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Keywords

attorneymotionfiduciarytrustattorney-client privilege
plaintiffattorneymotiontrustcivil procedureattorney-client privilege

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Donovan v. Fitzsimmons, 90 F.R.D. 583, 31 Fed.R.Serv.2d 1537, 2 Employee Benefits Cas. 1393, 8 Fed. R. Evid. Serv. 740

Facts

The Secretary of Labor filed a motion to compel the Central States Pension Fund to produce certain records related to alleged fiduciary violations by former trustees. The case arose from questionable investment transactions made by the trustees, prompting the Secretary to investigate and seek access to documents that were claimed to be protected by attorney-client privilege and work product immunity. The dispute centered on whether these privileges could be asserted against the Secretary, who was acting on behalf of the fund's beneficiaries.

Plaintiff, Raymond J. Donovan, Secretary of Labor, (the 'Secretary'), has moved pursuant to Rule 37(a) of the Federal Rules of Civil Procedure ('FRCP') for an order compelling the production of certain records of the Central States, Southeast and Southwest Areas Pension Fund ('Central States' or 'Fund').

Issue

Whether the Central States Pension Fund could assert attorney-client privilege and work product immunity against the Secretary of Labor in a case alleging fiduciary misconduct under ERISA.

At issue now is the assertion of the attorney-client privilege and work product immunity over various documents held by the Fund.

Rule

The court applied the Garner v. Wolfinbarger doctrine, which allows for the waiver of attorney-client privilege in cases where beneficiaries of a fiduciary seek disclosure of information necessary to protect their interests, while distinguishing this from work product immunity, which serves different purposes.

The Garner approach is well-reasoned. It adequately assures the public interest in attorney-client confidentiality, yet acknowledges that disclosure must prevail in those limited circumstances in which beneficiaries of corporate fiduciaries show a valid need for information.

Analysis

The court found that the Secretary's interests aligned with those of the pension fund beneficiaries, justifying the application of the Garner doctrine to waive the attorney-client privilege. However, the court also recognized that work product immunity serves to protect the attorney's privacy and is not easily overridden. The court concluded that while some documents could be disclosed due to the critical nature of the information regarding the trustees' investment decisions, others could remain protected under work product immunity.

In the court's view there exists such a sufficient identity of interests. In s 502(a) of ERISA, 29 U.S.C. s 1132(a), the Secretary has been delegated specifically the authority to sue in the interest of pension plan beneficiaries.

Conclusion

The court granted the Secretary's motion in part, allowing for the disclosure of certain documents while denying the motion regarding others that were protected by work product immunity.

Accordingly, insofar as any documents relate to what information was provided to or relied on by the former Central States trustees, the 'work-product' privilege does not bar their disclosure to the Department of Labor.

Who won?

The Secretary of Labor prevailed in part, as the court allowed for the disclosure of certain documents necessary for the investigation of fiduciary misconduct, emphasizing the need for transparency in protecting the interests of pension fund beneficiaries.

Motion denied in part and granted in part.

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