journal of pension planning & compliance - Kluwer Law International

ATTORNEY-CLIENT PRIVILEGE ISSUES IN EMPLOYEE BENEFITS PRACTICE / 19
has the burden of establishing all the elements of the privilege” and
found that the defendants in ESOP litigation had in no way attempted
to establish the elements of the privilege. 15 The court refrained from
issuing a “lengthy dissertation on the privilege ‘exceptions,’” simply
noting that the individual defendants had disclaimed any right to
invoke the privilege, and the corporate holder of the privilege had not
made any argument to counter plaintiffs’ factual showing and legal
argument. 16
The criterion most commonly invoked to deny application of the
attorney-client privilege in employee benefits cases is the requirement
that a communication be made to obtain or provide “legal” assistance
for the client.” Courts have sought to clarify the distinction between
“legal” advice and “business” advice. In Curtis v. Alcoa, Inc., 17 plaintiff
former Alcoa employees brought a class-action suit pursuant to ERISA
and the National Labor-Management Relations Act alleging that Alcoa
breached its promise to provide lifetime retiree medical benefits at no
cost when Alcoa began charging them for a portion of their medical
care. The plaintiffs moved to compel Alcoa to produce communications
that Alcoa identified as privileged arguing that the documents at issue
represented business activity and not legal activity. The district court
disagreed, finding, inter alia :
1. Redacted portions of an e-mail sent by an attorney acting in his
capacity as in-house counsel providing advice about the union’s
right to information it requested regarding retiree medical benefits
were privileged. 18
2. A presentation prepared by company employees and consultants
at the request of in-house counsel, acting in his capacity as inhouse
counsel, to assist counsel in providing legal advice regarding
the proposed consolidation of retiree benefit plans at various
plants and facilities in order to ensure Alcoa’s compliance with its
legal obligations was privileged. 19
3. An e-mail from in-house counsel to a company employee that
involved some business advice was privileged because the business
advice was so intertwined with the underlying legal communication
that it would be impossible to separate the two. 20
4. A retiree health plan summary sheet created by a company
employee with the assistance of consultants, at the direction of inhouse
counsel, to assist in-house counsel in providing Alcoa legal
advice was privileged. 21