"Before the Court is a motion to compel production of allegedly privileged documents and submission of more complete privilege logs filed by Plaintiffs(citations to the record omitted)." Durand v. Hanover Ins. Grp., Inc., No. 3:07-CV-00130-HBB, 2016 WL 6089739, at *1 (W.D. Ky. October 17, 2016) (Brennenstuhl, U.S.M.J.). The defendants are the Hanover Insurance Group, Inc. and the Allmerica Financial Cash Balance Pension Fund Plan.
The plaintiffs are Ms. Jennifer A. Durand on her own behalf and on behalf of an alleged class of former employees of Hanover. This is an ERISA class action lawsuit over Hanover's pension plan, specifically a so-called "cash-balance plan." Such plans require "a 'fair estimate of what the participant's future interest credits actually would have been" under prevailing Sixth Circuit case law applicable to this case. Durand v. Hanover Ins. Grp., Inc., No. 3:07-CV-00130-HBB, 2016 WL 6089739, at *2 (W.D. Ky. October 17, 2016) (emphasis by the U.S. Magistrate Judge).
The Office of the Inspector General of the U.S. Department of Labor audited the Plan for compliance with laws and regs considering a cash-balance model was involved. The OIG concluded that the Plan may have violated ERISA. Durand v. Hanover Ins. Grp., Inc., No. 3:07-CV-00130-HBB, 2016 WL 6089739, at *3 (W.D. Ky. October 17, 2016).
During discovery in the resulting ERISA lawsuit, the defendants withheld documents. They asserted the attorney-client privilege in support of withholding the requested documents, while the plaintiffs-employees-pensioners argued instead that the documents are an exception to the attorney-client privilege such that were fiduciaries like the defendants seek legal advice in their role as fiduciaries then they are really acting on behalf of the beneficiaries, like the plaintiffs, who are then entitled to see the documents in question. The Magistrate-Judge presiding over this dispute pointed out that the party asserting the attorney-client privilege in the first place bears the burden of proving it. Durand v. Hanover Ins. Grp., Inc., No. 3:07-CV-00130-HBB, 2016 WL 6089739, at *13 (W.D. Ky. October 17, 2016).
However, the Magistrate Judge held that "the analysis does not end here" and reviewed the withheld documents in camera:
In sum, the Court will first assess whether each document is subject to the attorney-client privilege. Next, the Court will determine who was the client at the time each document was prepared. Since Defendants are withholding the documents on claim of privilege, they bear the burden of demonstrating that each of the documents at issue are subject to the attorney-client privilege, and that they were the clients with regard to the privileged communications, not the plan beneficiaries.
Durand v. Hanover Ins. Grp., Inc., No. 3:07-CV-00130-HBB, 2016 WL 6089739, at *15 (W.D. Ky. October 17, 2016). And that is what the Magistrate Judge proceeded to do.
This was a boon to the defendants, I have no doubt. Many if not most judges would require the party to meet its burden of proof, not take it upon themselves to determine the outcome of the issue. The defendants were lucky in this regard.
Eight published pages in Westlaw later, the Magistrate Judge ordered that some documents be produced, and that some other documents be partially redacted (blacked-out) and then produced. (No documents were held appropriately withheld from all discovery entirely.) As for privilege logs, the defendants were ordered to comply with Fed. R. Civ. P. 26(b)(5)(A), the privilege log rule they were required to comply with at the outset of the discovery dispute in the first place.
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