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(District of New Jersey D.C. 01-cv-04183) - page 10 / 30

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certified.1

HNI also contends that we must review HNI’s fiduciary status

as part before

of our resolution of the

us.

However,

because

discovery question we hold that the

properly disputed

documents are may have been

privileged no matter how in the daily operations of

heavily involved HNI its subsidiaries, we do

not need to consider HNI’s fiduciary status. therefore, that we do not have jurisdiction at this appeal of the denial of summary judgment.

We time

conclude, to hear the

We exercise de novo review over issues of law underlying the application of the attorney-client privilege. U.S. v. Doe, 429 F.3d 450, 452 (3d Cir. 2005). We review the application of that law for abuse of discretion. Id.

III. Discussion

We confront an issue of first impression. Although the fiduciary exception has been recognized in many of our sister circuits, see Becher v. Long Island Lighting Co. (LILCO), 129 F.3d 268, 272 (2d Cir. 1997); Wildbur v. ARCO Chemical Co., 974 F.2d 631, 645 (5th Cir. 1992); Fausek v. White, 965 F.2d 126, 132-33 (6th Cir. 1992); Bland v. Fiatallis North Am. Inc.,

1Moreover, HNI is the party which moved for summary judgment during the pendency of the Rule 23(f) appeal. We are not sympathetic to HNI’s new position that the District Court lacked authority to consider the motion which HNI had filed.

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