Understanding the Fiduciary Exception to the Attorney-Client Privilege

• Pages: 18-19
• Date: 01 July 2022
• Author: Hon. Karen L. Stevenson
• Subject Matter: Derecho Civil

hen a discovery disput e concerns the attor-

ney-client privilege, it is usually straightfor-

ward for the court to resolve. Ru le 26(b)(5)

requires that if a p arty withholds informat ion

otherwise re sponsive to discovery by claim-

ing that the infor mation is privileged, the privile ge must be

expressly asser ted, and the document or communi cations must

be described i n a manner, without revealing the in formation

itself, that enables ot her parties to assess the priv ilege claim.

Thus, a part y asserting the privilege h as typically produced a

privilege log that ident ies the particula r communications, as

well as their authors and re cipients.

Once the court determines that the challenged commu-

nication involves the party’s counsel (whether in-house or

retained), that no third party is included whose presence

would waive the privilege, and that there is nothing to sug-

gest that the crime-fraud exception applies, the court can

readily conclude that attorney-client designation is appro-

priate, and the party need not disclose the communication.

Motion to compel denied, right? Maybe not.

In a lawsuit that alleges violations in the administration of

an Employee Retirement Income Security Act (ERISA) benet

plan, the duciary exception to the attorney-client privilege

makes the discovery analysis more nuanced. Consequently,

the resolution of a motion challenging an ERISA duciary’s

assertion of the privilege may be less assured.

The Fiduciar y Exception to the At torney-

Client Privilege

The ERISA statute requires that an employer, as administra-

tor of an ERISA plan, must communicate forthrightly with

the plan beneciaries about the interpretation and adminis-

tration of the plan. Because of this critical responsibility, a

number of courts, including the U.S. Court of Appeals for

the Ninth Circuit, recognize a “duciary exception” to the

attorney-client privilege. The duciary exception prevents

Understanding the Fiduciary

Exception to the Attorney-Client

Privilege

By Hon. Karen L . Stevenson, Litigation New s Associate Editor

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Published in Litigation News Volume 47, Number 4, Summer 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

18 | LITI GATION SECTION

Published in Litigation News Volume 47, Number 4, Summer 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

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