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(District of New Jersey D.C. 01-cv-04183) - page 9 / 30

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28 U.S.C. § 1331 because the plaintiffs’ claims arise under § 502 of ERISA, 29 U.S.C. § 1132. We have appellate jurisdiction under 28 U.S.C. § 1291 to review the District Court’s order of May 12, 2006, ordering the production of certain documents. Though not a final resolution of the case, an order for the production of documents over which a privilege is asserted is appealable as finally resolving a collateral discovery issue. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546

  • (1949)

    ; In re Ford Motor Co., 110 F.3d 954,

  • 1997)

    . Thus, insofar as Health Net contends

Court improperly ordered the discovery documents, its appeal is properly before us.

962-63 (3d Cir. that the District of privileged

HNI has also appealed the District Court’s summary judgment determination regarding HNI’s status as an ERISA fiduciary. Ordinarily, an order denying a motion for summary judgment is not an appealable final order; to the contrary, it is an order permitting litigation to continue. Robinson v. Hartzell Propeller, Inc., 454 F.3d 163, 168 (3d Cir. 2006). Nonetheless, HNI urges us to consider the issue and vacate the order denying summary judgment.

HNI argues that we have jurisdiction to vacate the order because the District Court, in denying HNI’s motion for summary judgment, violated our Stay Order of September 27, 2005. This argument lacks merit. Our Stay Order prevented the District Court from entering judgments affecting the disputed class during the pendency of Health Net’s Rule 23(f) appeal. The question whether HNI was a fiduciary is wholly independent of the question whether the class was properly

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