WILLIAM COLLINS JONES IV, AS EXECUTOR AND ADMINISTRATOR OF THE SUCCESSION OF CONNIE PORTER JONES MARABLE v. AT&T, INC., AS PLAN SPONSOR AND FIDUCIARY, ET AL CIVIL ACTION NO. 20-2337 United States District Court, E.D. Louisiana Filed April 16, 2021 Counsel Perry Roger Staub, Jr., Taggart Morton, LLC, Caleb Didriksen, Erin B. Saucier, Didriksen, Saucier & Woods, PLC, Michael Joseph Catalano, Leake & Andersson, L.L.P., New Orleans, LA, for William Collins Jones, IV. Kim M. Boyle, Phelps Dunbar, LLP, New Orleans, LA, Karleen J. Green, Phelps Dunbar, LLP, Baton Rouge, LA, for AT&T, Inc., AT&T Services, Inc. Currault, Donna Phillips, United States Magistrate Judge ORDER AND REASONS *1 Pending before me is Plaintiff William Collins Jones IV's Motion to Compel Defendants to provide substantive responses to Plaintiff's Interrogatories and Requests for Production, and to respond to the areas of inquiry in Plaintiff's proposed Rule 30(b)(6) Deposition Notice (ECF No. 22). Also before me is Defendants AT&T, Inc. and AT&T Services, Inc's Motion for Protective Order (ECF No. 23). The parties filed timely Opposition Memoranda (ECF Nos. 26, 27) and Reply Memoranda. ECF Nos. 33, 35. Having considered the record, the submissions and arguments of counsel, and the applicable law, Plaintiff's Motion to Compel is GRANTED IN PART AND DENIED IN PART and Defendants’ Motion for Protective Order is GRANTED IN PART AND DENIED IN PART. I. BACKGROUND Plaintiff William Collins Jones IV filed this suit as Executory and Administrator of the Succession of Connie Porter Jones Marable pursuant to Section 502(c) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. § 1132(c) seeking statutory penalties for Defendants’ failure to produce ERISA plan documents upon request, in violation of 29 U.S.C. § 1024(b)(4). ECF No. 1 ¶ 1, at 1. The governing Scheduling Order sets forth a June 14, 2021 discovery deadline and a July 7, 2021 motion deadline. ECF No. 17, at 1–22. Ms. Marable, a participant in one or more of Defendants’ ERISA plans, sustained injuries in a May 14, 2012 car accident for which a third party was liable. ECF No. 1, ¶¶ 4, 6, at 2. Defendants paid approximately $451,994.58 in accident-related medical benefits. Id. ¶ 9, at 3. Ms. Marable died on March 23, 2018. Id. ¶ 6, at 2. Defendants later filed suit against Plaintiff in this court (Civil Action No. 19-11297) on June 20, 2019, seeking a constructive trust or equitable lien over the settlement proceeds that Ms. Marable received from the third party responsible for the 2012 car accident as well as a Proof of Claim in Ms. Marable's succession proceeding. Id. ¶¶ 7, 9, 10, at 2–3. Shortly after Defendants filed the reimbursement proceeding (No. 19-11297), Plaintiff sent a request for plan documents by letter dated July 24, 2019, pursuant to 29 U.S.C. § 1024(b)(4) and 29 C.F.R. § 2560.503-1. Id. ¶ 14, at 4–5. During oral argument, Plaintiff stated that he did not seek the plan documents via discovery in the reimbursement litigation (No. 19-11297). Defendants produced documents in response to Plaintiff's request on August 30, 2019 and September 19, 2020. Id. ¶ 15, at 5. Plaintiff contends, however, that the responses did not include (and Defendants have still not produced) the actual plan documents corresponding to the summary plan description upon which Defendants based their claim for reimbursement. Id. ¶¶ 15, 16, at 5. Defendants disagree, arguing that the approximately 12,000 pages of documents produced in this litigation, which were the same as the documents produced in response to Plaintiff's July 24, 2019 § 1024(b)(4) request, include the governing plan documents. ECF No. 26, at 6–7. *2 In this suit, Plaintiff seeks recovery of statutory penalties, attorneys’ fees and costs. ECF No. 1 ¶¶ 19, 21, 26, 27, at 5–7. Thus, the primary issue in this litigation is whether Defendants produced the documents required by § 1024(b)(4) (as Defendants assert) or not (as Plaintiff asserts). If Defendants produced the required information, Plaintiff's claim fails. If, however, Defendants did not produce the required information, the court must determine whether statutory penalties (maximum of $110 per day) are proper. Defendants responded to the discovery, objecting in large part on the basis that the discovery relates to issues resolved by settlement in Civil Action No. 19-11297, and is irrelevant to the current issues raised by this statutory penalty case. See ECF Nos. 22-4, 22-5. Plaintiff also argues that Defendants responses to the requests for production of documents failed to identify the particular items for which the responsive documents correspond and request that the court direct Defendants to identify the particular bates number ranges of documents responsive to each request. ECF No. 22-1, at 1–3. Plaintiff also delivered a proposed Rule 30(b)(6) Deposition Notice (ECF No. 22-7), to which Defendants objected to all areas of inquiry except one. Id. at 4. Citing Fifth Circuit precedent limiting discovery to the administrative record in ERISA § 1132 actions,[1] Defendants argue that Plaintiff's discovery exceeds the permissible scope of discovery. ECF Nos. 23-1, at 2–3; 26, at 3–4. Defendant argues that Plaintiff is attempting to re-litigate and re-discover the previously settled action (Civ. No. 19-11297) rather than limit discovery to the only issue in this case (i.e., statutory penalties). ECF Nos. 23-1, at 3–4; 26, at 3. They also argue that Plaintiff's extensive discovery is not proportional to the needs of this case, which raises only the statutory penalty issue. ECF No. 26, at 2 & n.3. II. APPLICABLE LAW The relevant section of ERISA, 29 U.S.C. § 1024(b)(4), provides: The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. An administrator who fails or refuses to comply with § 1024(b)(4) may, within the court's discretion,[2] be held personally liable for up to $110 for each day after the date of refusal.[3] If the court finds that imposition of a penalty is proper, the amount of the penalty lies in the court's discretion, with awards ranging from $5 up to the $110 maximum per day and for differing time periods (i.e., until suit is filed, until an answer is filed, until the documents are delivered).[4] *3 A defendant may only be subject to statutory penalties for failure to produce documents that are clearly requested and whose production is required by 29 U.S.C. § 1024(b)(4).[5] A § 1024(b)(4) request does not, however, have to use a document's precise name, as long as the request is “sufficiently clear” to provide “notice to the plan administrator of the information” desired.[6] Courts in the Fifth Circuit typically require the claimant to show that the administrator acted in bad faith by withholding the documents or that the claimant was prejudiced in pursuing her claim by not having the requested documents before awarding penalties.[7] A. ERISA Discovery ERISA discovery is generally limited when a plaintiff seeks review of a benefits determination under § 1132(a)(1)(B).[8] Given the court's role and applicable standard of review in most cases (e.g., abuse of discretion versus de novo),[9] limiting discovery to the documents in the administrative record makes sense. The Fifth Circuit has not, however, limited discovery in ERISA cases where a plaintiff pursues an equitable remedy under other ERISA subsections, such as § 1132(a)(3) rather than § 1132(a)(1)(B). Addressing that issue in Lauga v. Applied Cleveland Holdings, Inc., No. 16-14022, 2017 WL 3867543, at *2 (E.D. La. Mar. 30, 2017), Judge Milazzo held that discovery should be allowed within Rule 26(b)(1)’s normal parameters in a non-§ 1032(a)(1)(B) case.[10] And courts have allowed discovery in cases seeking penalties for failure to produce plan documents.[11] Accordingly, discovery in this case is proper. B. Rule 26 Governs Rule 26(b)(1) provides, in pertinent part: “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The court may also consider the relevant ERISA-specific factors in addressing discovery: (1) fair and informed resolution of claims; (2) speedy, inexpensive and efficient resolution of claims; and (3) necessity of discovery.[12] *4 In addition, the court must limit the frequency or extent of discovery if it determines that: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). Under Fed. R. Civ. P. 26(c)(1): “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). A protective order may forbid discovery or specify terms for discovery. Id. 26(c)(1)(A), (B). Rule 26’s requirement of “good cause” to support a protective order places the burden upon the movant to show the necessity of its issuance, which contemplates a “ ‘particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.’ ”[13] III. ANALYSIS AND SPECIFIC DISCOVERY REQUESTS Plaintiff issued Interrogatories and Requests for Production to Defendants as well as a Rule 30(b)(6) Deposition Notice, which he argues is necessary to establish that Defendants failed to produce the required documents. ECF Nos. 22-4, 22-5, 22-7. Defendants argue that the information sought is improper given that the only issues in this suit for penalties are (1) the date and scope of Plaintiff's requests; (2) the date of Defendants’ response; and (3) the information provided by Defendants in response to the request. ECF No. 23-1, at 4. Accordingly, Defendants objected in large part to the requests, though it did produce approximately 12,000 pages of documents (id.), which Defendants confirmed at oral argument consisted of the documents previously produced in response to Plaintiff's July 24, 2019 document request. Defendants’ objections are largely proper given the limited issues in this case (e.g., whether Defendants failed to produce any document required by § 1024(b)(4)) and considering the amount in controversy, the breadth and burden of Plaintiff's requests, the likely benefit of same, and the availability of the information from other sources. While Plaintiff argues that it must discover which plan(s) or program(s) governed Marable at the relevant time to establish that Defendant failed to produce the required § 1024(b)(4) documents, Plaintiff's discovery far exceeds that necessary to establish a right to penalties. Contrary to Plaintiff's argument, Plaintiff need not establish what particular plan applied to Marable, only that Defendants failed to provide the required documents. He may establish that fact without undertaking the far-reaching discovery sought here, which discovery appears directed more to the propriety of Defendants’ settled reimbursement case rather than to whether Defendants produced the correct plan documents in response to his July 24, 2019 request. Thus, some of Plaintiff's discovery requests are proper and must be answered while Defendants are entitled to a protective order barring other items. The Court will address the discovery requests, applying Rule 26(b)(1)’s proportionality standard and considering importance of the issues at stake, the amount in controversy, the parties’ relative access to information and resources, the importance of the discovery, and whether the burden or expense of the proposed discovery outweighs its likely benefit. The Court is also mindful of its obligation to limit the extent of discovery if it determines that the discovery sought can be obtained from some other source that is more convenient, less burdensome, or less expensive or the proposed discovery is outside the scope permitted by Rule 26(b)(1). A. Interrogatories *5 The following is a summary (paraphrased) of the Interrogatories at issue (ECF No. 22-4) and the Court's decision with regard to each: identification of every individual involved in the response to Plaintiff's July 24, 2019 § 1024(b)(4) request (Int. #1). Defendants’ objections are sustained. This interrogatory does not seek information that is relevant to any claim or defense, as required by Fed. R. Civ. P. 26(b)(1). Accordingly, discovery is improper and must be limited pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii) and 26(c)(1). Defendants need not respond any further to Interrogatory No. 1. a description of the process by which Marable attained coverage under each ERISA plan or program produced by Defendants in response to Plaintiff's July 24, 2019 § 1024(b)(4) request (Int. #2). Defendants objections to this Interrogatory are overruled in part and sustained in part. Defendants are directed to explain how Marable qualified as a participant in each ERISA plan or program produced in response to Plaintiff's July 24, 2019 request. Otherwise, Defendants need not provide any further response to Interrogatory No. 2. identification of the ERISA pension and medical benefits plans and/or programs governing Marable's right to benefits at the time of her retirement (Int. #3). Defendants’ objections are sustained. This request appears duplicative insofar as Defendants have already produced the ERISA plans at issue and will explain how Marable participated in same in response to Interrogatory No. 2. Thus, this interrogatory is cumulative and seeks duplicative information. Defendants need not respond further to Interrogatory No. 3. identification of the ERISA pension and medical benefits plans and/or programs governing Marable's right to medical benefits resulting from her injuries sustained in 2012 (Int. #4). Defendants’ objections are sustained. This request appears duplicative insofar as Defendants have already produced the ERISA plans at issue and will explain how Marable participated in same in response to Interrogatory No. 2. Thus, this interrogatory is cumulative and seeks duplicative information. Defendants need not respond further to Interrogatory No. 4. identification of the specific ERISA document governing AT&T's right to subrogation/reimbursement against Marable (Int. #5). Defendants’ objections are sustained. The reimbursement case has been settled and is not at issue in this litigation. The issue here is whether Defendants produced all required § 1024(b)(4) documents in response to Plaintiff's document request. This interrogatory does not seek information that is relevant to any claim or defense, as required by Fed. R. Civ. P. 26(b)(1). Accordingly, discovery is improper and must be limited pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii) and 26(c)(1). Defendants need not respond any further to Interrogatory No. 5. description of how Marable assented to subrogation/reimbursement (Int. #6). Defendants’ objections are sustained. The subrogation/reimbursement claim is not at issue in this litigation. The issue here is whether Defendants produced all required § 1024(b)(4) documents in response to Plaintiff's document request. This interrogatory does not seek information that is relevant to any claim or defense, as required by Fed. R. Civ. P. 26(b)(1). Accordingly, discovery is improper and must be limited pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii) and 26(c)(1). *6 date Marable was furnished with a summary plan description (Int. #7). Defendants’ objections are sustained. The issue here is whether Defendants produced all required § 1024(b)(4) documents in response to Plaintiff's document request. This interrogatory does not seek information that is relevant to any claim or defense, as required by Fed. R. Civ. P. 26(b)(1). Accordingly, discovery is improper and must be limited pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii) and 26(c)(1) any amendments or changes to the recovery and subrogation provisions of the governing ERISA plans and/or programs, ranging from Marable's retirement until present (Int. #8). Defendants’ objections are sustained. The recovery and subrogation claims are not at issue in this litigation. The issue here is whether Defendants produced all required § 1024(b)(4) documents in response to Plaintiff's document request. This interrogatory does not seek information that is relevant to any claim or defense, as required by Fed. R. Civ. P. 26(b)(1). Accordingly, discovery is improper and must be limited pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii) and 26(c)(1). identification of every AT&T person who participated in the administration or pursuit of AT&T's claim for reimbursement (Int. #9). Defendants’ objections are sustained. The reimbursement case has been settled. The issue here is whether Defendants produced all required § 1024(b)(4) documents in response to Plaintiff's document request. This interrogatory does not seek information that is relevant to any claim or defense, as required by Fed. R. Civ. P. 26(b)(1). Accordingly, discovery is improper and must be limited pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii) and 26(c)(1). identification of the specific ERISA plan or program that paid Marable's benefits after the 2012 accident (Int. #10). Defendants’ objections are sustained. Marable's benefits are not at issue in this litigation. The issue here is whether Defendants produced all required § 1024(b)(4) documents in response to Plaintiff's document request. This interrogatory does not seek information that is relevant to any claim or defense, as required by Fed. R. Civ. P. 26(b)(1). Accordingly, discovery is improper and must be limited pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii) and 26(c)(1). identification of any collective bargaining agreement, enrollment materials, or other documents by which Marable became entitled to coverage under any ERISA plan and/or program (Int. #11). Defendants’ objections are overruled in part and sustained in part. Defendants must identify any bargaining agreement or “other instruments” under which the ERISA plan governing Marable's medical benefits at the relevant time was established or operated, as required by § 1024(b)(4), to the extent same were requested in Plaintiff's July 24, 2019 document request. Otherwise, Defendants need not provide any further response to Interrogatory No. 11. identification of collective bargaining agreements, enrollment materials, or any other documents by which Marable became entitled to coverage under the ERISA plan and/or program governing her right to retiree medical benefits at the time of her accident in 2012 and thereafter until her death (Int. #12). *7 Defendants’ objections are overruled in part and sustained in part. To the extent not duplicative of the Response to Interrogatory No. 11, Defendants must identify any bargaining agreement or “other instruments” under which the ERISA plan governing Marable's medical benefits at the relevant time was established or operated, as required by § 1024(b)(4), to the extent same were requested in Plaintiff's July 24, 2019 document request. Otherwise, Defendants need not provide any further response to Interrogatory No. 12. identification of AT&T communications pertaining to its response to Plaintiff's July 24, 2019, document request (Int. #13). identification of AT&T communications pertaining to the reimbursement claim and response to Plaintiff's July 24, 2019, document request (Int. #14). identification of all attorneys who provided AT&T with advice regarding Plaintiff's July 24, 2019, document request (Int. #15). description of the process for proposing and adopting amendments to each ERISA pension or retiree medical benefit plans and programs under which Marable attained coverage, from retirement to her death (Int. #16). Defendants’ objections are sustained. The issue here is whether Defendants produced all required § 1024(b)(4) documents in response to Plaintiff's document request. These interrogatories do not seek information that is relevant to any claim or defense, as required by Fed. R. Civ. P. 26(b)(1). Accordingly, discovery is improper and must be limited pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii) and 26(c)(1). Defendants need not respond any further to Interrogatory Nos. 13, 14, 15 and 16. state the dates Marable's employment with any AT&T entity, her retirement date, the last day she physically reported to work, and any accrued but unused vacation time or paid time off outstanding on her retirement date (Int. #17). Defendants objections to this Interrogatory are overruled in part and sustained in part. Defendants are directed to provide Marable's dates of employment and her retirement date only. Otherwise, Defendants need not provide any further response to Interrogatory No. 17. identification of any contract by which AT&T delegated responsibility for the drafting, maintenance, and furnishing of plan documents for each of the ERISA plans/programs in which Marable was enrolled, from the time of her retirement to her death (Int. #18). identification of errors and omissions insurance or fiduciary duty bonds on behalf of AT&T as plan sponsor (or otherwise) or AT&T Services as plan administrator (or otherwise) of the retiree health benefit plan under which Marable received benefits after her 2012 accident or the pension plan under which Marable retired (Int. #19). Defendants’ objections are sustained. The issue here is whether Defendants produced all required § 1024(b)(4) documents in response to Plaintiff's document request. These interrogatories do not seek information that is relevant to any claim or defense, as required by Fed. R. Civ. P. 26(b)(1). Accordingly, discovery is improper and must be limited pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii) and 26(c)(1). Defendants need not respond any further to Interrogatory Nos. 18 and 19. B. Requests for Production Plaintiff's Requests for Production sought documents on similar topics (ECF No. 22-5), summarized below with the Court's decision with regard to each: documents relating to Marable's employment (RFP #2): establishing the identity of her employer and dates of employment; evidencing her years of service; *8 evidencing her retirement; evidencing the entity employing her at retirement and length of service; evidencing the last day she physically reported to work; evidencing her last paycheck; and evidencing accrued but unused vacation or paid time off at retirement. documents reflecting Marable's employer for 1990 through 2001 (RFP #10). documents or records pertaining in any way to Marable's employment, including her employer/s, dates of employment, and date of retirement (RFP #18). Defendants’ objections to this Request for Production are overruled in part and sustained in part. Plaintiff's request for all documents is unduly burdensome insofar as it would require production of cumulative and duplicative documents, which is not proper under Rule 26. Defendants are directed to either identify the documents (by bates number) if already produced or produce the relevant documents that reflect the identity of the entity employing Marable under which she became entitled to participate in the ERISA programs produced by Defendants in response to Plaintiff's July 24, 2019 document request. Otherwise, Defendants need not provide any further response to Request for Production Nos. 2, 10 and 18. documents relating to the handling or response to Plaintiff's July 24, 2019 request (RFP #3) identifying all individuals or entities that participated in the response to Plaintiff's July 24, 2019 request (RFP #4). documents by which the Bellsouth Retiree Medical Assistance Plan delegated any plan responsibilities, including claims processing, claim decision making, appeals, pursuing subrogation and recovery decisions, and responding to plan document requests (RFP #13). correspondence pertaining to Plaintiff's ERISA July 24, 2019 request (RFP #22). contracts governing the responsibility of drafting, maintaining, and furnishing plan documents for each ERISA plan and pension or medical benefit program in which Marable was enrolled, from the time of her retirement to her death (RFP #23). Defendants’ objections are sustained. The issue here is whether Defendants produced all required § 1024(b)(4) documents in response to Plaintiff's document request. This request does not seek documents that are relevant to any claim or defense, as required by Fed. R. Civ. P. 26(b)(1). Accordingly, the discovery request is improper and must be limited pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii) and 26(c)(1). Defendants need not respond any further to Request for Production Nos. 3, 4, 13, 22 and 23. plan documents (including collective bargaining agreement, trust agreement, Summary Plan Description, and all amendments thereto) for each pension or medical benefit plan and/or program under which she received benefits because of injuries she sustained in 2012 (RFP #5). plan documents (including collective bargaining agreement, trust agreement, Summary Plan Description, and all amendments thereto) for each pension or medical benefit plan and/or program in which she was enrolled at the time of her retirement (RFP #6). *9 plan documents (including collective bargaining agreement, trust agreement, Summary Plan Description, and all amendments thereto) for the pension or medical benefit plan and/or program that created AT&T's right to reimbursement (RFP #7). the AT&T Umbrella Benefit Plan No. 1, as originally created in 2001 (including collective bargaining agreement, trust agreement, Summary Plan Description, and all amendments thereto through the last date of Marable's receipt of medical benefits), in the form in which it existed when originally created, the act or agreement by which the AT&T Umbrella Benefit Plan No. 1 was created, and all amendments thereto up to the date of Marable's last receipt of benefits (RFP #8). plan documents (including collective bargaining agreement, trust agreement, Summary Plan Description, and all amendments thereto through the last date of Marable's receipt of medical benefits) that provide the basis for the Summary Plan Description for the BellSouth Retiree Medical Assistance Plan, in the form in which it existed at the time of retirement, and at the time the application for/receipt of benefits because of injuries she sustained in 2012 (RFP #11). documents by which the SBC Umbrella Benefit Plan No. 1 was renamed the AT&T Umbrella Benefit Plan # 1, including meeting minutes by which such renaming occurred and other documentation establishing the process by which the renaming was approved, and the plan document describing the amendment process used to effectuate such renaming (RFP #12). meeting minutes at which the name of the BellSouth Retiree Medical Assistance Plan was changed to the AT&T Southeast Eligible Former Employee Medical Program, and other documentation establishing the process by which the renaming was approved, and plan documents that describes the amendment process used to effectuate such renaming (RFP #14). documents that identify or reflect the structure of each plan or program under which Marable received medical coverage at any point from her retirement to her death, including status as a MEWA or not, committee structure, decision-making structure, identity of the participating union or employer or collective bargaining agreement through which Marable attained eligibility at retirement for post-retirement health benefits and any contractual documents between that entity and the Plan, as well as any contractual documents by which AT&T has delegated any of its obligations under ERISA, whether ministerial or fiduciary in nature (RFP #17). documents or records that evidence Marable's entitlement to coverage under each ERISA plan in which she was enrolled, from the time of her retirement to her death (RFP #25). Defendants’ objections are overruled in part and sustained in part. Defendants must produce “the latest updated summary[ ] plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated,” as required by § 1024(b)(4), to the extent same were requested in Plaintiff's July 24, 2019 document request and not previously produced in this litigation. Otherwise, Defendants need not provide any further response to Request for Production Nos. 5, 6, 7, 8, 11, 12, 14, 17, and 25. *10 documents that contain the right of reimbursement/subrogation language that Defendant relied on for reimbursement/subrogation (RFP #9). documents by which the BellSouth Retiree Medical Assistance plan hired or contracted with outside persons or entities for the identification of claims subject to subrogation or recovery rights (RFP #15). documents reflecting or implementing AT&T's decision, or the decision of any person or entity acting on its behalf, to pursue recovery of benefits paid to Marable because of her 2012 accident, including any approval of the pursuit of this action (RFP #16). entire administrative record generated in connection with Marable's claim/s for benefits because of injuries she sustained in 2012, including all records of correspondence between any parties pertaining in any way to Marable's claim (RFP #19). the entire administrative record generated in connection with AT&T's claim for reimbursement against Marable's Estate, including all records of correspondence between any parties pertaining in any way to Marable's original claim and AT&T's claim for reimbursement against her estate (RFP # 20). correspondence pertaining to Marable or her claim for benefits resulting from injuries she sustained in 2012, and/or AT&T's claim for reimbursement against her estate (RFP #21). documents that reflect or describe the administrative structure of the ERISA plan and/or program that governed AT&T's claim for reimbursement against the estate of Marable, including applicable committees and their membership, responsibility for plan decisions as to eligibility for benefits, and any guidelines or internal policies that govern the decision-making process for the initiation of actions for reimbursement against plan participants or beneficiaries (RFP #24). documents or records that evidence Marable's assent to be bound by the reimbursement/subrogation provision that created AT&T's right to reimbursement for benefits paid because of injuries she sustained in 2012 (RFP #26). Defendants’ objections are sustained. Defendants’ settled reimbursement demand and Marable's benefits are not at issue in this litigation. The issue here is whether Defendants produced all required § 1024(b)(4) documents in response to Plaintiff's document request. Request for Production Nos. 9, 15, 16, 19, 20, 21, 24 and 26 do not seek information that is relevant to any claim or defense, as required by Fed. R. Civ. P. 26(b)(1). Accordingly, these discovery requests are improper and discovery must be limited pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii) and 26(c)(1). the contract of administration with Blue Cross of Illinois applicable to the benefit product in which Marable participated (RFP #28). any insurance policy that provided any stop loss coverage for medical benefit payments made to or on behalf of Marable because of her accident in 2012 (RFP #29). Defendants’ objections are sustained. The issue here is whether Defendants produced all required § 1024(b)(4) documents in response to Plaintiff's document request. Requests for Production Nos. 28 and 29 do not seek information that is relevant to any claim or defense, as required by Fed. R. Civ. P. 26(b)(1). Accordingly, discovery is improper and must be limited pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii) and 26(c)(1). Defendants need not respond any further to Request for Production Nos. 28 and 29. C. Rule 30(b)(6) Notice *11 Plaintiff's Rule 30(b)(6) Deposition Notice identified 16 categories for inquiry, which mirror the Interrogatories and Requests for Production of Documents. ECF No. 22-7. In summary, the designated areas of inquiry are: 1) The details of Connie Marable's employment at AT&T and any affiliate of AT&T, including the entity by whom she was employed and the dates of her employment, last day worked and retirement date. 2) The identification of any ERISA plan or program that governed Connie Marable's right to medical benefits at the time of her retirement from AT&T or an AT&T affiliate from which she retired, including the reimbursement provisions of that plan and the process for making amendments to that plan; 3) The identification and preparation, amendment and maintenance of all plan documents addressing the possible entitlement of Connie Marable to post-retirement health benefits at all time periods subsequent to 1995, including the drafting and maintenance of plan documents, corresponding summary plan descriptions, and applicable collective bargaining agreements for each such ERISA plan or program, including without limitation all such documents attached to or identified in AT&T's Complaint or Amended Complaint filed in Civil Action 19-11297 in the United States District Court for the Eastern District of Louisiana. 4) The structure of each ERISA plan or program identified in Paragraph 3 above, including status as a MEWA or not, committee structure, decision-making structure, identity of the participating union or employer through which Connie Marable attained eligibility and any contractual documents between that entity and the plan, as well as any contractual documents by which AT&T has delegated any of its obligations under ERISA, whether ministerial or fiduciary in nature; 5) The administrative structure of each ERISA plan or program attached to or identified in AT&T's Complaint or Amended Complaint filed in Civil Action 19-11297 in the United States District Court for the Eastern District of Louisiana, including applicable committees and their membership, responsibility for Plan decisions as to eligibility or benefits, and as to the initiation of actions for reimbursement against plan participants or beneficiaries; 6) Any and all instances in which AT&T, or any person or entity acting on its behalf or at its direction, has attempted to enforce the reimbursement provision made subject of this litigation against a retired former employee; 7) The responsibility for the maintenance of plan records; 8) Any contract governing the responsibility for maintenance of plan records; 9) The terms of any collective bargaining agreement under which Connie Marable attained eligibility in each ERISA plan or program attached to or identified in AT&T's Complaint or Amended Complaint filed in Civil Action 19-11297 in the United States District Court for the Eastern District of Louisiana; 10) Any amendments made to the ERISA plan or program that governed Connie Marable's right to post-retirement health benefits at the time of her retirement, ranging from the date of Connie Marable's retirement until the date of her claim for benefits; 11) The specific ERISA plan or program that you contend provided post-retirement health benefits to Connie Marable for injuries sustained in 2012, and how she became entitled to benefits under that plan or program; *12 12) The identity and role of inside and/or outside counsel in the Plan's decision to seek reimbursement of post-retirement health benefits received by Connie Marable as a result of injuries Marable sustained in 2012 and the ERISA plan identified as the source of any such reimbursement right; 13) Communications with counsel regarding the decision by AT&T or AT&T Services to seek reimbursement of post-retirement health benefits paid on behalf of Connie Marable; 14) The administrative record generated in the processing and fulfillment of Connie Marable's initial claim for benefits, including any correspondence, whether internal or between AT&T and a third party, related to her entitlement to benefits and the payment of those benefits; 15) The administrative record generated in association with AT&T's claim for reimbursement against the Succession of Connie Marable, including any correspondence, whether internal or between AT&T and a third party, that in any way pertains to or reflects the decision-making process underlying the initiation of the reimbursement claim filed in Civil Action 19-11297 in the United States District Court for the Eastern District of Louisiana. 16) AT&T's prior responses to Defendant's request for plan documents. Again, the issue here is whether Defendants produced all required § 1024(b)(4) documents in response to Plaintiff's July 24, 2019 document request. The reasons for Defendants’ filing of the now settled reimbursement claim and/or any benefits previously paid to Marable are not relevant to this issue. Accordingly, for the reasons previously stated, topic Nos. 11 and 16 are appropriate areas of inquiry as same relate to the claims or defenses in this case, and Defendants must designate a witness to testify regarding same. Plaintiff's areas of inquiry Nos. 1-10 and 12-15, however, do not seek information that is relevant to his penalty claim or any defense in this case, as required by Fed. R. Civ. P. 26(b)(1). Accordingly, topic Nos. 1-10 and 12-15 are not proper areas of inquiry. D. Requests for Fees and Costs Given the fact-specific resolution required for the issues raised herein, the Court finds that each party was substantially justified in their positions. Accordingly, the Court declines to award either side fees and costs incurred in connection with these motions, in accordance with Rule 37(a)(5)(C). IV. CONCLUSION Accordingly, for the foregoing reasons, IT IS ORDERED that Plaintiff's Motion to Compel (ECF No. 22) is GRANTED IN PART AND DENIED IN PART as stated herein; IT IS FURTHER ORDERED that Defendants’ Motion for Protective Order (ECF No. 23) is GRANTED IN PART AND DENIED IN PART as stated herein; New Orleans, Louisiana, this 15th day of April, 2021. Footnotes [1] Crosby v. La. Health Servs. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011); Vega v. Nat'l Life Ins. Servs., Inc., 188 F.3d 287, 299–300 (5th Cir. 1999), abrogated on other grounds by Met. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). [2] See Kidder v. Aetna Life Ins. Co., No. 14-665, 2016 WL 1241549, at *9 (W.D. Tex. Mar. 28, 2016) (citing Paris v. Profit Sharing Plan for Emp. of Howard B. Wolf, Inc., 637 F.2d 357, 362 (5th Cir. 1981)) (“The imposition of a statutory penalty [for violations of § 1024(b)(4)] is within the discretion of the district court.”); see also Theriot v. Bldg. Trades United Pension Trust Fund, No. 18-10250, 2019 WL 5693045, at *14 (E.D. La. Nov. 4, 2019), reconsideration denied, 2020 WL 474960 (Jan. 29, 2020). [3] Although § 1132(c)(1)(B) specifies a maximum $100 per day penalty, the maximum penalty was increased in 1990 to $110 per day. 29 C.F.R. § 2575.502c-1; see Murphy v. Int'l Painters & Allied Trade Indus. Pension Fund, No. 13-2870, 2015 WL 13746658 (S.D. W. Va. Apr. 6, 2015) (citing 29 § U.S.C. 1132(c)(1); 29 C.F.R. § 2575.502c-1). [4] Murphy, 2015 WL 13746658, at *19 (citing cases). [5] Theriot, 2019 WL 5693045, *11 (citing Van Bael v. United Healthcare Servs., Inc., No. 18-6873, 2019 WL 160183, at *3 (E.D. La. Jan. 10, 2019)). [6] Theriot, 2019 WL 5693045, at *9 (citing Van Bael, 2019 WL 160183, *3; Center for Restorative Breast Surgery, LLC v. Humana Health Benefit Plan of La., Inc., No. 10-4346, 2015 WL 4394034, at *17 (E.D. La. July 15, 2015)). [7] See Godwin v. Sun Life Assur. Co. of Can., 980 F.2d 323, 327 (5th Cir. 1992) (holding that “prejudice is one factor a district court may consider in exercising its discretion”); Theriot, 2019 WL 5693045, at *14 (citing cases). [8] Crosby v. La. Health Servs. & Indem. Co., 647 F.3d 258, 260 (5th Cir. 2011). [9] Id. at 260. [10] See also Manuel v. Turner Indus. Grp., LLC, No. 14-599, 2021 WL 1187072, *4 (M.D. La. Mar. 29, 2021); Malbrough v. Kanawha Ins. Co., 943 F. Supp. 2d 684, 691–92 (W.D. La. 2013) (citing cases allowing discovery in § 1132(a)(3) cases). [11] See Boyd v. Sysco Corp., No. 13-00599, 2015 WL 5178151, *4 n.3 (D.S.C. Sept. 3, 2015) (noting that court addressed plaintiff's frustration in being unable to obtain the plan documents by taking the “unusual” step of allowing limited discovery in the ERISA case). [12] Doe v. Intermountain Healthcare, Inc., No. 18-807, 2020 WL 3489646, at *2 (D. Utah June 26, 2020). [13] In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).