The 11^th Circuit recently considered an appeal of an ERISA benefit claim in Rubin v. Life Ins. Co. of N. Am., No. 24-10433, 2025 LX 226141 (11th Cir. Mar. 4, 2025).  That case reminded of the danger of not being permitted any discovery on your ERISA case during litigation if the arbitrary and capricious standard of review is applicable.  In fact, it even seems to suggest that there should be an effort to conduct that discovery during the claim process or seek a remand back to the insurer if discovery is needed.

Ms. Rubin was disabled from performing her occupation due to depression and anxiety.  She filed a claim for short-term disability benefits. Her doctor completed a questionnaire saying she was disabled but allegedly did not provide any information on why she was disabled. The claim was denied. So, Ms. Rubin obtained information from her doctor again and provided that to the insurer with an appeal. However, it hired its own doctor who said there was no proof of disability. The insurer still denied the claim.  Ms. Rubin obtained counsel and filed a lawsuit.

Many clients and many attorneys alike believe that in litigation, full discovery will be permitted, and the truth will come out.  Many times, attorneys have informed their own clients that they can wait to hire counsel until it is time to file a lawsuit. As many clients find out, and as Ms. Rubin found out, there may be no discovery in litigation and waiting to hire counsel will pose a disadvantage. Her request for discovery was denied by the magistrate judge. Eventually the case was dismissed by the court.

On appeal to the 11^th Circuit, that court affirmed the lower court ruling despite various different arguments asserted by counsel. Ms. Rubin felt like this was a "railroad" with no way to turn the train around. So how can her request for discovery and the search for the truth of the matter be barred like this?

It all starts with the standard of review contained in the plan document. If the arbitrary and capricious standard of review controls, then a 6-step process is required to be followed. That process boils down to an examination of whether the insurer's decision has at least some substantial evidence supporting it. If it does, the court may evaluate a conflict of interest, but unless there is evidence that the conflict impacted the decision, some substantial evidence is enough for the insurer to win. Further, that process is limited to a review of the claim record composed by the insurer.

Ms. Rubin still contended in her 11^th Circuit appeal that the magistrate judge should have permitted some discovery because the insurer acted under a conflict of interest. The 11^th Circuit slapped that down stating “… we have held previously that in a case governed by arbitrary and capricious review, a plaintiff who wants to introduce information outside the administrative record should request that the lower court remand the claim to the administrator for consideration of all purportedly relevant evidence.” Id. at *18. That statement relied on the case Harris v. Lincoln Nat'l Life Ins. Co., 42 F.4th 1292 (11th Cir. 2022).  That case, however, involved a de novo standard of review and found the lower court in error for not allowing discovery.  The lower court limited its review to the claim record composed by the insurer and excluded the "post-denial evidence" which Mr. Harris had submitted. The 11^th Circuit reversed the district court for that, as it should have permitted discovery given de novo review controlled.

The Harris case did quote prior cases including Jett v. Blue Cross Blue Shield of Alabama and Shannon v. Jack Eckerd Corp., which discussed that the court's review under the arbitrary and capricious standard was to look at the "facts as known to the administrator at the time the decision was made." However, Harris did not rely on those cases. Those cases also do not say “just the facts placed in the claim record by the insurer” are alone considered by the court. The record is all facts known to the insurer.

The question remains then, how is discovery conducted during the claim process as to the insurer's conflict of interest? Does a claimant wanting discovery have to file suit first and then seek a remand? Then will she be able to seek discovery from the insurer during the claim process? As a practical matter, I have attempted to obtain that very discovery from the insurer during the claim process and it has been refused 100% of the time.  So, will a remand further delay the case remedy? Is this the efficient and expedient resolution of claims?

Clearly there are a number of strategy decisions that must be made during the claim process if the arbitrary and capricious standard of review controls.  Otherwise, there may be no discovery.