Merrill et al v. Briggs & Stratton Corporation et al

Filing 93

DECISION AND ORDER signed by Judge Lynn Adelman on 1/24/14 denying 76 Defendant's Motion to Compel; denying 80 Plaintiffs' Motion to Compel. (cc: all counsel) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL MERRILL, et al.,
Plaintiffs,
v.

Case No. 10-CV-00700

BRIGGS & STRATTON CORPORATION, et al.,
Defendants.

DECISION AND ORDER
Plaintiffs Michael Merrill, Gregory Weber and Jeffrey Carpenter, former employees
of defendant Briggs & Stratton Corporation (“Briggs”), and plaintiffs’ union, brought this
class action under § 301 of the Labor Management Relations Act and § 502(a) of the
Employee Retirement Income Security Act. Before me now are two motions to compel.
First, Briggs moves to compel 50 of the 999 unnamed class members to produce:
All documents received in paper format from Briggs or its third-party plan administrators
from January 1, 1980 to the present that describe any retiree medical plan, retiree medical
benefits, or medically related retiree coverage provided to you, including but not limited to
enrollment forms, communications to you as a plan participant, summary plan descriptions,
insurance policies, insurance contracts, benefit booklets, coverage descriptions,
notifications of plan amendments and explanations of benefits, or any other written
communication concerning retiree medical benefits.1

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The original request for production was much broader, but defendant agreed to
narrow it after plaintiffs objected.

Unnamed/absent class members may be required to submit to discovery under Fed.
R. Civ. P. 33 and 34 if “the requested information is actually needed in preparation for trial”
and “discovery devices are not used to take unfair advantage of ‘absent’ class members.”
Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999, 1006 (7th Cir. 1971). I will deny
Briggs’s motion to compel because it has not demonstrated that it needs the documents
it is seeking to prepare for trial. See Clark v. Universal Builders, Inc., 501 F.2d 324 (7th Cir.
1974) (“The party seeking discovery has the burden of demonstrating its merits.”).
Briggs seeks two types of documents: communications sent by Briggs and
communications sent by third-party companies that Briggs hired to administer its health
plans. The first type of document, communications sent by Briggs itself, might be relevant
to this case because the issue is whether the health benefits Briggs provided to the class
members after retirement were vested under the parties’ collective bargaining agreement
(“CBA”). In my order dated August 24, 2011, I concluded that the CBA was ambiguous on
this point and permitted the parties to take discovery to develop extrinsic evidence bearing
on the issue of the parties’ intent when negotiating the CBA. One potentially important
piece of evidence is the communications between Briggs and its employees concerning
the nature and duration of their health benefits. Briggs should, however, already have
these communications in its possession, and it has in fact produced a large number of
these documents in response to plaintiffs’ discovery requests. Briggs said at the status
conference on November 1, 2013 that it is not certain it has copies of all the
communications it sent and that it wants to double-check its records. This vague concern
that Briggs might be missing some of its own communications with the class members is
not sufficient to justify subjecting unnamed class members to discovery.
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Briggs has also failed to establish a need for copies of the communications sent by
its third-party plan administrators. In its brief, Briggs says it might be missing some of the
communications sent by Healthscope because that company has deleted some of its
documents pursuant to its document retention policy. It also says it might be missing some
documents from Family Health/CompCare because that company is now out of business.
Briggs does not, however, make any effort to explain how communications sent by these
two companies that were never provided to Briggs could be relevant to prove Briggs’s
intent when negotiating the CBA with plaintiffs’ union. Moreover, the fact that Briggs might
be missing documents sent by these two companies is not sufficient to justify the wideranging request for production set out above. For example, Briggs could have limited its
document request to only the time period during which these companies were actually
involved with the administration of its health plans.
The second motion to compel was filed by plaintiffs. They seek to compel
defendants to produce for in camera review 11 documents withheld under the attorneyclient privilege.2 Plaintiffs claim these documents or portions thereof are subject to the
fiduciary-duty exception to the attorney-client privilege.
Under the fiduciary-duty exception, a fiduciary of an ERISA plan ‘must make
available to the beneficiary, upon request, any communications with an attorney that are

2

Defendants withheld 45 documents as privileged but agreed to produce 19 of them
when plaintiffs asked them to review the documents to see if any exceptions to the
attorney-client privilege applied. Plaintiffs now ask defendants to produce 11 of the
remaining 26 documents. These documents are identified as PRIV 0001, a portion of PRIV
0004, PRIV 0013, PRIV 0019, PRIV 0022, PRIV 0032, PRIV 0037, PRIV 0038, PRIV 0040,
PRIV 0042, and PRIV 0043 on Exhibit 1 to the Declaration of Ellen M. Doyle, ECF No. 802.
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intended to assist in the administration of the plan.’” Bland v. Fiatallis North America, Inc.,
401 F.3d 779, 787 (7th Cir. 2005) (quoting In re Long Island Lighting Co., 129 F.3d 268,
272 (2d Cir. 1997)). This exception is premised on the theory that an employer acts as a
fiduciary when it administers a plan and “the attorney-client privilege should not be used
as a shield to prevent disclosure of information relevant to an alleged breach of fiduciary
duty.” Id. However, an employer does not act as a fiduciary when it amends or terminates
a plan. Id. at 787–88; see also King v. Nat’l Human Res. Comm., Inc., 218 F.3d 719, 723
(7th Cir. 2000) (“[T]he defined functions of [the fiduciary of an ERISA plan] do not include
plan design, the amendment of a plan, or the termination of a plan.”). And an employer’s
request for legal advice about whether a retiree health benefits plan is vested is related to
its decision to amend or terminate the plan. Id. 782, 787–88. In Bland, an employer sought
legal advice about whether certain retiree health benefits were vested, and the
beneficiaries of the plan sought access to the communications between the employer and
its counsel under the fiduciary-duty exception. Id. at 781, 787. A magistrate judge
concluded that the communications were not subject to the exception because they were
related to the employer’s decision to amend or terminate the plan, and the Seventh Circuit
upheld that decision. Id. at 782, 787–88. The court held that “an employer acts as a
fiduciary only when it undertakes plan management or administration,” which “consists of
such activities as ‘investment of pension funds and communications to employees about
plan administration.” Id. At 787–88.
According to the descriptions on the privilege log, defendants are withholding the
documents that plaintiffs seek because they contain legal advice related to Briggs’s

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decision to modify, amend or terminate the class members’ health benefits. More
specifically, they contain legal advice about whether Briggs had a right to modify or
terminate the benefits. Based on the holding in Bland, I conclude that these documents are
not subject to the fiduciary-duty exception. See also U.S. v. Mett, 178 F.3d 1058, 1065 (9th
Cir. 1999) (noting that too expansive an interpretation of the fiduciary duty exception will
“swallow the entirety of the attorney-client privilege” and “result in ERISA trustees shying
away from legal advice regarding the performance of their duties,” an outcome which
“ultimately hurts beneficiaries”). Therefore, I will also deny plaintiffs’ motion to compel.
THEREFORE, IT IS ORDERED that defendant Briggs & Stratton Corporation’s
motion to compel limited discovery on the class members (Docket #76) is DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motion to compel production of
documents (Docket #80) is DENIED.
Dated at Milwaukee, Wisconsin, this 24th day of January, 2014.

s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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