steel & Sumitomo Metal Corp. v.
Posco, 2014 WL 1266219, at *1 (D.N.J. Mar. 26, 2014)
(reviewing a special master recommendation on discovery
matters under an “abuse of discretion” standard);
In re Hardieplank Fiber Cement Siding Litig., 2014
WL 5654318, at *1 (D. Minn. Jan. 28, 2014) (“A decision
regarding the scope of discovery is a procedural matter,
reviewed for abuse of discretion.”). Other courts,
faced with objections to special master recommendations on
discovery issues, have reviewed de novo. See In
re Cathode Ray Tube (CRT) Antitrust Litig., 301 F.R.D.
449 (N.D. Cal. 2014) (reviewing de novo a special
master's recommendation on a motion for a protective
order); Wellin v. Wellin, 2015 WL 5781383, at *1
(D.S.C. Sept. 30, 2015) (appearing to apply a de
novo standard to a special master's report and
recommendation to non-dispositive discovery motions).
Court concludes that it need not resolve the question of
whether objections to a special master recommendation on the
scope of discovery should be decided de novo or
under an abuse of discretion standard of review. Both
Plaintiffs and Banner contend that the Court should review
Report No. 7 de novo, which the Court may in any
event do in its discretion. See Fed. R. Civ. P. 53,
Advisory Comm. Note. 2003.
under a de novo standard, the Court overrules in
part and sustains in part Plaintiffs' objections to the
issues actually decided by the Special Master. For issues on
which the Special Master did not issue a specific
recommendation, the Court decides Plaintiffs' Motion in
the first instance.
Federal Rules provide that “parties may obtain
discovery regarding any nonprivileged mater that is relevant
to any party's claim or defense and proportional to the
needs of the case.” Fed.R.Civ.P. 26(b)(1). This broad
standard allows parties to discover information necessary to
support their case. Meeker v. Life Care Ctrs. of America,
Inc., 2015 WL 5244947, at *2 (D. Colo. Sept. 9, 2015).
Generally, the party “objecting to discovery must
establish that the requested information does not fall under
the scope of discovery as defined in Fed.R.Civ.P.
26(b)(1).” Clay v. Lambert, 2017 WL 4755152,
at *2 (D. Colo. Oct. 20, 2017). However, “when the
relevance of a discovery request is not apparent on the face
of the request itself, the proponent of discovery bears the
burden of making an initial, rebuttable showing of
relevance.” Meeker, 2015 WL 5244947, at *2.
the scope of discovery is broad, it is not unlimited and is
bounded by the principle of proportionality. Meeker,
2015 WL 5244947, at *2; see Fed. R. Civ. P.
26(b)(2)(c). In determining whether a discovery request is
proportional or should be limited, a court considers
“the importance of the issues at stake in the action,
the amount in controversy, the parties' relative access
to relevant information, the parties' resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed R. Civ. P. 26(b)(1),
(2)(C); see Meeker, 2015 WL 5244947, at *2.
“This is particularly true in large or complex
litigation, in which a court may limit the scope of discovery
to protect a party from unduly burdensome discovery
requests.” Beltran v. InterExchange, Inc.,
2018 WL 2045890, at *3 (D. Colo. May 2, 2018).
are under a continuing obligation to supplement discovery if
they learn “that in some material respect the
disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been
made known to the other parties during the discovery
process.” Fed.R.Civ.P. 26(e)(1); see Switch
Commc'ns Group v. Ballard, 2012 WL 2342929, at *7
(D. Nev. June 19, 2012). While courts allow discovery of
documents post-dating the filing of a complaint, such
documents must be relevant to the claims in the complaint and
not a fishing expedition into other potential claims.
United States ex rel. Spay v. CVS Caremark Corp.,
2013 WL 4525226, at *3-4 (E.D. Pa. Aug. 27, 2013). When
evaluating the temporal scope of discovery, “the
court's task is to balance the relevance of the
information against the burden on the defendant.”
Caban v. Sedgwick Cnty. Sheriff's Dept., 2000 WL
1480481, at *2 (D. Kan. May 18, 2000). The balance will
reflect the needs of and burdens on the parties and the
judicial system. For example, in a Medicare fraud case, the
court recognized that “some end date must be
established; otherwise, discovery would never end. It is not
manageable to permit the continued discovery of patient
records, experts' reviews of them, and deposition
testimony about them through trial.” United States
ex rel. Conroy v. Select Med. Corp., ...