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Discovery in Long Term Disability Cases-A breathe of life

Most Long Term Disability cases in our office are governed by ERISA as they are non-governmental employer provided benefits. The fact that they are ERISA claims is usually all bad for our clients as the law in this area has a number of inherent anti-claimant aspects. Primary among those aspects is that discovery was typically extremely limited or, more often simply not allowed.

What is discovery and why is it important?

Discovery is the process by which, during a lawsuit, each side gets to discover information from the opposing party about the case and the surrounding issues. In every single area of the law (except LTD claims governed by ERISA) discovery is practically unfettered. A party can seek any and all information that may be relevant to the case. What litigants find during discovery, many times can make or break a case. Who ran the red light? Did Defendant know that the basement leaked before they sold the house? Did the Doctor forget to count the number of sponges before he closed the incision? How many times has the insurance company hired the doctor who says the claimant is not disabled?

Prior to the MetLife v Glenn decision Courts generally accepted the Long Term Disability Insurance Companies argument that no discovery was needed or allowed in ERISA cases. That appears to have started to changed.

In Geer v Hartford Life and Accident Co. the Court rejected Hartford’s motion for a blanket protective order preventing all discovery. Instead, the Court determined that “discovery should be allowed where a plaintiff has provided sufficient initial facts suggesting a likelihood that probative evidence of bias or procedural deprivation would be developed.” The Court found most most persuasive Plaintiff’s argument questioning the independence of the file reviewer (doctor) where Plaintiff presented evidence that Hartford had hired the same file reviewer 34 times in the past.