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(District of New Jersey D.C. 01-cv-04183) - page 29 / 30

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their relationships with ERISA plans. Some may choose to cease providing insurance for benefit plans altogether. Others may increase their charges for ERISA-regulated customers to reflect the added risk that they may lose their ability to obtain confidential legal advice. Perhaps others will simply decline to fully inform their attorneys of all relevant facts. None of these outcomes is desirable for ERISA beneficiaries. These concerns, of course, are merely variations of ones that have been rejected by courts regarding the fiduciary exception as applied to trustees, corporate managers, and ERISA plan administrators. They are, however, thumbs on the scale and help to tip the balance.

We remind the parties that, although the fiduciary exception is not applicable here, not every communication between Health Net and its attorneys is necessarily privileged. Other limitations and exceptions to the attorney-client privilege still apply. For instance, the communications must be for legal, not business purposes. Moreover, even when attorney-client communications are privileged, the privilege runs only to the communications themselves, not the underlying information communicated. Upjohn, 449 U.S. at 395. Thus, our holding today forecloses only a means of discovering information; alternate paths of discovery are not closed.

IV. Conclusion

The District Court erred in applying the fiduciary exception to the Health Net defendants and consequently erred in ordering the production of privileged documents. We will therefore vacate the District Court’s order of May 12, 2006,

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