United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Advanced Physicians, S.C.'s
(“Advanced”) Motion to Compel (ECF No. 110),
seeking to compel the production of documents that Defendants
Connecticut General Life Insurance Company, Cigna Health and
Life Insurance Company, Cigna Healthcare Management, Inc.,
Great-West Healthcare-Cigna (collectively,
“Cigna”), and NFL Player Insurance Plan,
(together with Cigna, “Defendants”) claim are
protected by the attorney-client privilege. For the reasons
discussed below, the Court DENIES Advanced's Motion.
Advanced is a healthcare provider that provided chiropractic
and medical diagnostic services to certain beneficiaries of
the NFL Player Insurance Plan (the “Plan”). Mot.
1; Fourth Am. Compl. 3 (ECF No. 81). Cigna makes
determinations on claims filed under the Plan. JSR 11 (ECF
No. 116). Beginning in 2015, Cigna denied the claims of
beneficiaries who received services from Advanced because
Cigna determined the underlying injuries were
“work-related” and treatment for work-related
injuries is not compensable under the Plan. Fourth Am. Compl.
6-7. Those Plan beneficiaries assigned “their rights as
participants or beneficiaries in the Plan and their causes of
action against the Plan to Advanced.” Id. 13;
Defs.' Ex. A (ECF No. 127-1). Advanced then sued Cigna
for violations of the Employee Retirement Income Security Act
of 1974 (“ERISA”) under 29 U.S.C. § 1132 to
recover benefits it claimed the beneficiaries were entitled
to under the Plan. Mot. 1; Fourth Am. Compl. 2, 12-13. As
part of this lawsuit, on August 8, 2018, Advanced served
written discovery, requests for production and
interrogatories, on Cigna, which objected on privilege
grounds, among others. Mot. 1-2; JSR 5.
result, Plaintiff filed its Motion to Compel. In lieu of
response and reply briefs, the parties submitted a Joint
Status Report per the Court's January 29, 2019 Order.
JSR; Order (ECF No. 111). At the March 19, 2019 hearing on
the Motion, the Court and the parties further narrowed the
issues in dispute such that the only remaining issue
concerned whether Advanced could assert the fiduciary
exception to the attorney-client privilege to gain access to
Cigna's privileged documents. Accordingly, the Court
ordered the parties to submit supplemental briefs on that
issue and required Cigna to submit 25 representative
documents from its privilege log for in camera review. Order
(ECF No. 129). The parties timely filed their supplemental
briefs, Pl.'s Supp. Br. (ECF No. 128); Defs.' Supp.
Br. (ECF No. 127), and Cigna submitted its in camera
documents. The Motion is ripe for determination.
Federal Rule of Civil Procedure 26(b)(1) provides,
“[u]nless otherwise limited by court order, . . .
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.”
Fed.R.Civ.P. 26(b)(1). Under Rule 34, “[a] party may
serve on any other party a request within the scope of Rule
26(b): (1) to produce and permit the requesting party or its
representative to inspect, copy, test, or sample the
following items in the responding party's possession,
custody, or control: (A) any designated documents or
electronically stored information-including writings,
drawings, graphs, charts, photographs, sound recordings,
images, and other data or data compilations-stored in any
medium from which information can be obtained either directly
or, if necessary, after translation by the responding party
into a reasonably usable form.” Fed.R.Civ.P.
34(a)(1)(A). When a party fails to produce documents
requested under Rule 34, Rule 37 permits, “a party
seeking discovery . . . [to] move for an order compelling
production against another party.” Zenith Ins. Co.
v. Tex. Inst. for Surgery, L.L.P., 328 F.R.D. 153, 160
(N.D. Tex. 2018) (citing Fed.R.Civ.P. 37(a)(3)(B)(iv);
Crosswhite v. Lexington Ins. Co., 321 Fed.Appx. 365,
368 (5th Cir. 2009)). Rule 26(b)(1), however, applies to
nonprivileged matter, and a party withholding discovery on
privilege grounds, “‘must: (i) expressly make the
claim; and (ii) describe the nature of the documents,
communications, or tangible things not produced or
disclosed-and do so in a manner that, without revealing
information itself privileged or protected, will enable other
parties to assess the claim.'” Id. at 161
(quoting Fed.R.Civ.P. 26(b)(5)(A)). Rule 37 dictates
“an evasive or incomplete disclosure, answer, or
response must be treated as a failure to disclose, answer, or
respond.” Fed.R.Civ.P. 37(a)(4).
Federal Rules of Evidence provide that evidentiary privileges
‘shall be governed by the principles of the common law
. . . in the light of reason and experience.'”
United States v. Jicarilla Apache Nation, 564 U.S.
162, 169 (2011) (ellipses in original) (quoting Fed.R.Evid.
501). The attorney-client privilege “is the oldest of
the privileges for confidential communications known to the
common law.” Upjohn Co. v. United States, 449
U.S. 383, 389 (1981) (citation omitted). It serves to promote
the observance of law and administration of justice by
“encourag[ing] full and frank communication between
attorneys and their clients.” Id.
attorney-client privilege to apply to a communication,
“the proponent ‘must prove: (1) that he made a
confidential communication; (2) to a lawyer or his
subordinate; (3) for the primary purpose of securing either a
legal opinion or legal services, or assistance in some legal
proceeding.'” E.E.O.C. v. BDO USA, L.L.P.,
876 F.3d 690, 695 (5th Cir. 2017) (emphasis in original)
(quoting United States v. Robinson, 121 F.3d 971,
974 (5th Cir. 1997)). Whether the privilege applies is a
“‘highly fact-specific' inquiry, and the
party asserting the privilege bears the burden of
proof.” Id. (citing Stoffels v. SBC
Commc'ns, Inc., 263 F.R.D. 406, 411 (W.D. Tex.
2009)). To carry that burden, the party “must provide
sufficient facts by way of detailed affidavits or other
evidence to enable the court to determine whether the
privilege exists”; only afterward is in camera review
appropriate. Navigant Consulting, Inc. v. Wilkinson,
220 F.R.D. 467, 473 (N.D. Tex. 2004) (citation omitted)
(conducting a privilege analysis under Tex. R. Evid. 503(b),
which sets forth essentially the same elements as those
articulated by the Fifth Circuit in E.E.O.C., 876
F.3d at 695). Once the party asserting the privilege has
proven that it applies, the burden shifts to the other party
to prove “any applicable exceptions.”
E.E.O.C., 876 F.3d at 695 (internal quotation marks
omitted) (quoting Perkins v. Gregg Cty., 891 F.Supp.
361, 363 (E.D. Tex. 1995)). Because privileges shield
relevant information from discovery, the attorney-client
privilege is to be construed narrowly, and
“[a]mbiguities as to whether the elements of a
privilege claim have been met are construed against the
proponent.” Id. (citation omitted); see
also Robinson, 121 F.3d at 974 (citations omitted).
“[t]he attorney-client privilege ranks among the oldest
and most established evidentiary privileges, ” an
exception exists “when a trustee obtains legal advice
related to the exercise of fiduciary duties” such that
“the trustee cannot withhold attorney-client
communications from the beneficiary of the trust.”
Jicarilla Apache Nation, 564 U.S. at 165. This is
because “the trustee has no independent interest in
trust administration” and “is subject to a
general common-law duty of disclosure.” Id. at
166. The Fifth Circuit has recognized this “fiduciary
exception” in the ERISA context. See Wildbur v.
ARCO Chem. Co., 974 F.2d 631, 645 (5th Cir.
1992)modified, 979 F.2d 1013 (5th Cir. 1992) (per
curiam). An ERISA plan administrator owes fiduciary duties to
the plan's beneficiaries. Id. (citing 29 U.S.C.
§§ 1002(21); 1103(a), (c)(1); 1104(a)(1)). Thus,
“[w]hen an attorney advises a plan administrator or
other fiduciary concerning plan administration, the
attorney's clients are the plan beneficiaries for whom
the fiduciary acts, not the plan administrator.”
Id. (citing Wash.-Balt. Newspaper Guild, Local
35 v. Wash. Star Co., 543 F.Supp. 906, 909 (D.D.C.
1982)). As a result, “an ERISA fiduciary cannot assert
the attorney-client privilege against a plan beneficiary
about legal advice dealing with plan administration.”
Id. (citing Wash.-Balt. Newspaper Guild,
543 F.Supp. at 909).
contends that all the documents listed on Cigna's
privilege log, dated prior to the filing of this lawsuit,
should be produced because the documents relate to
Cigna's acts of Plan administration and the fiduciary
exception to the attorney-client privilege applies.
Specifically, Advanced contends Cigna denied its
reimbursement claims based on a benefits review conducted by
Cigna's legal department that involved Plan
interpretation, which is a fiduciary determination conducted
as a function of Plan administration. Advanced further
contends that it is entitled to invoke the fiduciary
exception because it is an assignee of the beneficiaries'
rights to make claims for medical services under the Plan
and, as such, it “takes all of the rights of the
assignor for the thing assigned.” Pl.'s Supp. Br.
6. Cigna disputes that Advanced is a beneficiary of the Plan
entitled to invoke the fiduciary exception to the
attorney-client privilege. Cigna further asserts that
Advanced is not entitled to invoke the exception as the
beneficiaries' assignee because “the rights the
provider obtains are limited to those expressly set forth in
the assignment.” Defs.' Supp. Br. 7.
without deciding, for the purposes of Advanced's Motion
to Compel that the documents on Cigna's privilege log
constitute confidential communications concerning Plan
administration, the Court concludes that Advanced is not
entitled to assert the fiduciary exception to the
attorney-client privilege on behalf of the beneficiaries
because under Advanced's “Assignment ...