Luper v. Board of Trustees of the Police & Fire Retirement System of Wichita, Kansas et al
Filing
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MEMORANDUM AND ORDER denying 42 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 7/28/17. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JEFFREY L. LUPER,
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Plaintiff,
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v
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BOARD OF TRUSTEES OF THE POLICE )
& FIRE RETIREMENT SYSTEM OF
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WICHITA, KANSAS,
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Defendants,
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___________________________________ )
Case No. 15-1399-EFM-KGG
ORDER ON MOTION TO COMPEL
Now before the Court is the Motion to Compel filed by Plaintiff seeking
documents withheld by Defendant Board of Trustees on the basis of the attorneyclient privilege. (Doc. 42.) Having reviewed the submissions of the parties,
Plaintiff’s motion is DENIED.
BACKGROUND
Plaintiff alleges that he has a “legitimate claim of entitlement to service
connected disability benefits” from the Police & Fire Retirement System of
Wichita, Kansas (“Retirement System”). (See Doc. 1, at 8.) Plaintiff claims that
Defendant Board of Trustees (“Defendant” or “the Board”) violated Plaintiff’s
Constitutional Right to due process rights as a result of an on-going, unreasonable
delay in determining whether the is entitled to disability benefits under the
Retirement System. (Id., at 9.)
The present motion relates to Plaintiff’s Request for Production No. 1 and
Interrogatories Nos. 5, 6, and 7. Request No. 1 sought “[a]ll documents identified
in response to interrogatories.” Interrogatory No. 5 asked Defendant to “[i]dentify
all written communications between any attorney and the Board that address
[Plaintiff’s] claim for service-connected disability benefits, as well as any
documents that reflect such communications.” Interrogatory No. 6 sought the
dates of, senders, recipients and individuals who received every written
communication identified in response to Interrogatory No. 5. Finally,
Interrogatory No. 7 asked Defendant to “[i]dentify all minutes, notes, and
recording of every executive or nonpublic session of the Board in which
[Plaintiff’s] claim for service-connected disability benefits was addressed with an
attorney.”
In response to these discovery requests, Defendant provided certain
documents but, according to Plaintiff, “held back hundreds of emails and
documents generated during [Defendant’s] consideration of [Plaintiff’s’ claim” for
benefits. (Doc. 43, at 2.) Defendant withheld the documents on the basis of the
attorney-client privilege and/or work product doctrine. Plaintiff contends that the
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fiduciary exception to the privilege “prevents [Defendant[ from asserting predecisional legal advice and related documents from beneficiaries” such as
Plaintiff.1 (Id., at 3.)
DISCUSSION
Fed.R.Civ.P. 26(b) states that “[p]arties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense of any party . . .
Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” As such,
the requested information must be both nonprivileged and relevant to be
discoverable. Plaintiff’s motion focuses on Defendant’s claim of the attorneyclient privilege for the documents in question.
The application of the attorney-client privilege in this District was recently
summarized by Magistrate Judge O’Hara in the case of In re Syngenta Ag Mir 162
Corn Litigation:
Fed. R. Civ. P. 26(b)(1) limits discovery to
‘nonprivileged matters.’ Because this litigation arises out
of a federal statutory scheme, federal law governs the
application of the attorney-client privilege. Under
federal common law, the essential elements of the
attorney-client privilege are: (1) where legal advice of
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The Court notes that Plaintiff does not seek all items contained in Defendant’s
privilege log, only those that have been highlighted. (See generally Doc. 43-3.)
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any kind is sought (2) from a professional legal advisor
in his capacity as such, (3) the communications relating
to that purpose, (4) made in confidence (5) by the client,
(6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) except if
the protection is waived. Although this description
suggests that the privilege only operates to protect the
client’s communications to a lawyer, the Tenth Circuit
recognizes that a lawyer’s communication to a client is
also protected if it is ‘related to the rendition of legal
services and advice.’ The party asserting the privilege
bears the burden of establishing that the elements are
met.
No. 14-2591-JWL, 2017 WL 386835, at *4 (D. Kan. Jan. 27, 2017) (internal
citations omitted).
The party withholding documents subject to the privilege must submit a
privilege log, which is required to include:
(1) A description of the document explaining whether the
document is a memorandum, letter, e-mail, etc.; (2) The
date upon which the document was prepared; (3) The
date of the document (if different from # 2); (4) The
identity of the person(s) who prepared the document; (5)
The identity of the person(s) for whom the document was
prepared, as well as the identities of those to whom the
document and copies of the document were directed,
including an evidentiary showing based on competent
evidence supporting any assertion that the document was
created under the supervision of an attorney; (6) The
purpose of preparing the document, including an
evidentiary showing, based on competent evidence,
‘supporting any assertion that the document was prepared
in the course of adversarial litigation or in anticipation of
a threat of adversarial litigation that was real and
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imminent;’ a similar evidentiary showing that the subject
of communications within the document relates to
seeking or giving legal advice; and a showing, again
based on competent evidence, ‘that the documents do not
contain or incorporate non-privileged underlying facts;’
(7) The number of pages of the document; (8) The party's
basis for withholding discovery of the document (i.e., the
specific privilege or protection being asserted); and (9)
Any other pertinent information necessary to establish
the elements of each asserted privilege.
Leftwich v. City of Pittsburg, Kansas, No. 16-2112-JWL-GLR, 2017 WL
1338838, at *2 (D. Kan. April 12, 2017) (citing BridgeBuilder Tax + Legal Servs.,
P.A. v. Torus Specialty Ins. Co., No. 16-2236-JWL-GEB, 2017 WL 914809, at *4
(D. Kan. Mar. 8, 2017) (citations omitted)). “The objecting party must provide
enough information in the privilege log to enable the withholding party, and the
Court, to assess each element of the asserted privilege and determine its
applicability.” Leftwich, 2017 WL 1338838, at *2.
As stated above, Plaintiff complains that Defendant
objected to identifying, describing, and producing
hundreds of written communications generated by, sent,
or received by [Defendant’s] attorneys during
[Defendant’s] consideration of [Plaintiff’s] claim.
[Defendant] objected to producing notes of nonpublic
sessions as well. [Defendant] claims the documents and
information are protected as privileged or work product.
[Plaintiff] disputes [Defendant’s] objections to Request
for Production No. 1, and Interrogatory Nos. 5, 6, and 7.
(Doc. 43, at 2.) Plaintiff has highlighted items enumerated in Defendant’s
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privilege log which Plaintiff contends “ were generated while [Plaintiff’s] claim
resided with the Board, i.e., when the claim was not on appeal to the Sedgwick
County District Court or to the Kansas Court of Appeals.” (Id.) According to
Plaintiff, “[u]nder prevailing law, such ‘pre-decisional’ legal advice is
discoverable.” (Id.)
Plaintiff’s motion is devoid of specific argument that the information at issue
fails to qualify as attorney-client communication or work product materials. (See
generally, id.) Rather, Plaintiff argues that the fiduciary exception to the attorneyclient privilege makes the information discoverable. (Id., at 3.) Plaintiff has the “
burden to show the fiduciary exception applies to the privileged or
work-product-protected documents.” Hermann v. Rain Link, Inc., No. 11-1123RDR-KGS, 2012 WL 1207232, at *9 (D. Kan. April 11, 2012) (citations omitted).
The Court is thus tasked with determining whether Plaintiff has met that burden.
Plaintiff cites the case of Lewis v. UNUM Corp. Severance Plan for the
proposition that the “fiduciary exception derives from the principle that when an
attorney advises a plan fiduciary about the administration of an employee benefit
plan, the attorney’s client is not the fiduciary personally but, rather, the trust’s
beneficiaries.” 203 F.R.D. 615, 619 (D. Kan. 2015) (citations omitted). “Because
denying benefits to a beneficiary is as much a part of the administration of a plan
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as conferring benefits to a beneficiary, the prospect of post-decisional litigation
against the plan is an insufficient basis for gainsaying the fiduciary exception to the
attorney-client privilege.” Id., at 620.
Plaintiff contends that he is “entitled to all the highlighted items on
[Defendant’s] privilege log” because the documents “were generated as part of
ordinary plan administration.” (Doc. 43, at 4.) Defendant has admitted that it “has
a fiduciary obligation to administer [the Retirement System] for the exclusive
benefit of the System’s members and their beneficiaries.” (Id., at 4; Doc. 43-4, at
2.)
Defendant responds that the fiduciary exception does not apply in this
situation because Plaintiff is not the “real client” of the attorneys relating to the
documents at issue. (Doc. 45, at 7.) In support of this argument, Defendant cites
the District of Kansas case of Hermann v. Rain Link, Inc., supra, which states
when there is no mutuality of interest between the
fiduciary and beneficiary, the reasons for applying the
fiduciary exception fade. For example, a number of
courts have noted the fiduciary exception does not apply
when fiduciaries seek legal advice for their own
protection against beneficiaries or when fiduciaries seek
legal advice about non-fiduciary matters. When
fiduciaries seek legal advice in this capacity, their
interests are not aligned with the beneficiaries’ interests;
so, it would make little sense to consider the beneficiaries
the true clients of the attorney and therefore entitled to
disclosure. Likewise, fiduciaries do not have a duty to
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keep beneficiaries informed of all matters. It naturally
follows that the fiduciary exception applies only to
communications involving fiduciary matters.
No. 11-1123-RDR-KGS, 2012 WL 1207232, at *7 (D. Kan. April 11, 2012).2
Applying the Hermann holding to the present matter, Defendant argues that
there is “no rationale or legal basis exists to apply a ‘fiduciary exception’ to the
privileged documents listed in defendant’s privilege log.” (Doc. 45, at 9.)
Defendant continues that “[t]here is no mutuality of interest between the plaintiff (a
potential beneficiary) and defendant Board.” (Id.) Further, while Defendant has a
fiduciary duty to Plaintiff “to decide his claim fairly based on the relevant criteria,
[Defendant] has an equal fiduciary duty to the other potential beneficiaries not to
pay out benefits to an applicant who is not entitled to such benefits.” (Id.)
Defendant also contends that Plaintiff’s reliance on the Lewis v. UNUM
case, supra, is misplaced because it is an ERISA case and it predates the cases
cited by Defendant by a decade. (Doc. 45, at 10.) Plaintiff, on the other hand,
argues that Hermann is inapplicable because it relates to fiduciary duties owed to a
minority shareholder in the defendant corporation in the context of an Americans
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Defendant also cites the United States Supreme Court decision in U.S. v.
Jicarilla Apache Nation, 131 S.Ct. 2313, 2320-2322 (2011), which discusses the
fiduciary exception in the context of a breach-of-trust action brought in the Court of
Federal Claims (CFC), seeking monetary damages for the federal government’s alleged
mismanagement of the tribe’s trust funds.
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with Disabilities Act claim. (Doc. 46, at 2.) Plaintiff also distinguishes Jicarilla as
irrelevant because that “holding is based upon the ‘distinctive’ relationship
between the United States and the Indian tribes . . . .” (Id.)
The Court finds that Plaintiff has failed to meet his burden to establish the
applicability of the fiduciary exception to documents otherwise protected by the
attorney-client privilege or work-product doctrine in this case. Hermann, 2012
WL 1207232, at *9. Plaintiff has not established that a “mutuality of interest”
existed between Plaintiff and Defendant in the context of the legal advice at issue.
As stated by Defendant, it “has an equal fiduciary duty to the other potential
beneficiaries not to pay out benefits to an applicant who is not entitled to such
benefits.” (Doc. 45, at 9.) The lack of mutuality of interest between Plaintiff and
the Board is further evidenced by the fact that Plaintiff was provided what the
District Court described as a “quasi-judicial” hearing process, during which he had
the right to be represented by counsel of his own. (See Doc. 28, at 11-12.) The
District Court also acknowledged that “the Board’s action in denying a disability
claim is likely to result in a damages lawsuit by the disappointed party.” (Id., at
12.) Clearly there is no mutuality of interest – and the fiduciary exception does not
apply – when the fiduciaries have sought legal advice for their own protection
against beneficiaries. Plaintiff’s motion is devoid of factual support to show
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otherwise. Plaintiff’s motion is, therefore, DENIED.
IT IS THEREFORE ORDERED that Plaintiff’s motion (Doc. 42) is
DENIED.
IT IS SO ORDERED.
Dated this 28th day of July, 2017.
S/ KENNETH G. GALE
Kenneth G. Gale
United States Magistrate Judge
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