A continuing discovery battle in ERISA cases involves the production of claims manuals, internal policies and procedures.

What can you do when a claimant seeks claims manuals, policies and procedures?  Seek an agreed protective order.

What if the Plaintiff will not agree to a protective order?  Move for a protective order to assure the documents will be used only for this one case.

Why are claims manuals entitled to protection?  Courts conclude they are “commercial information” warranting a protective order or confidentiality agreement.

You will want to read this case.  Anderson v. Reliance Standard Life Insurance Company [pdf], 2012 WL 835722 (D. Md. March 9, 2012).

Keep it handy because it addresses obtaining protective orders when producing the ERISA Plan and insurers’ claims handling procedures and manuals.  It also has great language that can help defeat typical arguments used to oppose motions for  protective orders involving the discovery of claims manuals, policies and procedures confidential.


Plaintiff Anderson had a bad back.  He sought disability benefits under an ERISA plan with his employer.  Reliance Standard was the claims administrator.  When his appeal was denied, Anderson sued the Plan and Reliance Standard. During the suit Plaintiff sought discovery from Reliance including:  (1) information regarding relationships between the defendants and “various health care providers”;  and (2) documents about “internal guidelines, policies, procedures, [and] claims handling manuals.”  Discovery matters had been referred to a Magistrate Judge, subject to review by the District Court under a “clearly erroneous” standard of review.


1.      What evidence is required to obtain a protective order?

  • “A proponent of a protective order must present a particular and specific demonstration of fact that harm will result without a protective order.”  Op. at 3

2.     Are Claims manuals, policies and procedures entitled to a protective order or  a confidentiality agreement? YES

  • “[A]n insurance company’s claims manual is the type of commercial information that warrants a confidentiality agreement when it is produced in discovery.”  Op. at 3

  • ERISA regulations do not require general public access to ERISA Plan internal guidelines.  Op. at 4

3.     Courts should deny discovery requests when the purpose of the discovery is to obtain the documents for use in other lawsuits.

  • “[W]hen the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery is properly denied.” Op. at 3

  • “The rules implementing ERISA require Plans to produce internal rules and guidelines to beneficiaries who receive an adverse benefit determination, [but] that requirement governs the case-by-case provision of the documents. The regulations do not require—or support—general public access to internal guidelines.”  Op. at 4.

  • Even though Reliance Standard failed “to make a particularized showing of good cause” for the protective order, “the purpose of the particularized showing is to ensure that the requesting party obtains needed information, not to enable the requesting party to share information with third parties.” Op. at 3.

4.       If the Claims Manual is already in the public domain, then “that availability would have been sufficient for [the Judge] to have denied the discovery request.”  Op. at 4

5.       The fact that other insurers produce their claims manuals without a protective order is irrelevant to whether a protective order should be issued in this case.

  • “Anderson contends that other insurers have provided their claims manuals without protective orders.  Anderson does not explain why another insurer’s choice to make its claims manual public has any bearing on this Court’s determination whether Reliance’s manual contains protection-worthy commercial information.” Op. at 4.
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Photo of Mike Reilly Mike Reilly

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment…

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment advice, and has represented clients in more than 75 jury trials, arbitrations, bench trials and claims before the EEOC and Washington State Human Rights Commission.

Small and large employers retain Mike for his strategic advice and decades of experience in employment issues and litigation, business decisions and litigation avoidance. Mike provides advice in claims involving discrimination, retaliation, wrongful discharge, disability accommodation, ERISA and non-ERISA employee benefit claims, and wage/hour claims. He served as lead counsel in an employee raiding/trade secret case as reported in the Wall Street Journal, and defends employers in class action claims.

Mike’s remarks on employment issues have been quoted in NewsweekCorporate Legal TimesSeattle TimesEmployee Relations Law JournalPuget Sound Business JournalCFO.com, and other professional journals and management publications. Chambers USA’s Guide to America’s Leading Lawyers for Businessrates Mike in the top ranking (band one) for his work in labor and employment law, and has described him as “one of Seattle’s top-rate attorneys” who is “truly phenomenal [with] superb legal instincts” and “an amazingly assertive litigator.” His clients include Nordstrom, Seattle Seahawks, Home Depot, KeyBank, Starbucks, Fred Hutchinson Cancer Research Center, Red Robin and Seattle Chamber of Commerce, among others.