Luper v. Board of Trustees of the Police & Fire Retirement System of Wichita, Kansas et al

Filing 57

MEMORANDUM AND ORDER denying 51 Motion for Review. Signed by District Judge Eric F. Melgren on 4/19/2018. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JEFFREY L. LUPER,
Plaintiff,

vs.

Case No. 15-1399-EFM-KGG

BOARD OF TRUSTEES OF THE POLICE
& FIRE RETIREMENT SYSTEM OF
WICHITA KANSAS,
Defendants.

MEMORANDUM AND ORDER
The matter before the Court is Plaintiff Jeffrey Luper’s Motion for Review (Doc. 51). He
seeks review and reversal of Magistrate Judge Gale’s Order denying his Motion to Compel. He
argues that Judge Gale erred in finding that the fiduciary exception to attorney-client privileged
work was inapplicable in this case. As will be explained below, the Court denies Plaintiff’s motion
and affirms Judge Gale’s decision.
I.

Factual and Procedural Background

Plaintiff Jeffrey Luper brings suit against Defendant Board of Trustees of the Police and
Fire Retirement System of Wichita (“the Board”) under 42 U.S.C. § 1983. He claims that
Defendant violated his right to due process by failing to timely determine whether he is eligible
for disability retirement benefits. Plaintiff first applied for disability benefits in August 2011. The

Board denied his claim in November 2011. Plaintiff then sought judicial review of this decision.
Over the next two years, the case was before the Kansas courts. On May 24, 2013, the Kansas
Court of Appeals found that the Board acted arbitrarily and capriciously in rejecting a physician’s
opinion and remanded the case to the district court to remand Plaintiff’s application to the Board.
The Board sought additional medical records and evaluations. Plaintiff provided the Board
with the additional medical records and participated in an exam in August 2014. On December
23, 2015, Plaintiff filed his lawsuit in this Court alleging that his due process rights under § 1983
were violated because the Board had engaged in unreasonable delay and had not yet rendered a
decision on his application.1
During discovery, Plaintiff sought “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,” as well as the dates of, senders, recipients, and
individuals who received those communications.

In addition, Plaintiff asked Defendant to

“identify 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, Defendant identified some documents but withheld some documents on the basis of
attorney-client privilege or work-product.2
Plaintiff filed a Motion to Compel arguing that although Defendant’s documents were
protected by attorney-client privilege, the fiduciary exception to the attorney-client privilege

1

Defendant Board issued a decision approximately six months after Plaintiff filed his lawsuit in this Court
(and approximately three years after the case was remanded to the Board from the Kansas Court of Appeals).
2
Plaintiff contends that Defendant “held back hundreds of emails and documents generated during the
Board’s consideration of [Plaintiff’s] claim for service-connected disability benefits.”

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doctrine prevented Defendant from asserting it on pre-decisional legal advice and related
documents from beneficiaries. Defendant objected and stated that the fiduciary duty exception
was inapplicable to the facts of this case.3 Judge Gale determined that Plaintiff failed to meet his
burden in establishing the applicability of the fiduciary exception. Thus, he did not compel
Defendant to produce the documents Plaintiff sought. Plaintiff now seeks review of Judge Gale’s
decision.
II.

Legal Standard

When reviewing a magistrate judge’s order relating to non-dispositive matters, the district
court does not conduct a de novo review but instead applies a more deferential standard.4 Only if
the district court finds that the magistrate judge’s decision is “clearly erroneous or is contrary to
law” will the district court set it aside.5 “A finding is ‘clearly erroneous’ when although there is
evidence to support it, the reviewing court on the entire evidence is left with a definite and firm
conviction that a mistake has been committed.”6 And a finding is “contrary to law” if it “fails to
apply or misapplies relevant statutes, case law or rules of procedure.”7

3

Plaintiff only seeks review of the application of the fiduciary exception to attorney-client privilege.

4

Gilmore v. L.D. Drilling, Inc., 2017 WL 5904034, at *1 (D. Kan. 2017).

5

Fed. R. Civ. P. 72(a).

6

Boone v. TFI Family Servs., Inc., 2015 WL 5568348, at *2 (D. Kan. 2015) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)).
7

Walker v. Bd. of Cty. Comm’rs of Sedgwick Cty., 2011 WL 2790203, at *2 (D. Kan. 2011) (citation omitted).

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III.

Analysis

“[A]ttorney-client communications may not be privileged if the communications involve
legal advice rendered to fiduciaries in the execution of their fiduciary duties.”8 The fiduciary
exception is well recognized, but “neither the Tenth Circuit nor Kansas Supreme Court has
addressed the fiduciary exception and the manner in which courts should apply it.”9 In addition,
“courts have generally found the fiduciary exception inapplicable to communications made during
a time when the parties’ interests were not aligned or when the subject of the communications did
not involve matters that a fiduciary would owe a duty to disclose to a beneficiary.”10
Plaintiff complains that Judge Gale’s finding that the fiduciary exception to the attorneyclient privilege doctrine fails when the fiduciary owes duties to any beneficiary other than the
claimant is erroneous and arbitrarily limits the exception. Plaintiff also asserts that Judge Gale
failed to cite to any law to support this proposition. Yet, Judge Gale cited to a District of Kansas
case, Herrmann v. Rain Link, Inc.,11 in which the Court discussed how the parties’ mutuality of
interest (or lack thereof) would impact the fiduciary exception. Specifically, Judge Gale noted
language from Herrmann that stated:
[W]hen 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’ interest; so, it would
make little sense to consider the beneficiaries the true clients of the attorney and
8
Herrmann v. Rain Link, Inc., 2012 WL 1207232, at * (D. Kan. 2012) (citing Garner v. Wolfinbarger, 430
F.2d 1093 (5th Cir. 1970)).
9

Id.

10

Id.

11

Id.

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therefore entitled to disclosure. Likewise, fiduciaries do not have a duty to keep
beneficiaries informed of all matters. It naturally follows that the fiduciary
exception applies only to communications involving fiduciary matters.12
Judge Gale then found that Plaintiff did not establish a “mutuality of interest” between himself and
Defendant. He found that the lack of mutuality of interest was evidenced (1) by Defendant’s duty
to other potential beneficiaries to not pay out benefits to an applicant who was not entitled to
benefits, and (2) by the “quasi-judicial” hearing process that Plaintiff was provided on his claim
in which Plaintiff could be represented by counsel. Because there was no mutuality of interest,
Judge Gale determined that the fiduciary exception was inapplicable. Thus, he denied Plaintiff’s
motion to compel attorney-client privileged documents.
In this case, Judge Gale discussed case law applicable to the fiduciary exception. In making
a determination that the fiduciary exception was inapplicable because there was no mutuality of
interest between the parties, he relied on facts present in this case.13 Plaintiff does not identify any
basis that Judge Gale’s decision was clearly erroneous or contrary to law. Indeed, it appears as
though Plaintiff just disagrees with the ruling. Accordingly, the Court denies Plaintiff’s motion.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Review (Doc. 51) is
DENIED.
IT IS SO ORDERED.
Dated this 19th day of April, 2018.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

12

Id. at *7 (citations omitted).

13

Those facts are noted above.

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