                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 March 17, 2008
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court


    THERESA F. NILES,

                Plaintiff-Appellant,

    v.                                                  No. 07-3032
                                                 (D.C. No. 04-CV-4060-SAC)
    AMERICAN AIRLINES, INC.;                              (D. Kan.)
    TRANSWORLD AIRLINES, LLC,
    UNIVERSAL WELFARE BENEFIT
    PLAN,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TACHA, EBEL, and MURPHY, Circuit Judges.



         Theresa F. Niles appeals the district court’s grant of summary judgment in

favor of the defendants on her claim for disability benefits brought pursuant to the

Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 - 1461 (ERISA).

Ms. Niles argues that summary judgment should be reversed because the district


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
court (1) failed to apply the appropriate de novo standard of review to the

defendants’ action in denying her disability benefits; (2) improperly relied on a

surveillance video and portions of her deposition that were not part of the

administrative record; and (3) improperly excluded documents she submitted to

supplement the administrative record. We affirm in part, vacate in part, and

remand.

                                 BACKGROUND

      Ms. Niles worked as a Mechanics Supervisor and Technical Quality

Assurance Auditor for Trans World Airlines (TWA) from 1977 until November

1996. Her work for TWA ended after a motor vehicle accident in which she

sustained neck injuries. Effective May 1997, she began receiving long-term

disability benefits pursuant to TWA’s Group Benefits Plan.

      In 2001, defendant American Airlines, Inc. (American) purchased certain

TWA assets and created the TWA Airlines LLC Universal Welfare Benefit Plan

(Plan). American sponsored and administered the self-insured Plan. As a former

employee of TWA, Ms. Niles remained insured and received ongoing disability

benefits under the Plan. The Plan provides disability benefits to an insured who

becomes “[t]otally [d]isabled from any occupation while covered because of an

accident, [s]ickness or pregnancy.” Aplee Supp. App. at 70. An employee is

considered totally disabled “during any period when, as a result of [i]njury,

[s]ickness or pregnancy, the Employee is completely unable to perform the duties

                                         -2-
of his occupation and is not performing any other work or engaging in any other

occupation or employment for wage or profit.” Aplt. App., Vol. III, at 881.

      In March 2002, Metropolitan Life Insurance Company (MetLife) began

serving as the Plan’s third-party administrator. MetLife decided to conduct a

review of Ms. Niles’ continuing eligibility for disability benefits. As a part of the

review, it required her to undergo a Functional Capacity Evaluation (FCE) to

evaluate her physical ability to work.

      The Functional Capacity Evaluation

      MetLife hired a third-party evaluator, Isernhagen Work Systems

(Isernhagen) to administer the FCE tests to Ms. Niles. Dan Van Buskirk, an

occupational therapist, tested her on behalf of Isernhagen over a two-day period

in October 2002. Mr. Van Buskirk concluded that she gave “maximal effort” on

all of the test items. Id. at 990. He further noted that “[t]hroughout the lifting

and carrying portions of the evaluation, [Ms. Niles] requested to momentarily sit

down or lean against the shelves secondary to dizziness, nausea, and/or throbbing

headache.” Id. Objective signs coincided with these expressions of subjective

discomfort, but she was able to work through the discomfort and tolerated the

activities safely despite her pain.

      Mr. Van Buskirk’s report concluded that Ms. Niles was able to work at the

“light” level, as defined by the United States Department of Labor. Id. at 991.

With certain restrictions, she could also perform “medium” work. Id. at 995. She

                                         -3-
would, however, only occasionally be able to tolerate trunk flexion, the range of

motion in her neck was limited, and “[w]ith increased physical exertion she

complains of neck pain, headache, dizziness, and nausea.” Id.

      With the FCE in hand, MetLife conducted a “Transferable Skills Analysis”

in which it identified 95 occupations in the “sedentary” or “light” categories that

were “good” or “closest” to Ms. Niles’ skills and experience and that paid at least

$11.63 per hour. Id. at 996. It then selected eighteen of these positions from the

list and hired a third-party consultant, CorVel Corporation, to conduct a labor

market survey. CorVel selected three of these jobs, “Quality Control

Technician,” “Transportation Maintenance Supervisor,” and “Inspector, General,”

interviewed local employers, and reported to MetLife concerning their

availability.

      The Surveillance Report and Video

      MetLife also hired a private investigator to conduct surveillance of

Ms. Niles. The investigator prepared a report and submitted a surveillance video

to MetLife.

      The report indicates that on September 6, 2002, the investigator conducted

surveillance at Ms. Niles’ residence in Ottawa Kansas and observed a person

described as a “50-year-old female, 5’8” tall, approximately 165 lbs., with

shoulder length, brown hair” departing and returning to her residence. Id. at 978.

The next day, the investigator observed this person washing her gray Buick

                                         -4-
LeSabre at a local carwash. The investigator shot about twenty minutes of video

that shows “Claimant exiting her vehicle, opening the hood and trunk of the

vehicle, crouching down to wash the vehicle’s tires, and bending at times to wash

under the vehicle.” Id. at 979. He noted that her movements were “fluid and

without hesitation,” that she showed “no signs of pain or discomfort,” and wore

“no visible medical aids or devices.” Id.

       MetLife’s Initial and Second Review Denials

       By letter dated December 31, 2002, MetLife notified Ms. Niles that her

benefits had been terminated because she no longer met the definition of total

disability under the Plan. According to the letter, MetLife reached this

determination based on the surveillance report and video and the results of the

FCE.

       On January 14, 2003, Ms. Niles requested a second review from MetLife of

its disability determination. She contended that MetLife’s decision was “flawed,

misleading or untrue” for the following reasons: (1) certain personal details about

her provided by the investigator were incorrect, and she was not in Ottawa Kansas

on September 6-8, 2002, as the investigator indicated; (2) Mr. Van Buskirk was

instructed not to complete the evaluation portion of the FCE tests and his

information sheet only listed partial information about her disabilities; and

(3) MetLife’s decision was inconsistent with the Social Security Administration’s

determination that she was unable to perform competitive employment at any

                                         -5-
exertional level and with the recent decision of her life insurance carrier to waive

her annual premium based on her ongoing disability. Id. at 1013-14.

      After considering the information provided by Ms. Niles, MetLife upheld

the termination of her benefits. It rejected reliance on determinations made by

the Social Security Administration (SSA) and Ms. Niles’s life insurance carrier.

Without addressing Ms. Niles’s specific objections to the FCE and the

surveillance, MetLife also noted that its decision was based primarily upon the

results of the FCE and the labor market survey, stating that “[t]he surveillance

done was a supplemental tool.” Id. at 1022.

      PBAC Appeal

      On August 21, 2003, Ms. Niles appealed MetLife’s denial of benefits to

American’s Pension and Benefits Committee (PBAC). She submitted a

significant amount of additional evidence with her appeal. These additional

materials included medical records from her treating physician, Dr. Spratt,

including letters in which he opined that she was disabled. In one of the letters,

Dr. Spratt criticized the conclusions reached by Dr. VanBuskirk in the FCE and

opined that the FCE was internally inconsistent. Ms. Niles also submitted

opinions from other treating physicians describing her exertional and

non-exertional limitations.

      In her appeal letter, Ms. Niles criticized the surveillance report submitted

by MetLife’s private investigator. She again asserted that on the dates the

                                         -6-
surveillance was conducted, she was not in Ottawa, Kansas, but was in Colorado

at a mineral spa. She also submitted her own report from a vocational expert,

indicating that she was not able to return to her primary job, nor to perform any

other job on a competitive basis.

      As part of its review, the PBAC referred Ms. Niles’s case to an independent

medical consultant, Dr. Robert D. Petrie. Dr. Petrie reviewed her medical records

and concluded that (1) she had no demonstrated impairments related to the

diagnosis of either hypothyroidism or scarcoidosis; (2) there was no evidence that

her activities of daily living were restricted due to a psychological impairment;

(3) her degenerative disc disease was not established as the source of her

subjective complaints of pain, which were inconsistent with the objective

findings; (4) her subjective pain complaints were better explained by pending

litigation and the possibility of financial gain than by significant physical

findings; (5) mentally, she was overly focused on a non-existent fracture of her

cervical spine, which was based on an early and incorrect diagnosis and

unsupported by radiologic findings; and (6) she had the ability to perform light to

moderate work activities and was not totally disabled according to the Plan

definition.

      The PBAC issued its decision on November 24, 2003. Its decision letter

indicated that after conducting an extensive review and analysis of Ms. Niles’

case and considering all of the information she had provided with her appeal, the

                                          -7-
PBAC had determined that her disability claim had been processed in accordance

with the terms of the Plan. The PBAC therefore upheld the decision to deny

benefits. In response to Ms. Niles’ complaints about the investigative report, the

PBAC stated that the report (including, presumably, the surveillance video) had

not been a factor in its decision. The PBAC concluded that “there is no medical

evidence to justify Ms. Niles’ request for reinstatement/continuation of LTD

benefits.” Id. at 1140.

      District Court Review

      Ms. Niles filed a timely ERISA action seeking disability benefits and

alleging that defendants breached their fiduciary duty to her. All parties moved

for summary judgment. Although the parties disagreed concerning the standard

of review to be applied to the defendants’ actions, the district court determined

that de novo review applied. It struck many of the exhibits that Ms. Niles

submitted in support of her summary judgment motion, rejected her fiduciary duty

claim and granted summary judgment to the defendants on her claim challenging

the denial of disability benefits.

      The district court found Ms. Niles’ challenges to the surveillance video

irrelevant, because the PBAC expressly stated it did not rely on the video in

making its decision. Notwithstanding this ruling on Ms. Niles’ challenges to the

video, the district court admitted the video on de novo review, “for the limited

purpose of demonstrating to the court the actions plaintiff admits she was able to

                                        -8-
do, rather than showing that the subject actually performing those actions [in the

video] was in fact the plaintiff.” Id., Vol. II, at 866. It found that “[a] reasonable

person viewing the video would conclude that the acts undertaken by the person

in the video are facially inconsistent with those that would voluntarily be

performed by one totally disabled by chronic pain syndrome, a degenerative

neck/disc disease or a limited ability to look down or bend over.” Id. at 867.

      The district court concluded by stating that based on its review of the

record, Ms. Niles received a full and fair review and that the process was

reasoned and principled. It found no error in the PBAC’s denial of disability

benefits.

                                     ANALYSIS

      1. Standard of Review

      “We review de novo the district court’s summary judgment decision,

applying the same standard as the district court.” Butler v. Compton, 482 F.3d

1277, 1278 (10th Cir. 2007). Summary judgment is appropriate “if the pleadings,

the discovery and disclosure materials on file, and any affidavits, show that there

is no genuine issue as to any material fact and that the movant is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c) (2007). We examine the

record and all reasonable inferences that might be drawn from it in the light most

favorable to the non-moving party. Antonio v. Sygma Network, Inc., 458 F.3d

1177, 1181 (10th Cir. 2006). Finally, we may affirm on any basis supported by

                                          -9-
the record, even though not relied on by the district court. Felix v. Lucent Techs.,

Inc., 387 F.3d 1146, 1163 n.17 (10th Cir. 2004).

      2. De Novo Review by District Court

      The parties do not dispute the district court’s conclusion that the PBAC’s

decision should be reviewed de novo. Ms. Niles contends, however, that the

district court failed in fact to conduct a de novo review and instead improperly

deferred to the administrator’s decision.

      “When applying a de novo standard in the ERISA context, the role of the

court reviewing a denial of benefits is to determine whether the administrator

made a correct decision. The administrator’s decision is accorded no deference or

presumption of correctness.” Hoover v. Provident Life and Accident Ins. Co.,

290 F.3d 801, 808-09 (6th Cir. 2002) (quotation and citation omitted). See also

Salve Regina Coll. v. Russell, 499 U.S. 225, 238 (1991) (“When de novo review is

compelled, no form of appellate deference is acceptable.”). We review de novo

the district court’s application of the appropriate standard of review to the

PBAC’s decision. DeGrado v. Jefferson Pilot Fin. Ins. Co., 451 F.3d 1161, 1167

(10th Cir. 2006). Ms. Niles raises a number of arguments in support of her claim

that the district court did not conduct de novo review.

             a. “Full and Fair Review”

      Under ERISA, an insurer must provide a full and fair review of an initial

denial of a claim for benefits. 29 U.S.C. § 1133(2). Ms. Niles complains that the

                                        -10-
district court erred by examining whether the PBAC conducted a full and fair

review, rather than conducting its own full and fair review. Her argument

misconstrues the district court’s decision. The district court’s determination that

the PBAC provided a full and fair review does not mean that it deferred to the

PBAC’s decision or that it failed to conduct a de novo review of the merits.

      Although a court conducting de novo review owes the administrator no

deference, the administrator’s decision is still the decision under review. See

Hoover, 290 F.3d at 808-09. A showing that the administrator failed to follow

ERISA procedures therefore provides a basis for reversal separate from that

provided by de novo review of the merits of the claim. See, e.g., Hackett v. Xerox

Corp. Long-Term Disability Income Plan, 315 F.3d 771, 777 (7th Cir. 2003)

(remanding for retroactive reinstatement of benefits where plan administrator

failed to follow full and fair review procedures).

      In her summary judgment motion, Ms. Niles sought reversal both on

procedural grounds and on the merits. Her full and fair review argument targeted

the PBAC’s failure to follow the proper procedures in evaluating her claim. See

Aplt. App., Vol. I, at 158-61. 1 These procedurally-based arguments were

presented separately from her argument targeting the merits of the PBAC’s

1
      Specifically, she contended that the administrator failed to permit her to
respond to Dr. Petrie’s opinion, that it accepted his opinion though it was not
based on all the relevant evidence, and that the PBAC’s “failure to obtain an
[independent medical examination] constituted a procedural irregularity.” Aplt.
App., Vol. I, at 160.

                                         -11-
determination, which she argued was unsupported by substantial evidence. See

id. at 161-77. We conclude that the district court’s finding that PBAC provided a

full and fair review, which responded to the procedural arguments Ms. Niles

raised, did not deprive her of de novo consideration of the merits of her claim.

              b. Other Alleged Evidence of Improper Deference

       Other language in the district court’s opinion, however, raises a troubling

possibility that while ostensibly conducting de novo review, the district court may

have improperly deferred to the PBAC’s decision. An instance of this troubling

language is found in its analysis of Ms. Niles’s merits argument concerning the

FCE findings. The district court began its analysis by stating it did “not agree

with the plaintiff’s contention that the FCE’s findings establish plaintiff’s

inability to perform any work activity on a consistent basis.” Aplt. App., Vol. II,

at 864. It then listed reasons why it disagreed with Ms. Niles’s contention. It

concluded, however, by stating that “MetLife reviewed the FCE in its entirety,

found it to be valid, and identified occupations within both the light and sedentary

demand categories that match plaintiff’s job skills. Reliance on the FCE, and

resultingly, the Labor Market Survey, was warranted.” Id. at 864 (emphasis

added). This conclusion suggests that the district court may have believed its

function was to determine whether MetLife properly relied on the FCE, rather

than whether it should rely on the FCE in reaching a de novo decision on

disability.

                                         -12-
      The district court employed other language suggesting application of an

improper standard. It stated that there was evidence that “might support an award

of long-term disability benefits,” but noted that this evidence was “based almost

exclusively on plaintiff’s subjective claims” and was rebutted by “[o]ther

substantial evidence.” Id. at 869 (emphasis added). It further concluded that

plaintiff’s admissions concerning her ability to perform the acts requisite to

washing her car, the evidence provided by Dr. Petrie’s report, and the FCE all

provided “some evidence that plaintiff was not totally disabled.” Id. On de novo

review, however, the standard is not whether “substantial evidence” or “some

evidence” supported the administrator’s decision; it is whether the plaintiff’s

claim for benefits is supported by a preponderance of the evidence based on the

district court’s independent review. See, e.g., Alexander v. Winthrop, Stimson,

Putnam & Roberts Long Term Disability Coverage, 497 F. Supp. 2d 429, 433, 440

(E.D.N.Y. 2007) (applying preponderance standard in de novo review case); see

also Ray v. UNUM Life Ins. Co. of Am., 224 F. App’x 772, 782 (10th Cir. 2007)

(unpublished) (approving district court’s application of preponderance standard in

de novo review case).

             c. District Court’s Review of Record

      We are also concerned by whether the district court conducted a de novo

review of the medical evidence. The district court stated that it had reviewed the

administrative record. Aplt. App., Vol. II, at 869. It is difficult to determine the

                                         -13-
extent of this review, however, because it failed to discuss much of the medical

evidence Ms. Niles submitted. We are particularly concerned by the fact that the

district court appears to have viewed Ms. Niles’ evidence primarily through the

lens of the independent medical expert, Dr. Petrie. While it devoted considerable

discussion to Dr. Petrie’s report and conclusions, the district court mentioned the

opinions and diagnoses of Ms. Niles’s treating physicians in passing at most.

“Plan administrators . . . may not arbitrarily refuse to credit a claimant’s reliable

evidence, including the opinions of a treating physician.” Black & Decker

Disability Plan v. Nord, 538 U.S. 822, 834 (2003). The same principle applies to

a court reviewing the medical record de novo.

      American’s position that the district court was not obligated to discuss each

and every piece of medical evidence seems unimpeachable. See Aplee. Br. at 27

n.4. But that is not the problem. The problem is that the district court’s language

conveys the impression that it believed its task was only to determine whether

Dr. Petrie’s report provided substantial evidence for the PBAC’s decision. As we

have seen, that is not the appropriate standard to be applied as part of a de novo

review. The district court should instead have examined all the medical evidence,

including Dr. Petrie’s report, and determined whether that evidence created a

genuine issue of material fact concerning whether Ms. Niles was disabled under

the preponderance standard.




                                          -14-
             d. Conclusion

      For the foregoing reasons, we must vacate that portion of the district

court’s decision granting summary judgment to the defendants on Ms. Niles’s

disability benefits claim, and remand for a proper de novo analysis of whether her

claim to benefits is supported by a preponderance of the evidence. On remand,

the district court should give careful consideration to all the evidence of record in

reaching its conclusion, including the FCE and Ms. Niles’s objections thereto, and

the medical evidence.

      3. Evidentiary Rulings

      Ms. Niles also challenges the district court’s rulings on certain evidentiary

issues.

             a. Consideration of Surveillance Video and Deposition

      The PBAC stated that it had not relied on the surveillance report in

reaching its decision. The district court nevertheless considered the surveillance

video for the limited purpose of determining the type of activities Ms. Niles

admittedly was capable of performing. Ms. Niles made the admission on which

the district court relied during the course of her deposition. She contends that the

district court should not have considered the video and should not have admitted

her deposition into evidence.




                                        -15-
                    i. The Video

      The video was part of the administrative record presented to the PBAC and

therefore part of the record to be considered by the district court on de novo

review. At the time of the PBAC’s decision, Ms. Niles denied that she was the

person captured on the video. Her subsequent admission during her deposition

that she was capable of performing the activities portrayed on the video came

after the administrative record was closed and was not available to the PBAC.

The fact that the PBAC discounted the video was therefore not binding on the

district court on de novo review, particularly given the limited purpose for which

the district court considered it. Cf. Wible v. Aetna Life Ins. Co., 375 F. Supp. 2d

956, 970-71 (C.D. Cal. 2005) (considering, as part of de novo review,

surveillance results favorable to claimant that went ignored and unmentioned by

plan administrator in its denial decisions). 2

                    ii. The Deposition

      Ms. Niles argues that her deposition should not have been admitted into

evidence because it was outside the administrative record and did not meet the

criteria for supplementing the record on de novo review that we outlined in Hall


2
       Ms. Niles also argues that the video should not be given much weight
because it only shows what she could do for the twenty minutes or so of its
duration and therefore is only weakly probative of her ability to work an
eight-hour day. On remand, the district court may of course consider this factor
in determining whether either party has established entitlement to summary
judgment.

                                          -16-
v. UNUM Life Insurance Co. of America, 300 F.3d 1197 (10th Cir. 2002). Under

Hall, “[t]he party seeking to supplement the record bears the burden of

establishing why the district court should exercise its discretion to admit

particular evidence.” Id. at 1203. Specifically, the party must show that (1) the

evidence is “necessary to the district court’s de novo review”; (2) “it could not

have been submitted to the plan administrator at the time the challenged decision

was made”; (3) the evidence is not “[c]umulative or repetitive” nor (4) may it be

“evidence that is simply better evidence than the claimant mustered for the claim

review.” Id. (quotation omitted). “District courts must conduct analysis

case-by-case to determine whether the four prongs of the Hall test are met.”

Jewell v. Life Ins. Co. of N. Am., 508 F.3d 1303, 1309 (10th Cir. 2007), petition

for cert. filed (U.S. Feb. 19, 2008) (No. 07-1121). We review the district court’s

ultimate decision under Hall for an abuse of discretion. Id.

      Addressing the first factor in Hall, the district court found that the

deposition was necessary to its de novo review because it involved admissions by

Ms. Niles that were important in determining the issue of whether she was

disabled. Addressing the second factor, it concluded that the deposition could not

have been presented in the administrative process, which concluded long before

her deposition was taken. Although the district court did not address the last two

factors, Ms. Niles does not argue that the deposition is cumulative or repetitive or

that it is simply better evidence than that previously considered as part of the

                                         -17-
administrative process. We conclude that the district court did not abuse its

discretion by admitting the deposition.

      Finally, Ms. Niles contends that if her deposition is considered, it should be

admitted in its entirety. She complains that the deposition submitted to the

district court was incomplete because it did not contain her corrections. It is

unclear from her argument what these corrections contain or why Ms. Niles

believes they are significant. If she previously submitted any corrections to the

district court, they do not appear in the record on appeal. Any concerns Ms. Niles

may have concerning the completeness of her deposition for review purposes are

best addressed to the district court in the first instance on remand.

             b. Striking of FCE Documents

      Ms. Niles also challenges the district court’s decision to strike certain

documents attached to her motion for summary judgment. The district court

struck her exhibit 10, an affidavit of Sharon Gram, the records custodian at

Ransom Memorial Hospital (RMH), where Ms. Niles underwent the FCE. The

affidavit was offered to authenticate over 300 pages of medical records, including

her exhibits 3 through 5. Exhibits 3 through 5 purportedly are early drafts of the

FCE report that contain handwritten notations and a fax cover sheet between

Isernhagen and Mr. Van Buskirk. Ms. Niles draws the conclusion from these

exhibits that Isernhagen and/or MetLife induced Mr. Van Buskirk to modify his

conclusions on the final draft of the FCE.

                                          -18-
      The district court struck exhibit 10 because Ms. Niles failed to disclose it

as part of her initial disclosure of documents under Fed. R. Civ. P. 26. It then

struck exhibits 3 through 5 for lack of foundation, which was no longer provided

by the stricken exhibit 10.

      Ms. Niles’s initial Rule 26 document disclosures identified only the

defendants’ claim file, including the final FCE, and did not mention her exhibit

10. 3 In striking the exhibit, the district court cited Fed. R. Civ. P. 26(a)(1)(B), 4

which states that “a party must, without awaiting a discovery request, provide to

other parties . . . a copy of, or a description by category and location of, all

documents . . . that are in the [party’s possession] and that the disclosing party

may use to support its claims or defenses, unless solely for impeachment.” Rule

37(c)(1) further provides that “[i]f a party fails to provide information or identify

a witness as required by Rule 26(a) or (e), the party is not allowed to use that

information or witness to supply evidence on a motion, at a hearing, or at a trial,

unless the failure was substantially justified or is harmless.” We review for an

abuse of discretion both the district court’s decisions to impose sanctions for

discovery abuses under Rule 37, Woodworker’s Supply, Inc. v. Principal Mut. Life

3
      The applicable version of Rule 26 exempts from its disclosure requirements
“an action for review on an administrative record.” Fed. R. Civ. P. 26(a)(1)(E)(I).
Ms. Niles does not argue that this exception applies here.
4
       A revised version of Rule 26 is currently in effect, but did not go into
effect until December 1, 2007, and was therefore not applicable to the required
disclosures in this case.

                                          -19-
Ins. Co., 170 F.3d 985, 992-93 (10th Cir. 1999), and its application of Rule 26(a),

Davis v. U.S. Bancorp, 383 F.3d 761, 764 (8th Cir. 2004).

      Ms. Niles admits that she failed to disclose exhibit 10 as part of her initial

Rule 26 disclosures. She argues that the district court should nevertheless have

admitted the exhibit, for two reasons: (1) she had no duty under Rule 26 to

disclose it; and (2) any failure to disclose it was harmless.

      Ms. Niles argues that she had no duty to disclose the exhibit under Rule

26(a)(1)(A), pertaining to the disclosure of witnesses. But the district court did

not rely on Rule 26(a)(1)(A); it relied on Rule 26(a)(1)(B), pertaining to the

disclosure of documents. The distinction is significant because the argument

Ms. Niles raises applies only to the disclosure of witnesses under Rule

26(a)(1)(A). She argues that a records custodian like Ms. Gram is not an

“individual likely to have discoverable information,” Rule 26(a)(1)(A), and

therefore need not be disclosed as a witness. Ms. Niles fails to show that this

argument has any relevance to the requirement of production of documents.

      Moreover, even if Rule 26(a)(1)(A) were applicable here (perhaps on a

theory that an affidavit and the identity of the witness providing it are

inseparable), Ms. Niles fails to show that as a records custodian Ms. Gram had no

“discoverable information.” Ms. Niles cites no authority to support her theory

that the identity of records custodians need not be disclosed under Rule

26(a)(1)(A). Given the nature of the documents involved in this case, we

                                         -20-
conclude that the district court did not abuse its discretion in determining that the

affidavit was subject to disclosure. Ms. Niles sought to use Ms. Gram’s

declaration to obtain admission of documents suggesting that the defendants

exerted undue influence over the preparation of the FCE. Defendants were

deprived by the lack of disclosure of an opportunity to depose Ms. Gram

concerning any knowledge she might have of the history and provenance of the

FCE documents and the handwritten notations on them. See U.S. ex rel. Fago v.

M&T Mortgage Corp., 518 F. Supp. 2d 108, 113-14 (D.D.C. 2007) (striking

declarations from title company records custodians along with attachments

purportedly showing history of challenged documents because party failed to

disclose them under Rule 26(a)(1)).

      We are concerned, however, by two other arguments that Ms. Niles makes

in support of admission of exhibit 10 and, consequently, exhibits 3 through 5.

She argues that she intends to use exhibit 10 solely for impeachment purposes,

see Rule 26(a)(1)(B), and that her failure to disclose exhibit 10 was harmless, see

Rule 37(c)(1). The district court did not address these considerations in striking

the exhibits. Because these exhibits may be crucial to Ms. Niles’s case if they

invalidate the FCE, we instruct the district court on remand to consider whether

the exhibits should be received notwithstanding the lack of timely disclosure of

exhibit 10 and the consequent lack of authentication for exhibits 3 through 5,

either because they are going to be used solely for impeachment purposes, or

                                         -21-
because the lack of disclosure is harmless. The defendants may of course renew

their other objections to receipt of these exhibits, including their argument that

they fall outside the administrative record and do not meet the criteria in Hall.

                                   CONCLUSION

      We VACATE the portion of the district court’s decision granting summary

judgment to the defendants on Ms. Niles’s ERISA claim for disability benefits,

and denying Ms. Niles’s summary judgment motion, and REMAND for

reconsideration of both defendants’ and Ms. Niles’s motions for summary

judgment under the appropriate de novo standard. Should the district court find

that it cannot grant summary judgment to either party because genuine issues of

material fact exist, it should then conduct a de novo review of the evidence to

determine whether Ms. Niles’s benefits claim is supported by a preponderance of

the evidence. We AFFIRM the district court’s challenged evidentiary rulings,

with the exception of its order striking Ms. Niles’s exhibits 3 through 5 and 10,

which it should reconsider in light of the analysis provided in this order and

judgment.

                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




                                         -22-
