Moyle et al v. Liberty Mutual Retirement Benefit Plan et al

Filing 177

ORDER denying 172 Motion for Reconsideration of 160 Regarding the Production of Certain Hewitt Documents. As provided herein, the motion for reconsideration is denied. Signed by Magistrate Judge Mitchell D. Dembin on 10/15/12. (Dembin, Mitchell)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

GEOFFREY MOYLE, et al.,

CASE NO. 10cv2179-GPC (MDD)
Plaintiffs,

12

ORDER DENYING MOTION
FOR RECONSIDERATION OF
THE COURT’S ORDER ON THE
DISCOVERY DISPUTE
REGARDING PRIVILEGE

vs.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

LIBERTY MUTUAL RETIREMENT
BENEFIT PLAN, et al.,

[ECF NO. 172]

Defendants.

On September 27, 2012, the Court ruled on the joint motion of the parties for a
determination of a discovery dispute regarding documents withheld on the basis of
attorney client and work product privilege. (ECF No. 160). At issue was the extent
to which the fiduciary exception to the attorney client privilege applied to the
withheld documents. The Court found that some documents properly were withheld
and that others were subject to the fiduciary exception and had to be disclosed. Id.
Defendants have moved the Court to reconsider its decision that certain Hewitt
documents, specifically those numbered Hewitt Priv 324-355, are to be disclosed.
(ECF No. 172). The Court has reviewed the motion, the memorandum of points and
authorities submitted with the motion, the Declaration of Ashley Abel submitted
under seal and again reviewed the documents which had previously been submitted
for in camera review. The Court is not convinced that its earlier ruling was in error.
-1-

10cv2179 GPC (MDD)

1

The motion for reconsideration is DENIED.
Discussion

2

Defendants assert that although the documents were created during the period

3
4

of time that Plaintiffs’ administrative claim was pending, the context in which those

5

documents were created mitigates in favor of privilege. The documents consist of an

6

electronic mail thread covering March 25, 2009, through April 9, 2009, reflecting

7

communications between John St. Martin, the now-deceased pension and savings

8

benefits manager of Liberty Mutual and personnel of Hewitt Associates, LLC, the

9

record-keeper of the Liberty Mutal Retirement Benefit Plan. At the time of the

10

communications, Plaintiffs’ initial claim for benefits had been denied by Mr. St.

11

Martin and the denial was pending review by Defendants’ Retirement Benefit Board.

12

In his Declaration, Mr. Abel, outside litigation counsel for Liberty Mutual, asserts

13

that the communications were the result of requests that he made to Mr. St. Martin

14

for information in anticipation of litigation. Inasmuch as this is not obvious from the

15

content of the communications, and was not shown in the earlier motion, Defendants

16

have moved for reconsideration. See CivLR 7(i)(1).
Despite the fact that the communications at issue were initiated by a query

17
18

from outside litigation counsel to Mr. St. Martin, the Court finds that the fiduciary

19

exception applies. The communications at issue involve calculations of plan benefits

20

under several hypothetical scenarios. In that regard, the communications appear

21

quite similar to those at issue in Stephan v. Unum Life Ins. Co., ___ F.3d ____, 2012

22

WL 3983767, *13 (9th Cir. Sept. 12, 2012). In finding the documents subject to the

23

fiduciary exception in that case, the Court of Appeals observed:
The documents at issue are notes of conversations between Unum
claims analysts and Unum’s in-house counsel about how the insurance
policy under which Stephan was covered ought to be interpreted and
whether Stephan’s bonus ought to be considered monthly earnings
within the meaning of the plan.

24
25
26
27
28

Id.
Here, the communications are alternative calculations of plan benefits based
-2-

10cv2179 GPC (MDD)

1

upon different start dates. At the time of the communications, Plaintiffs’

2

administrative appeal had been pending for about one year and would not be decided

3

for another four months. As in Stephan, Mr. Abel’s Declaration notwithstanding,
The context of the documents at issue here – communications in advance
of Unum’s decision on Stephan’s appeal – indicates that their goal was
the determination of Stephan’s pre-disability earnings, a matter of plan
administration, and was not preparation for litigation.

4
5
6

Id. Substitute Liberty Mutual for Unum, Plaintiffs for Stephan and determination of
7
benefits under different vesting scenarios for pre-disability earnings, and we have our
8
case.
9
Defendants place great emphasis on the litigation history between Plaintiff
10
Moyle and Defendants. While it no doubt was true that Plaintiff would sue if he
11
received an adverse decision on his appeal, that fact does not mean that the interests
12
of the fiduciary and the plan beneficiary sufficiently had diverged at the time of the
13
communications. The Ninth Circuit has agreed with the courts that have held “that
14
it is not until after the final determination – that is, after the final administrative
15
appeal – that the interests of the Plan fiduciary and the beneficiary diverge for
16
purposes of the fiduciary exception.” Id. Nothing in the communications reflect that
17
they were in anticipation of litigation and there is no discussion of any possible
18
personal liability of the fiduciary. The context added by Defendants in support of
19
reconsideration, that these calculations were run at the request of Mr. Abel with
20
litigation in mind, does not change the fact that the various permutations of benefits
21
under different scenarios remain a matter of plan administration while the appeal
22
was pending.
23
//
24
//
25
//
26
//
27
//
28
//
-3-

10cv2179 GPC (MDD)

Conclusion

1
2

The motion for reconsideration is DENIED. Absent further order of the Court

3

or agreement of the parties, production of the disputed documents must occur no later

4

than October 25, 2012.

5
6

IT IS SO ORDERED.
DATED: October 15, 2012

7
8
9

Hon. Mitchell D. Dembin
U.S. Magistrate Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-

10cv2179 GPC (MDD)