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(District of New Jersey D.C. 01-cv-04183) - page 13 / 30

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Health Net companies, except to note that HN-NJ is not a plan administrator or trustee and that its fiduciary status arises out of its discretionary authority over the payment of benefits owed to plan beneficiaries.

Health Net contends that recognized at common law does not

the fiduciary exception apply to every entity which

is designated a fiduciary under ERISA. Instead, it argues that a

fiduciary contracts

such as HN-NJ – an insurance with multiple employee benefit plans

company to provide

which health

insurance

to

employee-beneficiaries, processes

and

pays

claims

using

its

own

assets,

obtains

legal

advice

using

its

own

funds,

and

operates

with

an

eye

toward

profits

falls

outside

the

scope

of the fiduciary exception. To our considered whether the fiduciary

knowledge, no court has exception to the federal

attorney client privilege fiduciaries under ERISA. confront.

applies with equal force to all It is that question which we now

A. History and Development of the Fiduciary Exception

We will begin our consideration with an historical review of the attorney-client privilege and the development of the fiduciary exception. In sixteenth-century England, the right to testimonial compulsion was still in its infancy. Along with the emergence of this right to compel testimony there also arose an

exception EVIDENCE

§

the attorney-client 2290 (McNaughton

privilege. rev. 1961).

8 J. WIGMORE, Jurists originally

justified the privilege as necessary to protect “point of honor” to refrain from divulging the

an attorney’s secrets of his

13

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