journal of pension planning & compliance - Kluwer Law International

ATTORNEY-CLIENT PRIVILEGE ISSUES IN EMPLOYEE BENEFITS PRACTICE / 35
United States Courts of Appeals to take appeals from “final decisions of the district courts”
[28 U.S.C. § 1291]. In Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541 (1949),
the Supreme Court recognized as “final” collateral orders that do not terminate an action but
that conclusively determine the disputed question, resolve an important issue separate from
the merits, and are effectively unreviewable on appeal from a final judgment. In Mohawk , the
Court held that disclosure orders adverse to the attorney-client privilege are not immediately
appealable because effective appellate review is available by other means.
8. See Christopher B. Mueller & Laird C. Kirkpatrick, Evidence Practice Under the Rules
§ 5.8 (2d ed. 1999).
9. See, e.g. , Arcuri v. Trump Taj Mahal Assocs., 154 F.R.D. 97, 103–104 (D.N.J. 1994) (finding
attorney-client privilege applicable to advice given by union counsel to court-appointed union
monitor); Martin v. Valley Nat’l Bank, 140 F.R.D. 291, 304–305 (S.D.N.Y. 1991) (applying
privilege to attorney advice where plan fiduciaries sought production of documents from the
DOL); American Standard, Inc. v. Pfizer Inc., 828 F.2d 734, 745 (Fed. Cir. 1987) (holding that
the privilege should be applied to “lawyer-to-client communications that reveal, directly or
indirectly, the substance of a confidential communication by the client”).
10. See Restatement (Third) of the Law Governing Lawyers §§ 78–80 (2000) [hereinafter
Restatement]. The American Law Institute (ALI) published the Restatement in August 2000.
The Restatement seeks to codify decisional law and statutes that apply in proceedings, evidentiary
hearings, and criminal prosecutions relating to attorney discipline, malpractice, and
disqualification. Including Reporter’s Notes, comments, and case citations, the Restatement
provides a convenient summary of many of the principles that apply in this area, and is referenced
below where relevant.
11. See, e.g. , id. § 82 (exception for a communication in furtherance of a crime or fraud).
12. Id . § 68.
13. United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (citations omitted).
14. 2009 U.S. Dist. LEXIS 21964, 2009 WL 559705 (E.D. Cal. Mar. 4, 2009).
15. 2009 WL 559705, at *1.
16. Id .
17. Curtis v. Alcoa Inc., 2009 U.S. Dist. LEXIS 71581, 2009 WL 838232, at *1 (E.D. Tenn.
Mar. 27, 2009).
18. 2009 WL 838232, at *3.
19. Id .
20. Id . at *7.
21. Id . at *8.
22. Byrnes v. Empire Blue Cross Blue Shield, 1999 U.S. Dist. LEXIS 17281, at **5-15 (S.D.N.Y.
Nov. 2, 1999) (magistrate’s order).
23. Neuder v. Battelle Pac. Nw. Nat’l Lab., 194 F.R.D. 289, 292–295 (D.D.C. 2000).
24. Lewis v. UNUM Corp. Severance Plan, 203 F.R.D. 615 (D. Kan. 2001). Therefore, discussions
among committee members at the meeting were not privileged, nor were the committee members’
opinions, impressions, and conclusions based on what was done at the meeting.
25. Asuncion v. Met. Life, 493 F. Supp. 2d 716, 721 (S.D.N.Y. 2007) (magistrate’s order).
26. Aiena v. Olsen, 194 F.R.D. 134, 135–136 (S.D.N.Y. 2000).