The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge
ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE REGARDING PRIVILEGE [ECF NO. 143]
Before the Court is the joint motion of the parties for a determination of a discovery dispute. The motion was filed on August 28, 2012. (ECF No. 143). Pursuant to discovery requests, Defendants withheld certain documents and communications either as privileged attorney-client communications or as attorney work product. Plaintiffs challenge the withholding of these materials asserting that neither the attorney-client privilege nor attorney work product protection applies to these materials because of the fiduciary exception. Plaintiffs also assert that the privilege logs are deficient. (Id.).
This case arises from Plaintiff Moyle's former employment with Golden Eagle Insurance Company and later with Liberty Mutual Insurance, which acquired Golden Eagle in 1997. Plaintiff was employed by Golden Eagle in 1988 and was discharged by Liberty Mutual in 2002. In this lawsuit, among other things, Plaintiff asserts that he was misled regarding the extent to which his service at Golden Eagle would be attributed to Liberty Mutual and has sued for improperly withheld benefits.
There is a lengthy history of litigation between these parties which bears recounting. Plaintiff Moyle first sued Golden Eagle and Liberty Mutual for wrongful termination in the Superior Court for the State of California. That case was removed by the defendants to this court in December 2002. (Case No. 02cv2468). In January 2003, Plaintiff dismissed the action. Plaintiff sued these defendants again in February 2003 in the Superior Court of the State of California alleging, among other things, that his pension benefits improperly were denied. That case was removed to this Court in March 2003. (Case No. 03cv509). The district court determined that Plaintiff's claims for benefits were pre-empted by ERISA and, since they were not properly pled, dismissed those claims with leave to amend. When Plaintiff opted not to amend his complaint, the district court remanded the case back to state court. (Id. at ECF Nos. 23, 25). In March 2005, Plaintiff sued these defendants in this court alleging ERISA violations. (Case No. 05cv507). The district court dismissed the complaint with prejudice for failure to state a claim because Plaintiff had not exhausted his administrative remedies. (Id. at ECF No. 32). The dismissal was upheld by the Ninth Circuit. (Id. at ECF No. 45).
Case No. 05cv507 was closed in November 2007. On January 26, 2008, Plaintiff Moyle presented his claim for benefits to the Liberty Mutual Retirement Benefit Plan. (ECF No. 143 at 2). Other identified Plaintiffs in this case joined in the claim. (Id.). The claims initially were denied on April 28, 2008. (Id.). In the denial letter, Plaintiff was invited to seek administrative review of the decision. (Id.). On June 20, 2008, Plaintiff sought review of the decision denying his claim for benefits. His claim was finally denied on October 23, 2009. (Id. at 3).
This lawsuit followed on October 19, 2010.
The Instant Discovery Dispute Hewitt Associates, LLC ("Hewitt") is the record-keeper for the Liberty Mutual Retirement Benefit Plan. (ECF No. 143-3 at 2). Conrad Group International ("Conrad") is a human resources consulting firm hired by Defendants to conduct interviews and prepare affidavits for individuals believed to have knowledge of meetings held with Golden Eagle employees regarding the purchase of certain Golden Eagle assets by Libery Mutual. (Id.).
Subpoenas with document requests were served upon Hewitt and Conrad by Plaintiffs. (ECF No. 143 Exhs. A, B). Due to the relationship between these entities and Defendants, Defendants conducted a privilege review of documents collected by these entities for production pursuant to Plaintiffs' subpoenas. (ECF No. 143-3 at 2). From the documents collected by Hewitt, Defendants report that 283,743 pages of documents have been produced to Plaintiffs. (Id.) Withheld and challenged by Plaintiffs are approximately 358 pages of documents from Hewitt consisting primarily of a thread of ten electronic mails and attachments.
Regarding Conrad, approximately 92 pages of documents have been produced to Plaintiffs. (Id. at 3). Eight pages have been withheld and are challenged by Plaintiffs.
Plaintiffs challenge first the adequacy of the privilege log and, more significantly, challenge any assertion of privilege by Defendants due to the fiduciary exception to the attorney-client privilege. All of the challenged ...