ORDER RE: STANDARD OF REVIEW & SCOPE OF DISCOVERY. GRANTING IN PART MOTION FOR RECONSIDERATION, AND REFERRAL TO MAGISTRATE JUDGE

PATRICIA A. SEITZ, District Judge.

This ERISA action challenges Defendant's termination of Plaintiffs disability benefits. Before the Court are the parties' memoranda regarding the applicable standard of review and scope of discovery [DE-25, 26, 31 & 39] and Defendant's Motion for Reconsideration of Order to Produce Disability Claims Manual [DE-17].

Defendant maintains that the applicable standard of review is "arbitrary and capricious" because the plan documents grant the administrator discretion and, thus discovery is limited to the administrative record and the governing plan documents. Plaintiff, however, asserts that the de novo standard of review applies because (1) the administrator's decision was untimely and (2) the plan documents provided to Plaintiff by his employer did not contain discretionary language. Under a de novo standard of review, Plaintiff is entitled to conduct any discovery likely to lead to relevant evidence. Alternatively, Plaintiff maintains that, if the applicable standard of review is arbitrary and capricious, he is entitled to discovery beyond just the administrative record and governing plan documents because Defendant has a structural conflict of interest.

Because the applicable policy contains language granting the Defendant discretionary authority to determine whether Plaintiff is entitled to benefits, the applicable standard of review is arbitrary and capricious. As to the scope of discovery, however, under Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105 (2008), Plaintiff is entitled to limited discovery, which includes Defendant's disability claims manual.

I. The Applicable Standard of Review and Scope of Discovery

A. The Relevant Plan Documents Contain Discretionary Language

The parties do not dispute that if the relevant policy contains language granting the plan administrator discretionary authority to determine eligibility benefits, then a court must use an arbitrary and capricious standard of review. The parties do dispute what constitutes the relevant insurance policy.

According to Plaintiff, in response to his request for a copy of the policy, his employer sent him a document titled "Your Group Plan" [DE-26-2] (the "Plan document"). This document does not contain any language granting the administrator discretionary authority. Defendant maintains that a different document, titled "Group Life and Accident and Health Insurance Policy" [DE-26-1] (the "Policy document"), is the applicable policy. Neither party disputes that the Policy document grants discretionary authority to the administrator. While it is clear that a lay person might be confused by the two documents, especially given that the Plan document was provided in direct response to a request for the disability policy, a reading of the two documents indicates that the Plan document is not the actual insurance policy.1 The Plan document states, on the page immediately following the Table of Contents:

DE-26-2 at 3. This language indicates that the Plan document is not the actual contract of insurance and is, at best, just a portion of the actual contract of insurance. Thus, the Plan document is not the controlling document here; the Policy document is. Accordingly, the arbitrary and capricious standard of review applies because the Policy document contains discretionary language.2

B. Plaintiff Is Not Entitled to De Novo Review

Plaintiff also argues that, regardless of the language of the plan documents, a de novo standard of review should apply because Defendant did not make the benefits decision in a timely manner.3 The cases cited by Plaintiff, however, are in apposite.4 While in each of these cases the plaintiff's claim was "deemed denied" under the ERISA regulations because the plan administrator did not make a timely decision, the cases differ from the case at bar because in those cases the administrators did not make any decisions prior to the plaintiffs filing suit. Thus, the courts found no reason to defer to the administrator's discretion, and apply an arbitrary and capricious standard of review, because, having failed to make a decision, the administrator had not actually exercised any discretion. In this case, however, Defendant made a decision prior to Plaintiff filing this action.

In cases where the administrator vested with discretion issued an untimely decision under the regulation but the plaintiff did not file suit until after the decision was rendered, it appears that most courts apply the arbitrary and capricious standard. See Turner v. American Airlines, Inc., 2011 WL 1542078 (S.D. Fla. April 21, 2011); Demirovic v. Building Service 32 B-J Pension Fund, 467 F.3d 208, 212 (2d Cir. 2006) (where plaintiff chose to appeal administrator's failure to issue a timely decision, rather than file a suit, arbitrary and capricious standard applied because administrator's appeal decision was an exercise of discretion); Hardt v. Reliance Standard Life Insurance Co., 494 F.Supp.2d 391, 394 (E.D. Va. 2007) (applying arbitrary and capricious standard to untimely decision of administrator because case filed after administrator had exercised its discretion). These courts reason that because the plaintiff did not file suit until after a decision had been rendered, albeit an untimely one, the administrator had exercised discretion which was entitled to deference under ERISA and the plan documents.

In Turner v. American Airlines, Inc., 2011 WL 1542078 (S.D. Fla. April 21, 2011), the court applied the arbitrary and capricious standard despite the administrator's untimely decision under the regulation. The court noted three reasons for applying the arbitrary and capricious standard: (1) the plaintiff did not file suit upon the administrator's failure to issue a timely decision but, instead, waited to file suit until after issuance of the administrator's decision; (2) there was no record evidence that the administrator's delay was due to bad faith or negligence; and (3) the plaintiff was an active participant throughout the appeal process. Id. at *7. All of these reasons are equally applicable in the instant case — Plaintiff did not file suit upon the administrator's failure to issue a timely decision but, instead, waited to file suit until after the administrator issued a decision; there is no record evidence or even allegations of bad faith or negligence on the part of the administrator; and Plaintiff, and his lawyer, were active participants in the claim process. Thus, for these reasons the arbitrary and capricious standard of review applies in the instant matter.

C. Plaintiff is Entitled to Limited Discovery Because a Conflict of Interest Exists

Defendant maintains that under the arbitrary and capricious standard, Plaintiff is not entitled to any discovery beyond the administrative record. Defendant, however, reads the case law that has followed from the Supreme Court's decision in Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105 (2008), too narrowly. In Glenn, the Supreme Court held that when a plan administrator also pays benefits out of its own pocket there is a conflict of interest that a reviewing court should consider as a factor in determining whether the plan administrator has abused its discretion in denying benefits. Id. at 108. Since Glenn, courts that have addressed the issue of discovery have held that discovery may be permitted to determine the seriousness of the inherent conflict of interest and whether it effected the decision making process or resulted in procedural irregularities. Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1164 (10th Cir. 2010); see also Bloom v. Hartford Life & Ace. Ins. Co., 917 F.Supp.2d 1269, 1276-79 (S.D. Fla. 2013) (and cases cited therein), aff'd, 558 F. App'x 854 (11th Cir. 2014).

Defendant relies heavily on two Eleventh Circuit cases, Blankenship v. Metroplitan Life Insurance Co., 644 F.3d 1350 (11th Cir. 2011), and Blake v. Union Camp International Paper, 622 Fed. App'x 853 (11th Cir. 2015), to support its contention that no discovery is allowable. The Eleventh Circuit has set out a six-step process for reviewing a plan administrator's benefits decision.5 Blankenship, 644 F.3d at 1355. Consideration of the conflict of interest is the last step in the process. Id. Therefore, a reviewing court may never reach that consideration because the process may end at an earlier step, which is what occurred in both cases relied upon by Defendant. In both cases, the Eleventh Circuit found that the administrator's decision was supported by reasonable grounds and, thus, there was no reason for the reviewing court to reach the issue of any alleged conflict of interest. Consequently, neither of these cases aid Defendant and Plaintiff is entitled to discovery relevant to Defendant's conceded structural conflict of interest and whether the conflict effected the decision making process or resulted in procedural irregularities.6

II. The Motion for Reconsideration

Defendant seeks reconsideration of the Court's order requiring Defendant to produce its claims manual for disability claims [DE-15]. Reconsideration of an order "`is an extraordinary remedy to be employed sparingly." Burger King Corp. v. Ashland Equities, Inc., 181 F.Supp.2d 1366, 1370 (S.D. Fla. 2002). There are three grounds for reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. Id. at 1369. In order to demonstrate clear error, a plaintiff must do more than simply restate previous arguments. Bautista v. Cruise Ships Catering & Service Intern'l, N.V., 350 F.Supp.2d 987, 992 (S.D. Fla. 2003). Here Defendant appears to be arguing that the Court committed clear error when it ordered Defendant to produce its claims manual.

While Defendant maintains that Plaintiff is not entitled to the disability claims manual because he is not entitled to any discovery, as set out above, Plaintiff is entitled to limited discovery. That limited discovery includes discovery to investigate alleged conflicts of interest and to substantiate contentions of procedural misconduct or bias on the part of the plan administrator. See Murphy, 619 F.3d at 1164 (10th Cir. 2010); see also Bloom, 917 F. Supp. 2d at 1277-79 (S.D. Fla. 2013) (and cases cited therein). Thus, the claims manual is discoverable because it may be relevant in demonstrating procedural misconduct by Defendant.

Defendant further maintains that even if the manual is discoverable, the entire claims manual is not. It is not clear from the Defendant's papers whether it has a single claims manual or separate manuals for each time of claim. The Court order challenged by Defendant only requires production of its disability claims manual. If such a manual exists, Defendant shall produce it in its entirety within thirty (30) days of the date of this order. If Defendant only has a single claims manual for all types of claims, within fifteen (15) days of the date of this order, Defendant shall produce the entire Table of Contents to Plaintiff and Plaintiff shall then request production of the relevant portions of the manual.

Accordingly, it is

ORDERED THAT:

1. The Plaintiffs claim will be reviewed under an arbitrary and capricious standard and Plaintiff is entitled to limited discovery in accordance with this Order.

2. Defendant's Motion for Reconsideration of Order to Produce Disability Claims Manual [DE-17] is GRANTED in part and DENIED in part.

a. If a separate disability claims manual exists, Defendant shall produce it in its entirety by September 23, 2016.

b. If Defendant only has a single claims manual for all types of claims, by September 9, 2016, Defendant shall produce the entire Table of Contents to Plaintiff and Plaintiff shall then request production of the relevant portions of the manual, pursuant to the previously entered protective order [DE-19].

c. Any disputes over what constitutes "relevant portions of the manual" are REFERRED to Magistrate Judge Turnoff for resolution.

DONE and ORDERED.