In the context of ERISA, courts have found that an ERISA plan fiduciary generally may not assert the attorney-client privilege against plan participants with regard to matters of plan administration.
Tatum v. R.J. Reynolds Tobacco Co., 247 F.R.D. 488 (M.D.N.C. 2008)
For those that find chess insufficiently challenging, there is a variant, three-dimensional chess. It’s played (evidently) using five boards to similate play through a cube.
Perhaps the analogy isn’t too strained when I compare that odd game to ERISA discovery jousts when the additional hazard of electronic discovery is added, and then further complicated by the various privacy issues and privilege concerns that often arise.
Stephen Rosenberg really prompted me to think about this with his post expressing concerns about the breadth of discovery obligations under the Federal Rules of Civil Procedure. The article he posted about outlines significant risks of waiver of privilege by inadvertent disclosures.
Add to that the consideration that, when advising on fiduciary matters, there may be no attorney client privilege, and you have what comes close to the cubic chess game to my way of thinking. The topic is an interesting one. Here’s one take on the “fiduciary exception” by the district court quoted above:
A fiduciary exception to the attorney-client privilege has become “well established in federal jurisprudence” of some circuits. Geissal v. Moore Med. Corp., 192 F.R.D. 620, 624 (E.D. Mo. 2000); see, e.g., United States v. Mett, 178 F.3d 1058, 1063 (9th Cir. 1999); In re Long Island Lighting Co., 129 F.3d 268, 271-72 (2d Cir. 1997); [**12] Wildbur v. ARCO Chem. Co., 974 F.2d 631, 645 (5th Cir. 1992); Fausek v. White, 965 F.2d 126, 132-33 (6th Cir. 1992); Garner v. Wolfinbarger, 430 F.2d 1093, 1103-04 (5th Cir. 1970); Wash.-Balt. Newspaper Guild, Local 35 v. Wash. Star Co., 543 F. Supp. 906, 909 (D.D.C. 1982).
The fiduciary exception is rooted in English trust law, and has been applied in numerous contexts. Mett, 178 F.3d at 1063. In the context of ERISA, courts have found that an ERISA plan fiduciary generally may not assert the attorney-client privilege against plan participants with regard to matters of plan administration. See, e.g., Mett, 178 F.3d at 1063; Long Island Lighting, 129 F.3d at 271-72; Geissal, 192 F.R.D. at 624; Wash. Star, 543 F. Supp. at 909.
The challenge of the game remains even at this level, however, since:
courts have limited the fiduciary exception, recognizing that “not all acts of the plan administrator which relate to the plan involve the administration of the plan.”
From Stephen’s native Bay State, a district court found the fiduciary exception applicable, stating:
In conclusion, this court finds that the fiduciary exception recognized by the majority of courts that have analyzed the fiduciary exception in the ERISA context should apply in the instant case. Privileged communications between the insurer and its in-house counsel should be protected to the extent they are not related to fiduciary matters, but must be disclosed where they concern matters of plan administration. This application of the fiduciary exception is most consistent with the disclosure requirements and fiduciary obligations established by ERISA, even where, as here, the fiduciary is an insurer.
Smith v. Jefferson Pilot Fin. Ins. Co., 245 F.R.D. 45 (D. Mass. 2007)
Thus, for the ERISA lawyer, the question is not only avoiding waiver of the privilege, but whether there is a privilege – and that will depend on the further question of what court your case happens to be in.
Tip – Communications prior to benefit decisions are more likely to be subject to the exception than subsequent communications.