A federal district court in Ohio concluded that internal communications between a plan administrator and in-house counsel about a beneficiary’s first-level benefit claim remained protected by the attorney-client privilege, and that ERISA’s fiduciary exception to the attorney client privilege did not apply. In so ruling, the court explained that once the beneficiary’s counsel submitted a “strongly worded, evidence-based letter along with [a doctor’s] opinion letter, [defendant] faced more than a mere possibility of future litigation if it continued to deny benefits,” and thus the relationship was clearly adversarial and litigation was a near-certainty. The court did, however, compel the production of communications between the plan administrator and in-house counsel before and after the initial claim denial, but only up to the point when the beneficiary’s counsel submitted the “strongly worded, evidence-based letter.” The case is Charlie Duncan, Ex’r of the Estate Of Paul W. McVay, et al. v. Minnesota Life Ins. Co., No. 17-cv-25, 2019 WL 3000692 (S.D. Ohio July 10, 2019).
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