journal of pension planning & compliance - Kluwer Law International

28 / JOURNAL OF PENSION PLANNING & COMPLIANCE
without the “trustee” title, including investment managers, because the
rationale that “a trustee is not ‘the real client’ and thus never enjoyed
the privilege in the first place” would apply no “less powerfully to fiduciaries
that, although not officially termed trustees, represent beneficiaries
of the trust with respect to plan administration.” 84
In an action under ERISA to recover pension benefits that
employees had received before the plan administrator recalculated and
reduced them, the plaintiffs sought access to predecisional communications
between the plan administrator and counsel, and the district court
upheld the plaintiffs’ argument that the fiduciary exception applied. 85
The court distinguished between the “predecisional” phase of benefit
determination and “post-decisional” phase of benefit determination:
where a plan administrator seeks the advice of counsel in the “predecisional”
phase of benefit determination, the fiduciary exception applies,
and attorney-client communications must be disclosed. The court
found there was no dispute that the documents the plaintiffs sought
were created in the “predecisional” phase of the plan administrator’s
decision to recalculate and reduce the plaintiffs’ pension benefits. Further,
the plaintiffs noted that there was no dispute among the parties
that the documents the plaintiffs sought reflected communications
between the plan administrator and counsel regarding “plan administration”—“namely,
the determination that pension benefits had been
incorrectly calculated, and the recalculation of the purportedly correct
amounts.” 86
In an action by plan participants to “clarify their rights” to future
retirement benefits under the terms of a retirement plan, another district
court signaled its willingness to recognize the fiduciary exception.
87 In response to the plaintiffs’ document requests, the employer
withheld several documents on the basis of the attorney-client and
work product privileges. 88 The plaintiffs claimed that the documents
were not privileged because they were generated or reviewed in connection
with the employer’s administration of the plaintiffs’ benefit
claims and were therefore subject to the “fiduciary exception.” 89 T h e
defendant maintained that the district court should not apply the fiduciary
exception because the Eleventh Circuit had never before applied
the fiduciary exception in the context of an ERISA case. 90 The court
held that the defendants had failed to provide any legal or factual
explanation as to why the court should not apply the fiduciary exception,
stating “Indeed, application of this doctrine to ERISA actions
finds significant support in federal case law.” 91 Accordingly, the court
ordered the defendant to submit the documents for an in camera
review so that it could determine which privileges, if any, applied to
them. 92