Free Response - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Telephone: (602) 262-5311 Ann-Martha Andrews, State Bar No. 012616 Direct Dial: (602) 262-5707 Direct Fax: (602) 734-3764 EMail: [email protected] Kristina N. Holmstrom, State Bar No. 023384 Direct Dial: (602) 262-5762 Direct Fax: (602) 734-3875 EMail: [email protected] Attorneys for Defendants

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Constance Ann Maynard, Plaintiff, vs. CNA Group Life Assurance Company, an Illinois Corporation; Continental Casualty Company, an Illinois Corporation; Hewitt Associates, LLC, an Illinois Limited Liability Company; Hewitt Long Term Disability Plan, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CIV-04-00525-PHX-RCB RESPONSE TO PLAINTIFF'S OBJECTION TO DEFENDANTS' AUTHENTICATION OF THE CLAIM FILE AND REQUEST FOR ADDITIONAL DISCOVERY

The Court's June 30, 2008 is clear ­ the defendants were to authenticate the claim file and administrative record. In compliance with the Court's Order and Federal Rule of Evidence 901, the defendants have done so. The Court should disregard the plaintiff's objection and request for additional discovery because the plaintiff has what she asked for ­ verification that she has the complete and accurate claim file on her claim. I. THE DEFENDANTS HAVE COMPLIED WITH THE COURT'S ORDER. This lawsuit has been ongoing since March 16, 2004. The defendants initially disclosed the claim file to Maynard on July 8, 2004. After extensive briefing on the merits of this ERISA case, and then remand after a Circuit appeal, the parties appeared before this Court on June 30, 2008 for a scheduling conference. During the conference, Maynard asked that the defendants be ordered to authenticate the claim file. Although the request was unusual given that both parties had been utilizing the claim file for some years, the defendants voluntarily agreed to authenticate the file. The defendants
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subsequently submitted a declaration that satisfies both the Court's Order and Rule 901. Maynard has not articulated any reason to doubt that the claim file is what the defendants say it is. A. The Court's Order Required Authentication, Which the Defendants Have Provided.

After defense counsel verbally agreed at the status conference to authenticate the claim file, the Court issued the following order memorializing the understanding:

(Dkt. #127.) 1 Evidence Rule 901, which governs authentication, "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). The rule expressly contemplates that the burden may be satisfied by "[t]estimony [from a witness with knowledge] that a matter is what it is claimed to be." Fed. R. Evid. 901(b)(1). The authenticating witness can be anyone "who wrote it, signed it, used it, or saw others do so." Orr v. Bank of Am., 285 F.3d 764, 774 n.8 (9th Cir. 2002) (emphasis added) (quoting 31 WRIGHT & GOLD, FEDERAL PRACTICE & PROCEDURE: EVIDENCE § 7106, 43 (2000)). The defendants submitted a declaration from Cheryl Sauerhoff, the Appeals Team Leader who handled Maynard's appeal. (GKCNA-CM0962 through 66.) In denying Maynard's appeal, Ms. Sauerhoff expressly considered all the documents in Maynard's claim file ­ meaning that she used the documents being authenticated (the claim file). Id. Indeed, she wrote and signed certain documents ­ such as the appeal denial letter. (Exhibit A at GKCNA-CM0962 through 66.)2

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The defendants later sought and received an extension of time to submit the declaration. (Dkt. # 129.)

Exhibit A comprises various documents from the claim file, referred to further by their Bates number.
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Even after Maynard's appeal was denied (and the administrative record closed) Ms. Sauerhoff continued to correspond with Maynard's attorneys. (See, e.g., Exhibit A at GKCNA-CM0941, 934, 822-34, 802-03, 787-88) In doing so, Ms. Sauerhoff reviewed the claim file and specifically advised Maynard's attorneys (several times) and Maynard's former employer that Maynard had been provided a complete copy of everything utilized in the claim evaluation. (Id.) Immediately after Maynard's appeal was denied, Maynard's attorney sent a letter demanding additional information. Ms. Sauerhoff promptly responded by sending the entire claim file and advising that Maynard had previously been provided with most of the information he had requested. (Exhibit A at GKCNA-CM0941.) The only documents that had not been previously produced were the documents considered on the appeal, which did not exist when the claim file was previously sent to Maynard:

In April 2002, Ms. Sauerhoff reiterated that Maynard had received her entire claim file.

(Exhibit A at GKCNA-CM0934.)
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Then in January 2003, Ms. Sauerhoff sent a letter to Maynard's former employer, Hewitt, to whom Maynard's attorney had complained that he had not received the complete claim file. (Exhibit A at GKCNA-CM0802 through 803.)

Ms. Sauerhoff then chronicled and enclosed the significant correspondence that CNA (oftentimes Ms. Sauerhoff herself) had with Maynard's attorney since the denial letter in June 2001. (Exhibit A at GKCNA-CM0804 through 813.) It is disingenuous for plaintiff's counsel ­ who corresponded directly with Ms. Sauerhoff specifically regarding the completeness of the claim file ­ to now argue that discovery is necessary to authenticate the claim file. It is equally disingenuous to criticize the declaration because it supposedly does not explain Ms. Sauerhoff's connection with the claim file or whether she was employed by company during the claim. (Pl.'s Obj., at 3.) The claim file establishes that Maynard and her attorneys already know the answer to these questions. 3 Ms. Sauerhoff used, wrote, and signed documents in the claim file during and after her assessment of Maynard's appeal. Under established Ninth Circuit case law, Ms. Sauerhoff is indisputably qualified to authenticate the claim file. Orr, 285 F.3d at 774 n.8.

Ms. Sauerhoff worked for CNA during the claim; she now works for The Hartford. In 2003, Hartford purchased 100% of the issued and outstanding stock of CNA Group Life Assurance Company ("CNAGLA") from Continental Casualty Company and Continental Assurance Company. As part of this transaction, CNAGLA agreed to reinsure 100% of the liabilities arising under the terms of the policies purchased, including the one at issue in this case. CNAGLA also agreed to administer the business it reinsures in connection with the transaction. After a name change in December 2003, and a merger in December 2006, Hartford Life and Accident Insurance Company is the surviving entity. The plaintiff is aware of this, and sought and obtained permission to add The Hartford as a defendant on this basis in December 2005. (Dkt. # 105, 107). Case 2:04-cv-00525-RCB Document 138 Filed 09/05/2008 Page 4 of 8

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Maynard Mistakenly Demands Foundation for the Business Records Exception.

Maynard objects that Ms. Sauerhoff's declaration does not establish that the claim file is subject to the "business records exception" to the hearsay rule. (Pl.'s Obj., at 2-3.) This is an unusual argument. Because this is an ERISA case, Maynard must rely solely on the claim file to try to recover benefits. A hearsay objection to the claim file (which could render her sole evidence inadmissible) is nonsensical. At any rate, Maynard is correct that Ms. Sauerhoff's declaration does not lay foundation for the hearsay exception. See Fed. R. Civ. P. 803(6). But that is not what the Court ordered. The Court ordered the defendants to authenticate the claim file, which the defendants did. There should be no question about whether the claim file meets the business records exception, however, as Ms. Sauerhoff has already submitted affidavits laying this foundation. In February and June 2005, the defendants submitted two affidavits from Ms. Sauerhoff establishing that the portions of the claim file attached as exhibits to the summary judgment motions were business records within the meaning of the hearsay exception. (Dkt. # 58, 73.) 4 Since Ms. Sauerhoff has not yet laid foundation for the admissibility of the entire claim file, if Maynard is still concerned that the defendants will object to the admissibility of the claim file on grounds that it does not meet the business records exception (they will not), the defendants will be happy to provide a supplemental declaration laying that foundation. C. The Declaration Need Not Speak to the "Administrative Record," Which is a Legal Term of Art.

Maynard also objects to the fact that Ms. Sauerhoff's declaration does not speak directly to the completeness of the "administrative record." This objection is without merit. This Court will decide this case based upon the administrative record ­ which can be different from the claim file. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955,
The Court later denied Maynard's motion to strike the defendants' exhibits based on Ms. Sauerhoff's first affidavit. (Dkt. # 60 at 3-4, 14.) Case 2:04-cv-00525-RCB Document 138 Filed 09/05/2008 Page 5 of 8
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974 (9th Cir. 2007) (ordering the district court to consider an affidavit submitted by the insured's treating physician). Indeed, in this case the parties have already briefed their dispute regarding the scope of the administrative record. Specifically, the claim file includes information that Maynard continued to submit after her appeal was denied. It is the defendants' position that these documents cannot be considered part of the administrative record, despite being part of the claim file, because they were not before The Hartford at the time it rendered its final decision. See, e.g., Alford v. Dch Found. Group Long-Term Disability Plan, 311 F.3d 955, 959 (9th Cir. 2002) (evidence submitted to the insurer after it rendered its final benefit determination was not part of the administrative record). Maynard disputes this. (See Dkt. # 92 (CNA's motion to strike documents post-dating the appeal denial) and Dkt. # 97 (Maynard's response).) Although the Court's order said that The Hartford should authenticate the "administrative record," it is the province of the Court to determine what the "complete" administrative record is. Ms. Sauerhoff, an appellate specialist, is only able to opine as to the completeness of the claim file that was produced to the plaintiff ­ which she did. To the extent that the administrative record consists of documents from the claim file, Ms. Sauerhoff's declaration establishes that the claim file is authentic and complete. To the extent the parties have a dispute over what constitutes the "administrative record" for purposes of what documents this Court should appropriately consider in determining the merits of the case, the issue is not properly resolved in Ms. Sauerhoff's declaration. II. MAYNARD HAS USED THE CLAIM FILE FOR YEARS IN HER OWN BRIEFS. As set forth in section I.A, Maynard and her attorneys have repeatedly been advised that they have complete copies of the claim file and have been provided with all materials used in deciding Maynard's claim. Although Maynard scrapes together a panoply of reasons to attack Ms. Sauerhoff's declaration, she never actually articulates what is missing from or inaccurate in the claim file, or any reason to believe that anything is missing. Indeed, Maynard has used the claim file documents extensively to brief the
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merits of her case and appeal for years. (See, e.g., Dkt. # 81 (documents from the claim file were used to support Maynard's opposition to the defendants' motion for summary judgment).) It is too late in the game to seek discovery based on phantom complaints. The reality is that Maynard's "objection" is a thinly-veiled attempt to get additional discovery from The Hartford, thereby increasing the burden and expense of this case. 5 III. CONCLUSION. The defendants provided a declaration to authenticate the claim file, even though no legitimate challenge to the claim file's authenticity has been made in over four years of litigation. In addition to her unfounded statement that she has no idea how Ms. Sauerhoff became familiar with her claim, Maynard objects because the defendants did lay foundation for the hearsay objection, which they were not ordered to do. Maynard's objection is without merit. No discovery is needed to provide the plaintiff what she asked for ­ verification that she has the entire claim file regarding her claim. DATED this 5th day of September, 2008. LEWIS AND ROCA LLP

By /s/ Ann-Martha Andrews Ann-Martha Andrews Kristina N. Holmstrom Attorneys for Defendants

The Court has already granted the plaintiff's request for substantial discovery on the issues that the Court of Appeals noted in its order granting remand. (Dkt. #127.) Case 2:04-cv-00525-RCB Document 138 Filed 09/05/2008 Page 7 of 8

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CERTIFICATE OF SERVICE I hereby certify that on September 5, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the following CM/ECF registrants: David F. Gomez, Esq. Michael J. Petitti, Jr. Gomez & Petitti, P.C. 2525 East Camelback Road Suite 860 Phoenix, Arizona 85016 Attorneys for Plaintiff Stuart H. Sandhaus, Esq. Stuart H. Sandhaus, APC Los Rios Historic District 31901 Los Rios Street San Juan Capistrano, California 92675 Attorneys for Plaintiff

s/ Patricia Daigle An Employee of Lewis and Roca LLP

Document 138

Filed 09/05/2008

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