Tuesday, June 5, 2007

Fiduciary Exception To Work Product Doctrine

Judge Gladys Kessler of the United States District Court for the District of Columbia held that a magistrate had committed clear error in concluding that the fiduciary exception to the attorney work product doctrine must be considered only in circumstances where the work product is given to the fiduciary.  The underlying suit involves claims brought by plan beneficiaries of the Federal Employees' Thrift Savings Plan  ("Plan")  against board members of the Federal Retirement Thrift Investment Board, which administers the Plan. Plaintiffs allege that the Board defendants "breached their fiduciary duties under [federal law]  while selecting a new Executive Director and initiating the settlement of a lawsuit brought by the Plan."

The court held that "the fiduciary is not the real client; the intention of the representation is to aid the beneficiaries for whom the fiduciary acts." As the plaintiffs are Plan beneficiaries who have claimed a breach of fiduciary duty, "the beneficiaries are entitled to the work product of their former counsel" even if the documents at issue had not yet been provided to the fiduciary. Thus, the magistrate erred in holding that the defendants could invoke the work product doctrine over such documents to prevent discovery by the plaintiffs. (Mike Frisch)


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