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(District of New Jersey D.C. 01-cv-04183) - page 5 / 30

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OPINION

ROTH: Circuit Judge:

This appeal requires us to consider the application of a common-law evidentiary rule known as the “fiduciary exception” to the attorney-client privilege. Under this exception to the privilege, certain fiduciaries who obtain legal advice in the execution of their fiduciary obligations are precluded from asserting the attorney-client privilege against their beneficiaries. Although the fiduciary exception has been adopted by a number of other federal courts of appeals, we have not yet had the opportunity to decide whether the rule should apply within our circuit. We decline to make that decision today because we hold that, even if we were to adopt the fiduciary exception, the exception would not apply to the defendants in this case. For this reason, we will vacate the order of the District Court requiring the production of otherwise privileged attorney-client communications.

I. Factual and Procedural Background

Health Net of New Jersey, Inc. (HN-NJ) sells and maintains health insurance policies for employee benefit plans. The company offers a variety of policies, covering services by

health

maintenance

organizations,

preferred

provider

organizations, and point-of-service policies.

HN-NJ is a

5

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