the plans, the fairness and reasonableness of the administrator's reading

of the plans and the anticipated costs of a verdict favorable to the plans, all of which would be

relevant under the arbitrary and capricious standard that the magistrate judge concluded would guide

the court's review of the merits.4 The magistrate judge allowed plaintiffs to depose the committee

members about all phases of the administrative review process and to depose Richard Anderson, an

ARCO attorney, about the administration of the plans before September of 1988, when the lawsuit

was filed, but quashed the deposition of ARCO's trial counsel, Howard Shapiro. The district court

affirmed the magistrate judge's rulings.5



          In December of 1990 the parties again filed cross-motions for summary judgment. On

February 27, 1991, the district courtthe Perry

rationale was found persuasive in the context of a review of a benefit determination under an arbitrary

and capricious standard. Sandoval's long-term disability benefits under his employer's plan were

terminated after the plan administrator determined that he was no longer totally disabled, and the plan

review committee upheld this decision. Although Sandoval was represented by counsel before the

administrative review committee, neither he nor his counsel informed the committee that he continued

to be disabled not only because of his prior physical impairments, but also because he was suffering

from psychological impairment. Before the district court, however, Sandoval presented evidence of

psychological impairment, and the court found that he was in fact psychologically disabled. The court

nevertheless affirmed the decision to terminate Sandoval's benefits because he had never offered

evidence or argued psychological impairment during the