Metzgar et al v. U.A. Plumbers and Steamfitters Local No. 22 Pension Fund et al

Filing 128

DECISION and ORDER. Plaintiffs' motion, Dkt. 86, is GRANTED in part, DENIED in part, and DISMISSED as moot in part. As the court finds that there is a colorable basis to find Defendants failed to provide the requested discovery with respect to certain of Plaintiffs document requests was without substantial justification, Defendants shall, pursuant to Fed.R.Civ.P. 37(a)(5)(A), show cause not later than 20 days of this Decision and Order why Plaintiffs expenses incurred in connection with Pl aintiffs' motion should not be awarded; Plaintiffs' response shall be filed within 10 days thereafter; any reply shall be filed within five days. Oral argument shall be at the court's discretion. Signed by Hon. Leslie G. Foschio on 6/6/2018. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

GARY METZGAR. RICHARD MUELLER.
KEVIN REAGAN, RONALD REAGAN.
CHARLES PUGLIS, SHERWOOD NOBLE,

DECISION
and

ORDER

DANIEL O'CALLAGHAN,
Plaintiffs,

13-CV-85V(F)

V.

U A PLUMBERS AND STEAMFITTERS LOCAL
NO. 22 PENSION FUND,
BOARD OF TRUSTEES OF U.A. PLUMBERS AND

tfgeS^ISTg^
FILED

STEAMFITTERS LOCAL NO. 22 PENSION FUND, and
DEBRA KOROPOLINSKI, in her capacity as Plan
Administrator, for the U.A. Plumbers and Steamfitters
Local 22 Pension Fund,

□ISTB^Si

Defendants.

APPEARANCES:

CHRISTEN ARCHER PIERROT, ESQ.
Attorney for Plaintiffs
3959 N. Buffalo Road

Orchard Park, New York 14127
COLLIGAN LAW LLP

Attorneys for Plaintiffs
A. NICHOLAS FALKIDES,
MATTHEW K. PELKEY, of Counsel
12 Fountain Plaza, Suite 600
Buffalo, New York 14202
BLITMAN & KING

Attorneys for Defendants
DANIEL R. BRICE,
JULES L. SMITH, of Counsel
The Powers Building
16 West Main Street, Suite 207
Rochester, New York 14614

This action alleging violations of ERISA's anti-cutback provision, 29 U.S.C. §
1054(g), wrongful denial of pension benefits, and Defendants' breach of fiduciary duty
was referred to the undersigned by Hon. Richard J. Arcara for all pretrial matters on
October 29, 2014 (Dkt. 40). It is presently before the court on Plaintiffs' motion to

compel discovery filed November 15. 2017(Dkt. 86)("Plaintiffs' motion"). Plaintiffs are
beneficiaries of an ERISA covered pension plan ("Plan") administered by Defendants as

trustees of a Pension Fund ("the Fund") established by a trust ("Trust") established by Plaintiffs'
labor union and participating employees in 1999. Between 2002 and 2008, Plaintiffs were
granted early retirement pensions by Defendants under the terms of the Plan. In late

2011, Defendants concluded that Plaintiffs' continued employment with participating
employers in non-disqualifying work meant Plaintiffs had not in fact retired when

Plaintiffs' applications for early retirement pensions were approved by Defendants and
that pursuant to provisions of the Internal Revenue Code applicable to VCP pension
trusts like the Fund, Plaintiffs' continued receipt of early pension benefits jeopardized
the continued VCP status of the Fund. Defendants accordingly determined that
because the terms of the Trust required the Plan be administered to preserve its tax
except status Plaintiffs' pensions had been erroneously approved under the terms of the
Plan at that time and in early 2012 required Plaintiffs to terminate their employment with
participating employers or forgo further monthly pension benefit payments. For those
Plaintiffs who continued to receive pensions. Defendants also reduced Plaintiffs'

benefits in order to partially recover the prior, improperly awarded benefits. For those
Plaintiffs who refused to terminate their employment, their pension benefits were
terminated until they reach age 65. In May 2012, in order to avoid an I.R.S. audit and
potential loss of the Fund's VCP status. Defendants also advised the I.R.S. of Plaintiffs'

erroneously approved pensions and that Defendants had sought to compel Plaintiffs'
compliance with Defendants' demands and that Defendants had formally amended the

Plan to assure its compliance with all applicable I.R.S. regulations and rulings, including
in the case of early retirement a complete termination of any further employment with a
2

participating employer, which submission was accepted by the I.R.S. without adverse
action against the Fund.

Specifically, Plaintiffs seek documents responsive to Plaintiffs' Second Set of

Document Requests served October 13, 2017, Request No. 8(Defendants'
communications with the Internal Revenue Service, in particular, regarding Defendants'
Voluntary Compliance Program ("VCP") submission to the Internal Revenue Service);
Request No. 9(the rate of return from 2002 to present on Defendants' plan assets);
Request No. 10(agenda and minutes of Defendants' trustees' meetings at which
Plaintiffs* applications for early retirement benefits were approved); Request No. 11
(agendas and minutes for all Defendants' trustees' meetings at which the alleged

overpayment of participants' early retirement benefits was discussed); and Request No.

12(agendas and minutes of all Defendants' trustees' meetings at which Plaintiffs' case
was discussed)("Plaintiffs' Requests"). In Defendants' response, dated October 13,

2017 (Dkt. 90), Defendants objected to Plaintiffs' Requests based on lack of relevancy,
vagueness, overbreadth and attorney-client privilege. In opposition to Plaintiff's motion,
Defendants contend Plaintiffs failed to comply with Fed.R.Civ.P. 31(a)(1) which requires

parties meet and confer in a good faith effort to avoid the need for judicial intervention.
Defendants have provided copies of Defendants' VCP documents responsive to
Plaintiffs' Request No. 8, and copies of a document showing the rate of return on

Defendants' plan assets responsive to Plaintiffs' Request No. 9. Dkt. 90 at 4-6.
Defendants further opposed Plaintiffs' motion on the grounds that some documents

responsive to Plaintiffs' Requests Nos. 10-12 were redacted either because the

redacted portions included irrelevant information such as material relevant to plan

participants other than Plaintiffs, irrelevant matters such as disability benefits, plan

investments and investment manager performance, asset transfers, document retention
policies, annual audits, governmental filings other than the VCP documents, and

funding actions. Dkt. 89 at 8-9. Other documents responsive to Plaintiffs' Requests
Nos. 10-12 were redacted or withheld based on attorney-client privilege and are
described in Defendants' Privilege Log. Dkt. 90-10 at 2-5. As to Plaintiffs' Requests
No. 10-12, Plaintiffs asserted that the presence of third-parties at several of Defendant
trustees' meetings and partial production of the requested minutes had waived
Defendants' privilege objection. Dkt. 86 ffll 21-22.

In Plaintiffs' Reply Memorandum (Dkt. 92)("Plaintiffs Reply"), Plaintiffs contend

that Plaintiffs complied with Rule 37(a)1) to the extent time and the constraints imposed
by the Third Amended Scheduling Order's cut-off date of November 15, 2017(see Dkt.
78), filed August 29, 2017, leaving the parties a limited period within which to engage in
further production regarding Defendants' trustees' meetings such that further
negotiations were rendered futile. Dkt. 92 at 1-2. Plaintiffs also contend that the

fiduciary exception to the attorney-client privilege requires Defendants produce
unredacted and withheld documents responsive to Plaintiffs Requests Nos. 10-12. Dkt.

92 at 3-4. Plaintiffs further contend that to the extent such responsive documents were
prepared in the normal form of routine business purposes no privilege attaches. Id. at 6

(citing cases).^ Plaintiffs additionally argue the Defendants' partial production of
redacted materials constitutes selective production and a subject-matter waiver of

Defendants' asserted privilege. Dkt. 92 at 8. Finally, Plaintiffs request the court

^ This contention has relevance to a ciaim of work-product protection pursuant to Fed.R.Civ.P.
26(b)(3)(A), an objection not raised by Defendants, not attorney-client privilege. See United States v.
Acquest Transit LLC, 319 F.R.D. 83, 91 (W.D.N.Y. 2017)(work product protection inappiicable to
documents created in typical form despite potential for litigation).
4

conduct an in camera review of the disputed records. Dkt. 92 at 9. In Defendants' Sur-

Reply, Defendants oppose Plaintiffs' belated assertions of the fiduciary exception as

first raised in Plaintiffs' Reply. Dkt. 96 at 4-5 (citing cases). Defendants also argue that
Plaintiffs failed to contest Defendants' representation that much of the responsive
redacted material Defendants produced dealt with irrelevant matters and that these

documents are therefore not in dispute. Dkt. 96 at 7. Defendants also state that at only
two trustees' meetings for which agendas/minutes were withheld as privileged,
November 11, 2016 and February 24, 2017, Dkt. 90^ 29, the Fund's actuary was
present to assist in discussion of the instant litigation of by Defendants and Defendants'
attorney. Dkt. 96 at 7. Defendants further asserted that even if the fiduciary exception
were considered it is inapplicable to Defendants' consideration of potential adverse
legal and financial repercussions to the Fund arising from Defendant's "operational

error" in granting early retirement benefits to Plaintiffs which, in retrospect, according to
Defendants, violated both the terms of the Trust, upon which the Plaintiffs' Pension Plan

is based, and applicable provisions of the Internal Revenue Code and regulations which
the I.R.S. acknowledged in accepting the Defendants' VCP submission. Dkt. 96 at 8.
Oral argument was conducted December 19, 2017(Dkt. 97)and decision was reserved
to provide a further opportunity for the parties to informally resolve the issues raised by
Plaintiffs' motion. However, the court was subsequently informed that such efforts were
unsuccessful.(Dkts. 126, 127).
1.

Rule 37(a)(1).

Where time constraints limit the practical ability of parties to engage in an

extended good faith attempt to avoid unnecessary discovery motions, and where the
parties are likely to remain in disagreement, courts will not reject motions to compel for

failure to engage in futile efforts to resolve discovery disputes. See United States v.

Acquest Transit LLC, 319 F.R.D. 83, 89-90(W.D.N.Y. 2017)(further Rule 37(a)(1)
discussions unnecessary when parties remained at "loggerheads"); Land Ocean
Logistics, Inc. v. Acqua Gulf Corp., 181 F.R.D. 229. 235(W.D.N.Y. 1998)(time
constraints render further Rule 37(a)(1) unrealistic). Here, while Plaintiffs, by Plaintiffs'
somewhat belated - October 13. 2017- document request, are to an extent responsible
for the shortness of time within which to attempt to resolve, pre-motion, all of the issues
raised by Plaintiffs' motion, even if, as now appears to be the case, the parties could
have resolved Plaintiffs' I.R.S.— V.C.P. documents and rate of return requests,
responsive to Plaintiffs' Requests Nos. 8 and 9. the parties' continued dispute over
Plaintiffs requests for agendas and minutes of Defendant trustees' meetings. Request
Nos. 10-12, would have nevertheless remained open. Accordingly, the court finds, on
this record. Plaintiffs have sufficiently complied with Rule 31(a)(1).
2.

Defendants' VCP Documents.

The record indicates Defendants have provided Plaintiffs with copies of both

Defendants' 2012 VCP submissions and the August 16. 2012 I.R.S. Compliance
Statement in response to Defendants' VCP submission. See Dkt. 90 H 23; Dkt. 90-5 at
3; Dkt. 89 at 7. Plaintiffs nevertheless argue that Defendants' responses indicate there
were two differing versions of the application and that given the importance of the

problem addressed by Defendants' VCP. i.e., Defendants' admission of a significant
non-compliance with applicable I.R.S. regulations which could impair the VCP status of
the Fund, more responsive documents must exist and should be produced. Dkt. 92 at
10. Plaintiffs alternately request Defendants be required to execute I.R.S. Form 4506 to
enable Plaintiffs to obtain such suspected additional documents directly from the

agency. Id. Defendants reiterated Defendants' response that no other responsive

documents exist, that Plaintiffs* Form 4506 request is untimely as discovery concluded
on November 30, 2017, and that involving the I.R.S. in this issue would further delay
concluding discovery. Dkt. 96 at 9. It is basic that a party cannot be compelled to
produce documents that do not exist, see Hallmark v. Cohen <S Slamowitz, 302 F.R.D.
295, 299(W.D.N.Y. 2014)(holding defendant not required to have audited financials

prepared to comply with plaintiff's discovery request) and that a requesting party's
speculation to the contrary is an insufficient basis on which to direct further responsive
efforts by a producing party. Trilegiant Corp. v. Sitel Corp., 275 F.R.D. 428, 435

(S.D.N.Y. 2011)(denying motion to compel because movant "cannot simply rely on
speculation that[nonmovant] is withholding documents"(citations omitted)).
Accordingly, Plaintiffs' motion with respect to Defendants' VCP documents should be
DENIED.

3.

Rate of Return.

Plaintiffs do not dispute that Defendants, on November 29, 2017, produced

copies of computer print-outs showing data responsive to Plaintiffs' Request No. 9
purporting, by virtue of the presence of the UBS name on the print-outs, to have been

prepared by Defendants' financial advisor, UBS. Nor do Plaintiffs' dispute that at oral
argument on Plaintiffs' motion conducted December 19, 2017(Dkt. 97), Defendants'
attorney stated that the documents came from UBS. Yet, Plaintiffs demand that

Defendants produce a formally authenticated responsive document. Dkt. 92 at 9. In

Plaintiffs' letter to the court dated January 16, 2018, Dkt. 126, Plaintiffs again demanded

Defendants provide "an affirmative representation" to resolve this issue satisfactory to
Plaintiffs. Dkt. 126 at 3. Although the court finds Plaintiffs' continued insistence for such

authentication, under the circumstances, borders on the picayune, the court,
notwithstanding, assumes Defendants' compliance with Plaintiffs' latest demand will be,

or has been,forthcoming. Accordingly, Plaintiffs' motion as to Plaintiffs' Request No. 9
should be DISMISSED as moot.

(4)

Defendants' Agendas and Minutes.

In response to Plaintiffs' Requests Nos. 10-12, Defendants provided redacted
material and withheld documents as either irrelevant, i.e., relating to persons and
subject matter not involved in the instant case, or as privileged.^ In Plaintiffs' Reply,
Plaintiffs limit their argument to Defendants' assertion of privilege based on waiver and
the so-called fiduciary exception to the attorney-client privilege. Dkt. 92 at 2-4. The
court therefore finds that by Plaintiffs' failure to contest Defendants' representation that
Defendants' unrelated discussions are not relevant and thus need not be produced
Plaintiffs do not require further production of documents which Defendants have
redacted or withheld based on containing irrelevant material. As to such documents.

Plaintiffs' motion is therefore DISMISSED as moot. The court turns to Plaintiffs' request
for production of documents Defendants continue to assert in Defendants' privilege log,
Dkt. 90-10, are privileged.

At the threshold. Defendants argue Plaintiffs' assertion of the fiduciary exception
in Plaintiffs' Reply bars consideration of this argument. Dkt. 96 at 4-5. However, where
a party has been given an opportunity to respond to such new argument the court has

discretion to entertain it. See Pullano v. Chrysler Corporation, 2009 WL 10692145, at

^ Defendants fully responded to Plaintiffs' Request No. 10 seeking copies of Trustees' minutes approving
Plaintiffs' early retirement pensions. See Dkt. 89 n. 3. Plaintiffs do not dispute Defendants' statement.
See Dkt. 92(passim). Thus, Plaintiffs' Request No. 10 is deemed moot and should be DISMISSED as to
this issue.
8

*4 n. 8(W.D.N.Y. Apr. 23, 2009)(citing Ruggeiio v. Warner-Lambert, 424 F.Sd 249, 252
(2d Cir. 2005)), report and recommendation adopted, 2011 WL 13244291 (W.D.N.Y.
July 19, 2011)(Arcara, J.). See also Compania Del Bajo CaronI v. Bollvarlan Republic
of Venezuela, 341 Fed.Appx. 722, 724(2d Cir. 2009). Here, the court granted
Defendants' request to file a sur-reply (Dkt. 95), and Defendants provided a substantive
opposition to Plaintiffs' fiduciary exception assertions, see Dkt. 96 at 8-9. Accordingly,
the court considers Plaintiffs' contention that the fiduciary exception applies to the
requested documents redacted or withheld based on privilege; however, for the reasons
discussed Infra, the court finds such exception irrelevant to Plaintiffs' requests.
The attorney-client privilege attaches to documents containing a confidential
communication by a client seeking legal advice from an attorney made with the intent
that such communication remain confidential unless waived. Robblns & Meyers, Inc. v.
J.M. HuberCorp., 274 F.R.D. 63, 83(W.D.N.Y. 2011)(citing United States v. Int'l Bhd.

of Teamsters, 119 F.3d 210, 214(2d Cir. 1997)(citing In re Grand Jury Subpoena
Duces Tecum Dated September 15, 1983, 731 F.3d 1032, 1036 (2d Cir. 1984))). The
privilege also applies to documents providing such advice to the extent the document
discloses the client's confidential communications. Bell v. Pfizer, Inc., 2006 WL

2529762, *4 (S.D.N.Y. Aug. 31, 2006)(citing caselaw). The burden to establish the
privilege as well as the absence of a waiver is on the party asserting it. Robblns &
Meyers, Inc., 274 F.R.D. at 83(citing Int'l Bhd. of Teamsters, 119 F.3d at 214).
"[C]ommunications between client and attorney intended for publication or
communication to third-parties, are not intended to be confidential when made in order
to obtain legal assistance and therefore are not within the privilege." Id. (citing In re von
Bulow, 828 F.2d 94,102(2d Cir. 1987)(citing United States v. Telller, 255 F.2d 441,
9

447(2d Cir.), cert, denied, 358 U.S. 821 (1958)). Further, client communications with

counsel intended to facilitate preparation of requests to governmental agencies are not

protected from disclosure. Id. (citing cases); see also Bradley v. C.I.R., 209 Fed.Appx.
40, 41 (2d Cir. Dec. 15, 2006)(affirming Tax Court's decision that plaintiff waived

attorney client privilege by disclosing documents to accountant who subsequently
disclosed the documents to the I.R.S. during an audit). Under the fiduciary exception,
communications between fiduciaries, particularly as relevant here, fiduciaries, such as
Defendants, of an ERISA-covered pension plan, and their counsel "intended to assist in

the administration of the plan" are not considered as within the privilege and are
required to be provided to beneficiaries of a plan, like Plaintiffs, as such the real parties
in interest represented by their fiduciaries, upon request. See In re Long Island Lighting
Company v. Long Island Lighting Company, 129 F.Sd 268, 272(2d Cir. 1997).
However, if the requested communication deals with matters of a "plan's design or

amendment," such matters are considered as non-fiduciary in nature, the fiduciary
exception is inapplicable, and the material requested by a beneficiary may be deemed
to be privileged, /d. 271-72.

Here, the record shows that after Defendants became aware that their approval

of Plaintiffs' early retirement benefits were likely to be in violation of I.R.S. regulations,
particularly 26 C.F.R. § 1.401-1 (defining requirements for pension trusts VCP status

including "retirement" of qualified employees), thereby jeopardizing the VCP status of
the Fund, as stated in Defendants' Privilege Log, Dkt. 90-10, Defendants began
discussions with counsel concerning "the retirement issue in this litigation" at a

10

November 11, 2011 meeting.^ Dkt. 90-10 at 2. According to the Privilege Log, these
discussions were continued at the November 16, 2011 and December 7, 2011 Trustees

meetings. Id. at 2-3. Following the November 16, 2011 meeting with counsel regarding
"the retirement issue in this litigation," Dkt. 90-10 at 2, Defendants sent a letter on
November 29, 2011 to Plaintiffs stating that Plaintiffs' continued work with their
respective employers after receiving early retirement benefits rendered such benefits

illegal threatening the VCP status of the Plan. Dkt. 99 at H 34.^ Following the
December 7, 2011 meeting with counsel on the same issue, Dkt. 90-10 at 2,

Defendants sent another letter, on December 27, 2011, to Plaintiffs again informing
Plaintiffs that their early pension benefits were illegal unless Plaintiffs immediately
terminated Plaintiffs' continued employment with a contributing employer and

immediately provided to the Plan evidence of such termination. Dkt. 99 36. Following
three more meetings - January 17, 2012, February 10, 2011, and February 21, 2011,-

with counsel on the same subject matter, i.e., "the retirement issue in this litigation," see
Dkt. 90-10 at 3, Defendants filed with the I.R.S. Defendants' VCP submissions on

March 2, 2012, Dkt. 99 U 49, in which Defendants explained in fair detail how, according
to Defendants, Defendants came to misinterpret and erroneously apply applicable I.R.S.
regulations to Plaintiffs' applications for early employment benefits under the Plan such
that Plaintiffs were, as Defendants represented, awarded pensions without

discontinuing employment with participating employers which the regulations, under a

^ The notion that an actual "retirement" is prerequisite for early retirement pensions from a tax qualified
pension fund is elucidated In I.R.S. P.LR. 201147038, 2011 WL 5893533(Nov. 25, 2011).
" Affidavit of Debra KoropollnskI, Administrator of the Fund, In Support of Defendants' Motion for
Summary Judgment. Because the record on Plaintiffs' motion Insufficiently explains the factual scenario
giving rise to the Instant discovery dispute regarding discovery of the Trustees' meetings at Issue on
Plaintiffs' motion, the court finds it is helpful to refer to Defendant Koropollnskl's affidavit to facilitate a
correct analysis of the merits of Plaintiffs' motion on this Issue.
11

correct application by Defendants of the Plan terms, should have disqualified Plaintiffs

from receiving the pensions for not having fully retired, an error described by
Defendants as based on a "mutual mistake of law," Dkt. 126 at 30, or "a significant Plan
operational error." Dkt. 96 at 8. Defendants also advised the I.R.S. that if Plaintiffs

refused to discontinue such outside employment. Defendants would terminate Plaintiffs'
monthly pension payments. Dkt. 1 H 1(g); Dkt. 126 at 30. Defendants also stated

Defendants did not intend to seek recoupment from Plaintiffs of the benefits mistakenly
yet unlawfully paid and that any adverse financial impact on the Plan had been or would
be ameliorated by future requirement contributions from participating employers. Dkt.
126 at 44.

The record thus demonstrates that the Defendants' discussions with counsel
were intended to obtain advice as to whether Defendants were in violation of federal

laws, provisions of the Internal Revenue Code, particularly 26 U.S.C.§ 401(a) etseq.,
and related regulations governing the VCP status of pension trusts, and necessary

corrective actions to be taken by the Trustees including communicating to Plaintiffs
through the two letters sent by Defendants to Plaintiffs regarding Defendants' legal
predicament, the adverse effects upon Plaintiffs and the actions to be taken against

Plaintiffs as Defendants and Defendants' counsel had manifestly concluded in those
discussions were required. Indeed, in order to persuade Plaintiffs to comply with

Defendants' requests and the seriousness of Defendants' perceived legal difficulty and
its cause, it was likely necessary to spell out such facts in Defendants' letters to

Plaintiffs. The record also confirms what Plaintiffs already know, based on Defendants'
voluntary production of Defendants' VCP material, in response to Plaintiffs' Request No.
8, that Defendants communicated to Plaintiffs the substance and results of the six
12

meetings with counsel prior to filing Defendants' VCP March 2012 submission to the

I.R.S. in which the history and events leading to Defendants' actions in rescinding
Plaintiffs' early retirement pensions in an effort to avoid an enforcement audit by the
I.R.S. and potential loss of the Plan's exempt status, were provided. That Defendants'
discussions with counsel as reflected in the November 11, November 16, and
December 11, 2011 meetings were conducted with the expectation that the substance
of these discussions and corresponding advice of counsel would eventually be provided
to the I.R.S. is further demonstrated by the fact that Defendants' counsel, Mark

Stulmaker, who was present at these meetings was the same attorney who filed
Defendants' VCP submission, thereby supporting that the subject matter, if not details,
of Defendants' discussions were not intended to remain confidential but were intended

to be eventually communicated to the I.R.S. through counsel's submission on behalf of

the Trustees. See United States v. Mejia, 655 F.3d 126, 132(2d Cir. 2011)(privilege
requires that communication's "were intended to be, and in fact were, kept confidential")
(citing In re County ofErie, 473 F.3d 413,419(2d Cir. 2007)). "'[T]he privilege attaches
to the substance of a communication and not to the particular words used to express
the communications content.'" Robbins & Myers, Inc., 274 F.R.D. at 84 (quoting United

States V. Tellier, 255 F.2d 442, 447(2d Cir.), cert, denied, 358 U.S. 821 (1958)
(underlining added)). Thus, based on the record there can be little doubt that the

discussions between Defendants and counsel at the meetings the agenda and minutes
of which are subject to Plaintiffs' Requests 11-12, regarding Plaintiffs' pensions
occurred with the expectation that the subject of those conversations was to be
communicated to Plaintiffs and the I.R.S., and Defendants have not met Defendants'

burden, see Robbins & Myers, Inc., 274 F.R.D. at 83(burden to establish each
13

prerequisite for privilege on party who asserts the privilege)(citing United States v.

Schwimmer, 892 F.2d 237, 244(2d Cir. 1989), to show that the meetings with counsel
conducted November 11, 2011, November 16, 2011, December 7, 2011, January 17,
2012, February 10, 2012, and February 21, 2012 were intended to be fully confidential
and remains. As such, the privilege did not attach to the agenda and minutes of these
meetings which should be produced as responsive to Plaintiffs Requests Nos. 11-12.
Because no privilege attached to these records, it is unnecessary to address Plaintiffs'
and Defendants' contentions regarding the applicability of the fiduciary exception as to
these documents.®

Even if the privilege attached to the minutes and agenda of these meetings, it
was waived by the two letters Defendants sent to Plaintiffs and Defendants' VCP

submission to the I.R.S. See Gill v. Bausch & Lomb Supplemental Retirement Plan /,
284 F.R.D. 84, 91 (disclosure of substance of privileged communication waived

privilege)(citing United States v. Jacobs, 117 F.Sd 82, 91 (2d Cir. 1997)(citing In re
Kidder Peabody Sec. Litig. 168 F.R.D. 459, 469)(S.D.N.Y. 1996))); see also Tracy v.
NVR, Inc., 2011 WL 2418632, at *2)(W.D.N.Y. Jun. 14, 2011)(waiver of privilege found
where company disclosed in letter to employees that counsel had advised that the

company's policies "conform to long-standing Department of Labor Guidelines")(citing
cases)).

With respect to Defendants' meeting with counsel conducted July 3, 2012,
Defendants indicate that such sessions addressed Plaintiffs' administrative ("internal")

^ The court notes that Plaintiffs' allegation that Defendants' action amounted to a prohibited amendment
to the Plan, see Dkt. 1 H 32. a non-fiduciary function, see In re Long Island Lighting Company, 129 F.Sd at
271-72(plan amendment is non-fiduciary in nature), is inconsistent with Plaintiffs' assertion that the
fiduciary exception applies to Defendants' determination.
14

appeals of Defendants' demand that Plaintiffs cease employment with Plaintiffs'
employers or elect to continue such employment and thus not to continuo to receive

further pension payments. Dkt. 90-10 at 3. Defendants do not dispute this document
would not be responsive to Plaintiffs' Requests No. 11 and 12. Instead, Defendants

assert, Dkt. 90-10 at 3, the agenda and minutes for this meeting are privileged.
However, as with Defendants' pre-determination meetings in November and December
2011, the record supports that the subject matter of Defendants' rationale for lessening
Plaintiffs' early retirement pensions in order to achieve what Defendants determined to

be a necessary change to comply with I.R.S. requirements was also part and parcel of
Defendants' refusal to grant Plaintiffs' administrative appeals, which occurred on June
27, 2017, which refusal was intended to be communicated to Plaintiffs who appealed.
Indeed, as the substance of Defendants' eventual refusal to grant Plaintiffs' appeals had
been communicated to both Plaintiffs and the I.R.S., unless there was some other

heretofore undisclosed reason for such denials, not explained by Defendants as is

Defendants' burden, it is difficult to understand how Defendants could have any
reasonable basis on which to assert the privilege as regards Defendants' consideration

of Plaintiffs' appeals regardless of any assistance provided by counsel. Thus, contrary
to Defendants' inclusion of this meeting in the Privilege Log, the rationale for the denials
was expected at that time to be communicated to Plaintiffs and the withheld information

could not satisfy the prerequisite degree of continuing confidentiality expected by
Defendants necessary to assert the privilege. See Discussion, supra, at 9-10,
Accordingly, the agenda and minutes of the July 3, 2012 meeting should also be
disclosed. As no privilege attached to these documents, it is similarly unnecessary to
address Plaintiffs' contention based on the fiduciary exception.
15

Likewise, with regard to the November 16 and December 9, 2016, and February
24, 2017 meetings which according to the Privilege Log included discussions with
counsel of the "overpayment of pension benefits to Plaintiffs," Dkt. 90-10 at 4, it is

reasonably clear from the record that the subject matter underlying such alleged
overpayments" arose from Defendants' recent discovery that Defendants were required
to take adverse actions against Plaintiffs with respect to Plaintiffs' pensions in order to
assure the Fund's compliance with applicable provisions of the Internal Revenue Code

and I.R.S. regulations and thereby preserve the VCP status of the Fund. As discussed,
Discussion, supra, at 10-14, the subject matter of the alleged necessity for taking action
to receive the Plaintiffs' pensions originally awarded, thus constituting the referenced
"overpayment," had previously been communicated to Plaintiffs in December 2011 and

January 2012 and the I.R.S. in March 2012. The assertion five years later of the
privileged nature of such discussions cannot establish that Defendants and counsel

could expect they could thereby regain the degree of expected confidentiality required

for the privilege to attach to these meetings once their confidentiality was destroyed by
those earlier communications to third-parties. Accordingly, Plaintiffs' motion as to

Defendants' November 11, 2016, December 9, 2016 and February 24, 2017 meetings
should be GRANTED and Plaintiffs fiduciary exception contention as to these meetings
therefore need not be addressed.

The five remaining meetings at issue - March 20, 2013, February 26, 2014, May
13, 2016, August 26, 2016 and May 12, 2017- according to Defendants, involved
discussions with counsel with respect to "the instant litigation," Dkt. 90-10 at 3, 4, 5,

which Plaintiffs commenced on January 25, 2013. It is basic that seeking and providing
'"assistance in some legal proceeding'" is a common form of legal service well within the
16

scope of the privilege. See S.E.C. v. YorkvHIe Advisors, LLC, 300 F.R.D. 152, 161

(S.D.N.Y. 2014)(quoting Bank Brussels Lambert v. Credit Lyonnais(Suisse) S.A., 160
F.R.D. 437,441 (S.D.N.Y. 1995)). While the Defendants' Privilege Log fails to further

elaborate on the specific issues covered during the meetings on "the instant litigation"
there is no substantial reason to doubt the accuracy of Defendants' general description,
and Plaintiffs do not contend that Defendants' assertions of privilege are inadequate.
See Dkt. 92(passim). Cf. Yorkville Advisors, LLC, 300 F.R.D. at 162 ("'cursory
descriptions' of documents in privilege log insufficient basis on which to assert

privilege")(citing United States v. Constr. Prods. Research, Inc., 73 F.3d 464,473(2d
Cir. 1996)). Further, client communications and related legal advice to ERISA plan

fiduciaries after a challenged determination and in response to actual litigation attacking
such determination fall outside the fiduciary exception as such consultations concern

the liability of a plan fiduciary and not plan administration. See Black v. Pitney Bowes,
2006 WL 3771097, at *3(S.D.N.Y. Dec. 21, 2006)(holding that fiduciary exception did
not apply to communications between a fiduciary and counsel that occurred after the
challenged determination by a fiduciary)(citing Bell v. Pfizer Inc., 2006 WL 2529762, at

*7(S.D.N.Y. Aug. 31, 2006)). Here, moreover, the asserted communications pertain to
pending, not threatened, litigation. Id. at *4. As such, the agendas and minutes of

Defendants' meetings on March 20, 2013, February 26, 2014, May 13, 2016, August 26,
2016, and May 12, 2017 are privileged, not subject to the fiduciary exception, and need
not be produced and, as to these documents. Plaintiffs' motion is DENIED.

Given that the court finds Defendants' privilege log a sufficient basis upon which
to resolve Plaintiffs' motion. Plaintiffs' alternative request, Dkt. 92 at 9, that the court
conduct an in camera inspection of the documents at issue is DENIED. See United
17

States V. Jacobs, 117 F.3d 82, 87(2d Cir. 1997)(courts have discretion to conduct in

camera review of evidence to determine whether asserted privilege applies).

CONCLUSION

Based on the foregoing, Plaintiffs' motion, Dkt. 86, is GRANTED in part, DENIED
in part, and DISMISSED as moot in part.
As the court finds that there is a colorable basis to find Defendants failed to

provide the requested discovery with respect to certain of Plaintiffs' document requests
was without substantial justification. Defendants' shall, pursuant to Fed.R.Civ.P.

37(a)(5)(A), show cause n^ later than 20 days of this Decision and Order why Plaintiffs'
expenses incurred in connection with Plaintiffs' motion should not be awarded; Plaintiffs'

response shall be filed within 10 days thereafter; any reply shall be filed within five days.
Oral argument shall be at the court's discretion.
SO ORDERED.

-ESp

UNITED ST^ES
Dated: June ^ . 2018
Buffalo, New York

18

OSCHIO
ISTRATE JUDGE