journal of pension planning & compliance - Kluwer Law International

ATTORNEY-CLIENT PRIVILEGE ISSUES IN EMPLOYEE BENEFITS PRACTICE / 41
various documents, had ruled that the remaining documents concerned plan amendments,
and that the attorney-client privilege insulated the documents from production because the
fiduciary exception did not apply. Id. at 270. The district court had reversed, holding that “if
a fiduciary of the plan uses the same lawyer to provide him advice as to plan amendment as
he uses for plan administration, then the plan administrator must be understood to have either
not intended or to have waived confidentiality as to his communications with that lawyer.” Id.
The Second Circuit disagreed, ruling that the fiduciary exception was limited to matters within
the scope of the fiduciary duty.
97. Id. at 272–273 (discussing Washington Star , 543 F. Supp. at 909–910). It is not clear what the
Washington Star court meant by the phrase “communications about the plan.” The Second
Circuit in Long Island Lighting read that language to indicate the Washington Star court
believed separate counsel was necessary to protect communications between the attorney and
the employer acting in a nonfiduciary capacity. Id.
98. Washington Star Co., 543 F. Supp. at 909–910.
99. 401 F.3d 779, 787-788, 34 E.B. Cases 1875 (7th Cir. 2005).
100. See Beesley v. Int’l Paper Co., 44 E.B. Cases (BNA) 1038 (S.D. Ill. 2008) (holding privileged
legal advice given in connection with plan amendment that replaced “Fiduciary Review
Committee” with “401(k) Committee”); Halbach v. Great-West Life & Annuity Ins. Co.,
2006 U.S. Dist. LEXIS 84591, at **13–14 (E.D. Mo. Nov. 21, 2006) (ruling that when a plan
sponsor seeks legal advice regarding future plan amendments, it is not acting as a fiduciary
for the benefit of beneficiaries); Henry v. Champlain Enters., 212 F.R.D. 73, 85 (N.D.N.Y.
2003) (agreeing in dicta that fiduciary exception applies only when communications relate to
fiduciary functions); Everett v. USAir Group, Inc., 165 F.R.D. 1, 4 (D.D.C. 1995) (indicating
that if an employer could demonstrate that advice given pertained solely to its settlor
activities, such as amending the plan, then it could maintain the privilege notwithstanding the
fiduciary exception; the court, however, held that the employer had not made such a showing);
In re Unisys Corp. Ret. Med. Benefits ERISA Litig., 1994 WL 6883, at *3 (E.D. Pa.
Jan. 6, 1994) (holding that if certain documents contained communications between counsel
and management concerning the decision to terminate the plan, which is not a fiduciary function,
then the fiduciary exception would not apply and the documents would be protected
from discovery).
101. Compare Tatum v. R.J. Reynolds Tobacco Co., 247 F.R.D. 488, 495–497 (M.D.N.C. 2008) (ruling
that legal advice concerning adoption of a plan amendment eliminating a company stock
fund was privileged while the fiduciary exception applied to advice relating to communication
of the amendment to participants), Kanawi v. Bechtel Corp., 2008 U.S. Dist. LEXIS 76604
(N.D. Cal.) (holding documents relating to how to communicate plan changes to participants
must be produced pursuant to the fiduciary exception) and Baker v. Kingsley, 2007 U.S. Dist.
LEXIS 8375, at **8-18 (N.D. Ill. Feb. 5, 2007) (holding that the fiduciary exception applied
to drafts of communications between the plan sponsor and outside counsel concerning how
changes in benefit plans would be communicated to plan participants) with In re J.P. Morgan
Cash Balance Litig., 2007 U.S. Dist. LEXIS 31964, at **8-11 (S.D.N.Y. Apr. 30, 2007) (deciding
that the fiduciary exception did not apply to drafts of plan amendments and notices concerning
the amendments, noting as “significant” that the plan sponsor paid the attorneys).