Commercial Litigation and Arbitration

Fiduciary Exception to Attorney-Client Privilege — ERISA

From Comrie v. IPSCO, Inc., 2009 U.S. Dist. LEXIS 111965 (N.D. Ill. Nov. 30, 2009):

Plaintiff ... contends that the document-even if privileged and not waived-falls within the "fiduciary exception" and, therefore, is discoverable. This exception applies where the beneficiary requests from "a fiduciary of an ERISA plan . . . 'any communications with an attorney that are intended to assist in the administration of the plan.'" Bland v. Fiatallis N. Am., Inc., 401 F.3d 779, 787 (7th Cir. 2005) (quoting In re Long Island Lighting Co., 129 F.3d 268, 272 (2d Cir. 1997) (emphasis added)). Underlying this exception is "the theory that the attorney-client privilege should not be used as a shield to prevent disclosure of information relevant to an alleged breach of fiduciary duty." Id. As should be evident from the foregoing, the fiduciary exception applies only when the plan administrator acts her capacity as a fiduciary. Id. at 788 (noting that decisions outside the exception are "not fiduciary decisions"); see also King v. Nat'l Human Res. Comm., Inc., 218 F.3d 719, 723 (7th Cir. 2000) ("It is clear that a person can be a fiduciary for some purposes but not others.").

"Administration of the plan" does not mean large-scale decisions relating to the plan's design, amendment, or termination.... Thus, amending or abolishing unaccrued benefits by, for example, "spinning off plan assets to a new plan" does not constitute plan administration.... Decisions about investment of plan money or the disposition of plan assets, however, constitute "administration of the plan." ***.

Exhibit 36 falls within the fiduciary exception. Klebuc-Simes is a fiduciary,... and she sent an e-mail to an attorney. Thus, the only remaining question is whether the communication was intended to assist in plan administration. The Court finds that it was. The e-mail in this case related to Plaintiff's claims for benefits under his plan and other severance benefits that he was denied. While neither party explained the allegations in the complaint, at least one claim is based on the plan administrator's decision to deny Plaintiff's claimed benefits-not any large-scale decisions about design, amendments, or termination.... Plaintiff's claim is, therefore, directed at plan administration. As a corollary, Defendants' argument that "[Klebuc-Simes] was not seeking advice regarding the [plan] administration" because she "was requesting legal advice with respect to [Plaintiff's] . . . claims" is unfounded.... Therefore, Exhibit 36 falls within the fiduciary exception and is not privileged.

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