Update: Reliance Standard is very, very unhappy about this blog post. Through their attorneys, they first asked me to take this information down, claiming it was false and defamatory. When I did not do so, Reliance Standard filed a motion in the Jordan case seeking to have the judge order me to take it down. That motion was denied. Now, they have renewed their request that I take it down, again claiming that I am telling untruths and defaming them.
Notably, Reliance Standard does not claim that any of the facts I have reported are false. They only quibble with my terminology and the completeness of my statements. They have three main complaints:
1. My claim that they have been "routinely excluding evidence from its ERISA claim files for years" they say is false. They admit they have been excluding what they claim are "ministerial" emails pertaining to claims from their claim files, but they argue that such emails are not evidence because they do not pertain to the decisionmaking on the claim.
2. Reliance's second concern is my statement that “one could be forgiven for assuming there were attempts to hide or destroy evidence.” They say nothing was destroyed, and that they offered an innocent explanation for their use of "white redaction."
3. Finally, Reliance complains that I did not mention their later discovery responses, only their initial responses. They essentially say that denying the existence of emails and then admitting the existence of emails only after Plaintiff was forced to file two motions to compel is just a normal part of the discovery process, and because everything came out eventually, there's no harm, no foul.
I believe that it is very important for this information to remain available to claimants and their attorneys for future cases, and that it is my responsibility to share unprotected information of this nature as widely as possible. However, I do not want it to be said that I have unfairly maligned Reliance Standard. Their actions speak for themselves, in my opinion. To that end, I have revised the original blog post at the bottom of this post, and I will provide contextual responses to Reliance's concerns below.
Regarding Reliance's claim that "ministerial" emails are not evidence, and that they therefore have not been excluding evidence from claim files, I believe that is an incorrect statement of the law. Even “ministerial” emails, as Reliance describes them, are relevant documents in an ERISA case. The ERISA claims regulations state that all “relevant” documents must be provided to claimants, and defines “relevant” as follows:
A document, record, or other information shall be considered “relevant” to a claimant's claim if such document, record, or other information
(i) Was relied upon in making the benefit determination;
(ii) Was submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination;[...]
29 C.F.R. Sec. 2560.503-1(m)(8). This is a broad definition of relevance that fairly includes any documents, emails included, which were created as part of the handling of a claim.
Reliance argues instead that the phrase “in the course of making a benefit determination,” such as is found in subparagraph (ii), means that a document is not “relevant” if it did not have a direct impact on the claim decision itself. That interpretation is not supported by a reading of the rest of the section. That would essentially strip away subparagraphs (ii) - (iv), and limit relevance only to subparagraph (i). Subparagraph (i) states that documents “relied upon in making the benefit determination” are relevant, but is then followed by subparagraph (ii), which states that every other document which was “generated” in the course of the claim, “without regard to whether such document... was relied upon in making the benefit determination...” is also relevant. As such, I believe Reliance is incorrect in claiming its internal emails are not “evidence.”
When it moved to have my blog taken down, Reliance's attorneys did not cite any cases supporting their narrow interpretation of what constitutes evidence in an ERISA case. For my argument, I cited Miller v. MetLife, 925 F.2d 979, 986 (6th Cir. 1991), in which the Court stated that “In reviewing a final decision, this court must consider what occurred during the administrative appeals process.” I argued that this means the entire administrative appeals process is on review, including what Reliance would choose to characterize as “ministerial.”
Furthermore, even if Reliance's narrow definition of “evidence” was correct, it still withheld evidence from the claim file it originally produced. Ms. Dickerson’s email - the one that Ms. Brunner ordered her to delete - was absolutely related to the determination of Ms. Jordan's claim. Therein, Ms. Dickerson laid out her rationale for the final denial of the claim to her supervisor, Ms. McGill. Reliance has never offered an explanation for why that email was not included in the claim file.
Responding to Reliance's second concern, I will make clear in the edited blog below that it is only my opinion that Reliance intended to hide evidence in this case. I have no direct proof of it, but neither do I accept their explanation that the "white redaction" was an innocent mistake. That, however, is my opinion, not a fact I can prove. The verifiable fact is that they provided me with discovery materials from which information was withheld, and did not disclose that withholding until after a second order from the court compelled them to. Future litigants should present this information honestly and let a judge decide if Reliance should be required to double-check its discovery responses.
Finally, regarding Reliance's concern that I am not taking into consideration their later discovery responses, I do not see how that matters. The fact remains that their original discovery responses were deficient, and if I had not filed not one, but two motions to compel complete and accurate discovery responses, I do not believe I would have received any of this additional material. The point I am making with this blog is that future litigants should be very cautious in accepting what Reliance provides with its initial discovery responses in all cases. Whether you chalk it up to carelessness or actual bad behavior, this case demonstrates that Reliance may have much, much more it is not telling you in its initial responses.
Without further ado, the edited original blog post follows. I am also attaching an updated version of my affidavit for use in litigation. If anyone using this information has any questions for me, feel free to contact me through this website.
I rarely post about ongoing cases, not because there's anything wrong with that, but because there's usually nothing interesting to say until we actually receive a decision at the end of the case. However, based on one insurer's conduct in one case, I think it is worth making an exception. It has become apparent to me, based on the conduct of Reliance Standard Life Insurance Company in the case of Jordan v. Reliance Standard, that this insurer has been routinely excluding certain emails from its ERISA claim files for years. Also, while I have no direct proof, I believe Reliance Standard attempted to hide and destroy evidence in this case.
Because discovery in ERISA cases is so severely limited, many ERISA plaintiffs and their attorneys would be unable to uncover such omissions by Reliance Standard in its discovery disclosures without permission from the presiding judge to engage in deeper discovery than is usually allowed. One of the things that can support such a request for deeper discovery is evidence of discovery abuses in other cases. To that end, I am sharing the attached affidavit, in which I lay out what happened in my client's case. For any attorneys or claimants who find this document on my website, know that it is yours to use in your case in any way you see fit. None of the information in this document is privileged or protected in any way. If Reliance Standard has told you you received a complete claim file in court, and you don't see any internal emails in it, then I encourage you to ask your judge to force Reliance Standard to look again, and to provide a complete and proper ERISA Administrative Record.
- Jeremy Bordelon
p.s., Since the original posting of this blog and affidavit, there have been many developments in this case which are available on PACER, including affidavits from Mr. Cate and Mr. Bachrach offering their explanations of what happened during the discovery process, as well as briefs and an order related to Reliance's attempt to have this blog taken down. I encourage anyone with a PACER account to log on to the Court's website and read those affidavits, as they are also unprotected and available for download. This additional knowledge changes none of the facts described in my affidavit.