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(District of New Jersey D.C. 01-cv-04183) - page 7 / 30

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The plaintiffs allege that HN-NJ relied on antiquated data and improper methods to define UCR charges, thereby violating both New Jersey law and the Health Net companies’ duties as statutory fiduciaries under ERISA. The plaintiffs filed suit under § 502 of ERISA to recover benefits and to redress the alleged violations of fiduciary duties and failure to supply information to beneficiaries.

On August 5, 2004, the District Court for the District of New Jersey consolidated the plaintiffs’ cases and granted class certification to a national class of beneficiaries. HNI, HN-NE, and HN-NJ (collectively, Health Net) appealed the certification. On September 27, 2005, we issued a Stay Order, requiring that the District Court “refrain from holding any trial, or entering any judgment that would have the effect of resolving any claims or issues affecting the disputed class until this Court has issued its ruling deciding the pending appeal under Rule 23(f) . . ..” On June 30, 2006, we vacated the Class Certification Order and remanded for further certification proceedings.

During the pendency of the Rule 23(f) appeal, the District Court moved forward on issues of discovery. On June 24, 2005, the District Court assigned a Special Master to examine documents listed on defendants’ privilege logs to determine whether the documents were discoverable. The Special Master reviewed over 4,000 documents in Health Net’s first eleven privilege logs. After determining which documents were protected as work-product or privileged as attorney-client communications, the Special Master considered whether any of

those documents were nonetheless discoverable pursuant fiduciary exception to the attorney-client privilege.

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