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42 / JOURNAL OF PENSION PLANNING & COMPLIANCE 102. 178 F.3d 1058, 23 E.B. Cases (BNA) 1081 (9th Cir. 1999). 103. Id. at 1062 (quoting from lawyer’s memo). 104. The Mett court found In re Grand Jury Proceedings (United States v. Doe), 162 F.3d 554, 22 E.B. Cases (BNA) 2261 (9th Cir. 1998) (discussed supra “Cases Where Good Cause Was Not Required”) distinguishable, because the defendants in In re Grand Jury Proceedings had conceded that the advice related to plan administration. 105. Fortier v. Principal Life Insurance Co., 2008 U.S. Dist. LEXIS 43108, 2008 WL 2323918, at **1-2 (E.D.N.C. June 2, 2008) (finding the fiduciary exception inapplicable where the communications related to legal advice that the insurance company sought after it denied the plaintiff’s claim and the plaintiff threatened litigation, such that the advice of counsel related to the insurer’s own protection against the plan participant); Black v. Pitney Bowes, 2006 U.S. Dist. LEXIS 92263, at *13 (S.D.N.Y. Dec. 21, 2006) (applying a fact-intensive analysis and ruling that only communications relating to pending litigation were privileged); Halbach v. Great-West Life & Annuity Ins. Co., 2006 U.S. Dist. LEXIS 84591, at *16 (E.D. Mo. Nov. 21, 2006) (concluding that the personal liability exception to the attorney-client privilege applied because the plan sponsor was protecting itself from possible personal liability arising from potentially unlawful action when it sought advice regarding changes to the plan); Fischel v. Equitable Life Assurance, 191 F.R.D. 606, 609–610 (N.D. Cal. 2000) (ordering fiduciaries to produce documents reflecting comments by inside counsel that were “focused on word smithing and editing the language disclosing plan changes for the benefit of the beneficiaries” and documents containing counsel’s comments about the structure and design of the plan, including the plan’s compliance with the Internal Revenue Code). 106. For a criticism of the predecisional/postdecisional approach to determining whether communications are subject to the fiduciary exception, see Tatum v. R.J. Reynolds Tobacco Co., 247 F.R.D. 488, 498 (M.D.N.C. 2008): “[T]he predecisional/post-decisional distinction is not an analytical shortcut. The time period in which the communications occurred may be informative, but it is not dispositive. The key issue remains whether the communication related to plan administration or generalized concern for liability, as opposed to concern for the fiduciaries’ liability as a result of a specific threat of litigation. Regardless of when the communication occurred relative to the processing of the administrative claim, this court finds it appropriate to examine both the context and content of each communication to determine whether it is subject to the fiduciary exception.” 107. Geissal v. Moore Med. Corp., 192 F.R.D. 620, 624–625, 24 E.B. Cases (BNA) 2805 (E.D. Mo. 2000). 108. Coffman v. Metropolitan Life Ins. Co., 204 F.R.D. 296, 300, 27 E.B. Cases (BNA) 1188 (S.D. W. Va. 2001). See also Society of Professional Eng’g Employees in Aerospace, IFPTE Local 2001, AFL-CIO v. Boeing Co., 2009 U.S. Dist. LEXIS 102345, 2009 WL 371159 (D. Kan. Nov. 3, 2009) (declining to apply fiduciary exception where “the plan fiduciary retained counsel for legal advice because plaintiffs had already commenced litigation and alleged that the Committee had breached its fiduciary duties to the beneficiaries”). 109. Coffman, 204 F.R.D. at 299. 110. 203 F.R.D. 615 (D. Kan. 2001).
ATTORNEY-CLIENT PRIVILEGE ISSUES IN EMPLOYEE BENEFITS PRACTICE / 43 111. Id. at 620. See also Redd v. Brotherhood of Maintenance of Way Employees Div. of the Int’l Bhd. of Teamsters, 2009 U.S. Dist. LEXIS 46288, 2009 WL 1543325, 47 E.B. Cases (BNA) 1865 (E.D. Mich. June 2, 2009) (ordering production of documents “created in the ‘predecisional’ phrase of the plan administrator’s decision to recalculate and reduce Plaintiffs’ pension benefits” and rejecting claims that (i) the threat of litigation, or (ii) certain plaintiffs’ involvement with plan administration eliminated the fiduciary exception); Asuncion v. Met. Life., 493 F. Supp. 2d 716, 721–722 (S.D.N.Y. 2007) (magistrate’s order) (ruling that fiduciary exception would apply to communications between an insurance company and the company’s counsel about terminating disability benefits prior to completing the factual investigation of the claim). 112. Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001, AFL-CIO v. Boeing Co. , 2009 U.S. Dist. LEXIS 102345, 2009 WL 3711599 (D. Kan. Nov. 3, 2009). 113. 2009 WL 3711599, at *4 (citation omitted). 114. Id . 115. 203 F.R.D. 614 (D. Kan. 2001). 116. 2009 WL 3711599, at *4 n.10. 117. Id . 118. Wildbur v. ARCO Chem. Co., 974 F.2d 631, 645, 16 E.B. Cases 1235 (5th Cir. 1992). 119. 974 F.2d at 645–646. The Fifth Circuit, on appeal, expressed no opinion as to whether the magistrate correctly held that the attorney-client privilege barred disclosure after the parties’ interests diverged, but affirmed this aspect of the decision on other grounds. 120. Martin v. Valley Nat’l Bank, 140 F.R.D. 291, 324–325 (S.D.N.Y. 1991). 121. See, e.g. , Geissal v. Moore Med. Corp., 192 F.R.D. 620, 624-625 (E.D. Mo. 2000) (finding that postdecisional communications between counsel and the plan administrator were protected from disclosure notwithstanding the fiduciary exception to the attorney-client privilege, and simultaneously relying on the reasoning in Mett and the fact that the interests of the administrator and the plan participants had “diverged” [192 F.R.D. at 624–625]. Similarly, Tatum v. R.J. Reynolds Tobacco Co., 247 F.R.D. 488, 498 (M.D.N.C. 2008), ruled that the identity of interests on which the fiduciary exception rests “vanishes where the fiduciary is faced with a threat of litigation and seeks legal advice for its own protection against plan beneficiaries, regardless of whether that threat of litigation occurs before, during, or after the administrative claim process.” 122. Redd v. Brotherhood of Maintenance of Way Employees Div. of Int’l Brotherhood of Teamsters 2009 U.S. Dist. LEXIS 46288, 2009 WL 1543325, 47 E.B. Cases (BNA) 1865 (E.D. Mich. June 2, 2009). 123. 2009 WL 1543325, at *2. 124. Id. at *3. See also Asuncion v. Metropolitan Life Insurance Co., 493 F. Supp. 2d 716, 722 (S.D.N.Y. 2007) (court held that communication not privileged even though motivated by employer’s concern that matter would likely end up in litigation, considering that plaintiff had previously sued for benefits and would do so again if benefits denied: “[T]he mere fact that an adversarial relationship existed as a general matter as the result of the prior suit does not mean that Met Life was no longer required to act as a fiduciary with respect to any subsequentlypresented benefits claim.” (internal quotation marks and citation omitted)).
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