Free Reply - District Court of Arizona - Arizona

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Stuart H. Sandhaus (Pro Have Vice) (California Bar #146525) STUART H. SANDHAUS, A.P.C. Los Rios Historic District 31901 Los Rios Street San Juan Capistrano, CA 92675 [email protected] (949) 481-0236 David F. Gomez (006790) Michael J. Petitti, Jr. (011667) GOMEZ & PETITTI, P.C. 2525 East Camelback Road, Suite 860 Phoenix, Arizona 85016 [email protected] (602) 957-8686 Attorneys for Plaintiff UNITED STATES DISTRICT COURT

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Case 2:04-cv-00525-RCB Document 142

CONSTANCE ANN MAYNARD, an individual, Case No. CIV 04-525-PHX-RCB Plaintiff, v. CNA GROUP LIFE ASSURANCE COMPANY, an Illinois Corporation; CONTINENTAL CASUALTY COMPANY; an Illinois Corporation; HEWITT ASSOCIATES LLC, an Illinois Limited Liability Company; and HEWITT LONG TERM DISABILITY PLAN, PLAINTIFF'S REPLY TO DEFENDANTS' RESPONSE TO PLAINTIFF'S OBJECTION TO DEFENDANTS' AUTHENTICATION OF THE CLAIM FILE AND REQUEST FOR ADDITIONAL DISCOVERY

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I.

DEFENDANTS' RESPONSE DOES ABSOLUTELY NOTHING TO CURE THE DEFICIENCIES NOTED IN PLAINTIFF'S OBJECTION TO THE PURPORTED DEFENDANTS. On June 30, 2008, the Court ordered Defendants to authenticate the AUTHENTICATION PREVIOUSLY FILED BY

"administrative record and claim file" to ensure that the "entire claim file and administrative record is submitted . . . ."1 Defendants filed the Declaration of Cheryl Sauerhoff dated August 1, 2008, in a failed attempt to comply with that order.2 The declaration provided no facts which established that declarant's position as an Appeal Team Leader provided her with personal knowledge regarding Plaintiff's claim file or administrative record or of any of the contents thereof or the integrity of the process of compiling Plaintiff's file or record, or any of the documents applicable to Plaintiff's claim. No facts were sworn to which would establish that the Bates-stamped documents referred to in the declaration comprised the "entire claim file and administrative record." Federal Rule of Evidence, Rule 901, requires authentication as a condition precedent to the admissibility of evidence. Authentication requires evidence sufficient to support a finding that the matter is what its proponent claims. Unless a piece of

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June 30, 2008 Civil Minutes-General. August 1, 2008 Declaration of Cheryl Sauerhoff. 2

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evidence has been authenticated, has been proven to be what it is claimed to be, it is irrelevant and therefore not admissible. (FRE 401, 402.) The facts provided by the Declaration of Cheryl Sauerhoff, provided upon information and belief, are woefully inadequate to support a finding that the documents referred to are the "entire claim file and administrative record" as required by the Court's order. In her objection, Plaintiff detailed at some length the nature of the deficiencies in Ms. Sauerhoff's declaration. If in fact the documents referred to do comprise the "entire claim file and administrative record," and if in fact Ms. Sauerhoff has the requisite personal knowledge to authenticate the documents and their completeness, it would have been a relatively simple matter to prepare a new and proper declaration and submit it. Defendants chose not to do that. They instead submitted seven pages of argument by counsel and 33 pages of exhibits. A one or two page properly prepared declaration would have saved the Court and counsel a great deal of wasted effort and time. Assertions in the argument of Defendants' counsel regarding Ms. Sauerhoff and her knowledge and activities are irrelevant. Similarly, assertions about what Plaintiff's counsel might "know" are also irrelevant. Defendants essentially assert that the claim file itself provides the necessary authentication.3 While certain types of documents are in fact self-authenticating (see FRE 902), the claim file in this case is not one of them. Authentication requires appropriate statements made under oath, either in open court or

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Defendants' Response, p. 4. 3

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in an appropriate declaration or affidavit made under oath and upon personal knowledge. Counsel is not under oath and does not claim personal knowledge of the relevant facts. It is a mystery why many of the facts asserted by counsel in Defendants' argument were not simply included in a declaration for Ms. Sauerhoff to sign in which she expressly averred that her statements reflected her own personal knowledge. But, they were not. As it stands, the record has not been authenticated as to its genuineness or its completeness. The thrust of Defendants' argument is that Plaintiff has not articulated any reason to doubt the claim file is what the Defendants say it is. The Court charged Defendants with the task of authenticating the genuineness and the completeness of the "claim file and administrative record." The burden of authentication is thus placed directly on Defendants. Until and unless Defendants first meet that burden, which they clearly have not done, Plaintiff has no burden beyond registering an appropriate objection. She has done so. Defendants have provided nothing sufficient to meet their burden. II. DISCOVERY IS NEEDED TO ASCERTAIN THE COMPLETENESS AND AUTHENTICITY OF THE CLAIM FILE/ADMINISTRATIVE RECORD. In documents quoted in their Response and attached as exhibits, Defendants have asserted that Plaintiff is and was only entitled to documents which were "reviewed and

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utilized in reaching the Company's decisions"4 or "reviewed and relied upon in the Company's determinations,"5 Thus, it appears that Defendants only provided as part of the claim file documents which were both "reviewed" and either "utilized" or "relied upon" in making their decision. Defendants continue to take the position that only those documents must be included in the claim file, but ERISA requires more. 29 CFR § 2560.503-1(h)(2)(iii) and (m)(8) require that the claims procedures for evaluating ERISA claims include the following:
"(iii) Provide that a claimant shall be provided, upon reasonable request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant's claim for benefits. Whether a document, record, or other information is relevant to a claim for benefits shall be determined by reference to paragraph (m)(8) of this section; . . . .... "(m)(8) 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; "(iii) Demonstrates compliance with the administrative processes and safeguards required pursuant paragraph (b)(5) of this section in making the benefit determination; or

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Response, p. 3, lines 18-19, GKCNA-CM0810, GKCNA-CM0941. Response, Exhibit A., pp. GKCNA-CM0811, GKCNA-CM0934. 5

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"(iv) In the case of a group health plan or a plan providing disability benefits, constitutes a statement of policy or guidance with respect to the plan concerning the denied treatment option or benefit for the claimant's diagnosis without regard to whether such advice or statement was relied upon in making the benefit determination."

Defendants' insistence that they were and are only required to include documents both reviewed and utilized or relied upon is part of what makes discovery on this issue necessary. It is also apparent that their conclusory assertion that they have provided the "complete" file cannot be accepted. Plaintiff should not be at the mercy of Defendants' conclusory assertion that the file is complete. Discovery has traditionally been allowed in part to allow litigants to test just such claims by one party or the other. If that weren't enough, consider that Defendants repeatedly asserted prior to this litigation that they had provided all policies and summary plans in this case, and then came up with a new policy once litigation commenced. These facts strongly support Plaintiff's request for additional discovery related to the authenticity and completeness of the claim file/administrative record. Plaintiff

requested much information and many documents during the claims process which Defendants refused to provide. Defendants have failed to even provide a privilege log or other log of documents falling within the requirements of ERISA regulations but not provided to Plaintiff. There is no formal discovery available during the claims process as would be allowed during a traditional administrative proceeding. If appropriate discovery is not allowed in this Court now, Plaintiff remains at the mercy of the

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Defendants to pick and choose what is included in the claims file/administrative record. Due process of law and the policies of ERISA require more. Defendants would have the Court believe that they are somehow being victimized by Plaintiff's request for discovery aimed at establishing the true and correct record in this case. But, efforts to establish the truth should be applauded. Their cries of victimization ring hollow in the face of the duplicity and deviousness inherent in suddenly springing a new insurance policy on Plaintiff and the Court only after litigation commenced. It is clear that close Court supervision and appropriate discovery are essential to assure Plaintiff has received all documents to which she is entitled. CONCLUSION For all the reasons set forth herein and in Plaintiff's previously filed Objection to Authentication of Administrative Record; Request for Discovery re Same, Plaintiff requests that the Court find the authentication filed by Defendants is not sufficient and that Plaintiff is entitled to discovery as earlier requested. Respectfully submitted, this 15th Day of September, 2008. STUART H. SANDHAUS, A.P.C.

By: s/Stuart H. Sandhaus Stuart H. Sandhaus, Esq. Los Rios Historic District 31901 Los Rios Street San Juan Capistrano, CA 92675

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GOMEZ & PETITTI, P.C. By:_s/David F. Gomez David F. Gomez, Esq. Michael J. Petitti, Jr., Esq. 2525 E. Camelback Road, Suite 860 Phoenix, Arizona 85016 Attorneys for Plaintiff CERTIFICATE OF SERVICE

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I hereby certify that on the 15th day of September, 2008, I electronically transmitted the attached document to the Clerk's office using the CM/ECF Systems for filing and transmittal of a Notice of Electronic Filing to CM/ECF registrants: Ann-Martha Andrews Kristina N. Holmstrom s/Bernice J. Pendell__________ [email protected] [email protected]

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