The opinion of the court was delivered by: William M. Skretny United States District Judge
The Plaintiffs in this ERISA action are seeking declaratory and monetary relief against Defendants National Grid and Niagara Mohawk. All Plaintiffs were first employed by Niagara Mohawk, which merged in or about January 2002 with National Grid, their current or most recent employer. Plaintiffs allege that National Grid unilaterally reduced the benefits available to them under their Employee Group Term Life Insurance Plan ("Plan A") and that, through their participation in Plan A, they were charged an excessive rate for supplementary insurance, the proceeds from which were not used exclusively for their benefit.
Pending before this Court is Plaintiffs' third Motion to Compel pursuant to FED. R. CIV. P. 37(a). (Docket No. 32). Plaintiffs' seek an order: (1) compelling Defendant National Grid to comply with a previous Discovery Order ("the previous Order") granting Plaintiffs' Second Motion to Compel; (2) compelling additional discovery; and (3) imposing sanctions, costs and attorney's fees.
The Second Motion to Compel contained, inter alia, a request for the production of the original plan documents for Plan A, as well as all amendments, proposed amendments and/or recommendations to change, terminate or otherwise modify Plan A. National Grid produced a 1992 document which ostensibly was only a summary of Plan A. Plaintiffs sought the original plan documents so that any changes in the plan throughout the years could be analyzed. The Honorable John T. Elfvin found this to be relevant to the claim of improper unilateral change and ordered that it be produced. Judge Elfvin also found that a history of premium payments was also relevant (to a determination of whether or not the payments were used for the benefit of Plan A participants) and ordered that it be produced. The pertinent part of the previous Order found as follows:
After due consideration, the Court hereby finds that plaintiffs have shown good cause that the requested documents which are the subject of the instant motion are "relevant to the subject matter involved in the action" (F.R.Cv.P. 26(b)(1)) and the Court will therefore order that they be produced. Further, defendants have not satisfied the Court that the production of the requested documents would be unduly burdensome or expensive.
(Docket No. 31, p. 4). National Grid was directed to respond to the following Supplemental Document Requests:
1. A copy of each and every Policy and/or Plan document governing "Plan A" and/or Group Term life insurance for full-time non-represented employees from the inception of Plan A in 1972, including a copy of each and every Amendment made thereto between Plan A's inception in 1972 to the present.
7. Copies of all proposed Amendments and/or recommendations to change, modify and/or terminate "Plan A" or Niagara Mohawk's Group Term Life Insurance Plan, including the recommendations made by William Dowd to amend Plan A, and which were referred to in Defendant's Interrogatory Response No. 5.
9. Copies of all Resolutions adopted by the Board of Directors of Niagara Mohawk Power Company, Inc. or Niagara Mohawk Holdings, Inc. and/or all of their successors or subsidiaries wherein "Plan A" or was amended or terminated.
10. To the extent not already requested or provided, copies of all "Plan Materials" as defined in the Niagara Mohawk Power Corporation Group Term Life Insurance Plan as amended and reinstated effective as of May 1, 1996. (Docket No. 25-2, pp. 6 - 7). Niagara Mohawk was directed to respond to the following Document Requests:
1. A copy of each and every Policy, Summary Plan Description and/or Plan document governing "Plan A" and/or Group Term Life Insurance for full-time, non-represented employees from the inception of Plan A in 1972, including a copy of each and every Amendment made thereto between Plan A's inception in 1972 to the present.
13. Any and all documents containing any information regarding any employee contributions made by Plaintiffs for Plan A insurance coverage from the inception of Plan A insurance coverage, including but not limited to any documents or records reflecting the amount of employee contributions made toward Plan A insurance coverage and any documents or records reflecting the investment, at any time, of said employee contributed funds 18. All documents regarding or referring to the annual benefit election forms or annual benefit election individually made by plaintiffs during the entire course of their employment. (Docket No. 25-3, pp. 7, 9, 10 - 11).
Plaintiffs' counsel, Ms. Pierrot, states that Defendant's non-compliance with the previous Order was discovered during a March 30, 2007 deposition of William Dowd (see Supplemental Document Request No. 7, above) who testified that two benefit analysis companies had performed consulting work for Defendants with respect to the employee benefits aspect of the merger. Ms. Pierrot asserts that no documents prepared by either of these consulting companies were ever provided to Plaintiffs and argues that these documents clearly fall within the realm of the previous Order. Further, to the extent that defense counsel (Mr. Orbach) attempts to assert that some documents are privileged, Defendants have failed to provide the requisite privilege logs.
Plaintiffs go on to state that the categories of documents that were produced pursuant to the previous Order were incomplete, that Ms. Pierrot notified Mr. Orbach of the deficiencies on numerous occasions, that additional responsive documents were not provided until the evening before the depositions of three (3) defense witnesses scheduled to be conducted in Syracuse, New York, and that the 126 pages of documents received via facsimile transmission had been in Defendants possession for at least one month prior to this scheduled deposition date. Ms. Pierrot also avers that these two witnesses testified that they were never asked to look for ...