You already know that discovery is usually limited in appeals of the denial of ERISA-governed benefits. This is especially true when there is de novo review. 

But watch out if a breach of fiduciary duty claim is asserted. That same rule (prohibiting discovery) does not apply when a party seeks discovery into purported breaches of fiduciary duty under 29 USC 1132(a)(3).

Here’s the case of Friemon v. National Carriers’ Conference Committee and Union Pacific Railroad Company,  2018 WL 6171439 ( E.D. Missouri November 26, 2018).

FACTS: Friemon sought ERISA-governed Supplemental Sickness Benefits after sustaining injuries in a head-on auto accident. After Aetna denied the claim, Plaintiff brought suit claiming his benefits were: (1)  wrongly denied, and that (2) the employer breached a fiduciary duty under 29 USC 1132(a)(3) essentially by failing “to provide the necessary paperwork to apply” for the benefits. 

Even though there was no evidence the employer was even a fiduciary of the plan, Plaintiff sought discovery on the breach of fiduciary duty claim.

ISSUE: Is discovery allowed with regard to a breach of fiduciary duty claim under 29 USC 1132(a)(3)?


  1. “The Court finds it would be premature to determine [the employer’s] fiduciary status at this early stage of the proceeding.”  Op. at 4.
  2. “‘[T]he general rule is that review is limited to evidence that was before the administrator.’”  Op. at 3.
  3. “This limitation on discovery does not apply, however ‘to claims involving ERISA plans when the claims are for equitable relief under 1132(a)(3) or for equitable estoppel. …This is so because these types of actions ‘do not benefit from the administrative process.’”  Op. at 3.


Does an insurer’s litigation history dating back 10 years justify overbroad discovery in an ERISA case? It might… (See below for a strategy to combat this from occurring in your cases).

Also, in each case you should reassess whether or not to argue for the arbitrary and capricious standard. Consider the adverse effects of pushing for application of the abuse of discretion standard… versus stipulating to the de novo standard. This can help limit discovery.

This new case highlights these concerns…

Here’s the case of Black v. Hartford Life Ins. Co., 2018 WL 3872113 (D. Or. August 14, 2018).

FACTS. Plaintiff sought and received ERISA-governed disability benefits for nine years as a result of “Atypical Parkinson’s Disease.” An Independent Medical Exam, which relied in part on surveillance video concluded Plaintiff did not have Atypical Parkinson’s, and Hartford terminated benefits. The abuse of discretion standard of review could apply to the case. Hartford operated under a conflict of interest because it served as both the claims administrator and insurer.

Plaintiff brought suit and sought broad discovery regarding: (1) financial relationships between insurer and vendors; (2) performance evaluations of key employees of insurer.


  1. “District courts are generally limited to the administrative record unless a so-called structural conflict of interest exists.” Op. at 4.
  2. “[W]hether to permit ‘conflict’ discovery is well within the discretion of the Court….” Op. at 6.
  3. In this case, Hartford operated under a conflict of interest because it is the claims administrator and insures the claim. Op. at 6.
  4. “[I]n other ERISA cases within the Ninth Circuit, Hartford has used [certain investigator vendors] to conduct biased investigations.” Op. at 6. Remarkably: the Court cited cases that went back 10 years, 6 years and 4 years ago.
  5. “Given that Hartford operates under a conflict of interest and has a history of biased claims administration, the Court exercises its discretion to allow Plaintiff to obtain the discovery he seeks.” Op. at 6-7.
  6. The Court allowed discovery of vendor agreements because the Court “is particularly persuaded by the fact that Hartford has used the same vendors in this case as were used in [the 2012 and 2014 cases].” Op. at 7.
  7. “Hartford’s performance reviews ‘may reveal a structural incentive for individual claims adjustors to deny disability claims.’” Op. at 7.

KEY TAKE AWAYS to Limit Overbroad Discovery:

In discovery motions, most courts consider only the case at hand, and will not accept arguments tainting the insurer that rely on ten year old court rulings against the insurer in other cases.

  1. In discovery battles, consider agreeing to de novo review (which all but eliminates discovery) versus the abuse of discretion standard which allows the court greater discretion to order overbroad discovery. Where, as here, the district court reviews de novo the denial of benefits, that review is limited to the administrative record unless “circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.” Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir. 1995) (quoting Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993)).
  2. For future discovery battles, create a list now of court decisions upholding your insurer claims decisions. Each insurer should develop a “case win list” that can be made as an exhibit and submitted to the court to combat Plaintiff’s briefing cherry-picking adverse decisions.

You already know that discovery in ERISA cases is generally limited because of the “significant ERISA policy interests of minimizing costs of claim disputes and ensuring prompt claims-resolution procedures.”

Various circuits have different tests on when additional discovery may be taken beyond the administrative record.

And, if limited discovery is allowed, then what discovery is allowed?

The recent case of Aitken v. Aetna Life Insurance Company, 2017 WL 455547 (S. D. N. Y. January 19, 2017)(PDF) highlights the point.

FACTS: Aitken, a Chief Financial Officer, sought ERISA-governed long term disability benefits as a result of coronary artery disease. Aetna, which administered the claim and is liable to pay the benefit, had an in-house vocational assessment and a physician from Professional Disability Associates (PDA) evaluate the claim. After an exchange of reports and replies to Aitken’s physicians, Aetna denied the claim and the subsequent appeal.

During the lawsuit, Plaintiff alleged Aetna had a structural conflict of interest and sought discovery outside the administrative record. Plaintiff alleged PDA “serves only insurance companies,” PDA has a financial incentive to give favorable opinions “to preserve Aetna as a client,” and PDA and Aetna ignored his physicians’ opinions on disability.

DISTRICT COURT HELD: Limited Discovery Outside the Administrative Record Allowed.

  1. “Discovery in ERISA cases is generally limited because of the ‘significant ERISA policy interests of minimizing costs of claim disputes and ensuring prompt claims-resolution procedures.’” Op. at 10.
  2. “Generally, discovery is limited to the actual evidence that was before the claims administrator when the decision was made.” Op. at 6.
  3. “It is unnecessary to determine the standard of review before deciding on the scope of discovery.” Op. at 4, fn 2.
  4. The Court denied Plaintiff’s request to seek discovery into the “reasoning/actions undertaken by Aetna in the evaluation of Plaintiff’s claim.” “Unless it is shown that there is a reasonable chance that the requested discovery will satisfy the good cause requirement, a plaintiff is limited to the administrative record.” Op. at 6-7.
  5. A procedural irregularity arises when the claim review “does not take into account all comments, documents, records or other information submitted by the claimant….” Op. at 8.
  6. The record presented evidence of “some procedural irregularities” which justified “at least some discovery….” Op. at 10.
  7. Limited Discovery Defined: “[P]laintiff may propound document requests and interrogatories limited to the issue of whether, during the determination of benefits, Aetna disregarded his doctors and experts or his own complaints.” Op. at 11.