Carleton E. Averill, II v. Gleaner Life Insurance Society, et al. N.D.Ohio, Western Division 626 F. Supp. 2d 756; 2009 U.S. Dist. LEXIS 52177, June 19, 2009

Take Away: In this case, a motion to compel was denied because the drafter of the original discovery request did not specifically include communications between certain board members and third parties. A reasonable and vital "safety net" is to make it a routine part of discovery to ask for the communications between ALL decision-makers and ALL others relative to your issue.  

In this case, a retired insurance agent sued his former employer regarding the basis for calculating retirement benefits in a partially terminated retirement plan. It would be an essential part of discovery, therefore, to know of communications that occured relative to the termination of the retirement plan and the formation of the terms on which the plan would be ended. (For our purposes, no more will be said about the underlying breach of contract dispute).

To that end, the Plaintiff's attorney drafted the following requests for discovery regarding termination of the plan (the GSSP) and a particular plan amendment having to do with a crucial interest rate calculation (Amendment No. 2005-1):

REQUEST FOR PRODUCTION NO. 1:

Produce all documents relating or referring to or evidencing communication related to communication between or among Gleaner Board members or officers related to the termination of the GSSP.

REQUEST FOR PRODUCTION NO. 2:

Produce all documents relating or referring to or evidencing communication between or among Gleaner Board members or officers related to Amendment No. 2005-1 to the GSSP.

The insurance company made a timely response, in which it stated that no documents existed that were responsive to these requests.

Later events brought to the Plaintiff's attention a chain of e-mails between an outside consultant and several board members on the essential topic of the interest rate to be used in this plan termination. The plaintiff asked the Court for a Motion to Compel, based on the Defendant's breach of discovery obligations by failing to produce these emails.

The Court held, in denying the Motion to Compel, that Plaintiff's request was simply too narrow to have included communications between the Board and third-parties such as the consultant, who was not a Board member. The phrasing "between and among" was highlighted by the Court as reasonably applying only to intra-Board communications and not to communications with outsiders. The Court noted that the Plaintiff had every opportunity to draft a wider request, but did not.

The first and obvious lesson from this case is the need to imagine all of the communications that might take place during the formation of a decision, and to draft a request wide enough to cover the potential sources. Are there, however, other ways - particularly with reference to the opportunities afforded by e-discovery - to prevent such mistakes as these?

It can become a routine part of your e-discovery requests that you ask for the production of "any and all emails pertaining to the GSSP and/or Amendment No. 2005-1" from each of the important decision makers during a reasonable period when the actions under litigation were being taken. A solid argument can be made that, during the time in which a decision maker is formulating an important business decision, there may be many influential inputs and discussions that could not be anticipated well enough to draft specific requests. A record of the email conversations during the time of action certainly may reveal relevant information used by each specific decisionmaker.

If such a routine request were a part of the Plaintiff's usual production requests in this case, the important conversations between Board members and consultant would not have been missed. And, although a slight drafting change would have served the same purpose, it is a valuable 'safety net' to have a routine request for all decision-maker emails as back up for your specifically drafted requests.