Does an ERISA Remand Revive the “Fiduciary Exception”? Federal Court Orders Disability Insurer to Log Attorney Communications About a Remanded Claim

In Collier v. Lincoln Life Assurance Company of Boston, No. 8:20-cv-00839-JVS-KESx, 2026 WL 3126569 (C.D. Cal. Oct. 5, 2026), a federal magistrate judge confronted a question that arises whenever an ERISA long-term disability claim is sent back to the insurer for a second look: once a lawsuit is already underway, must the insurer disclose the communications between its claims staff and its attorneys about how to decide the remanded claim? The court held that the “fiduciary exception” to the attorney-client privilege revives on remand, and it ordered the insurer to serve an amended privilege log identifying those communications for the court’s review.

What was the dispute about?

Plaintiff’s claim for ERISA-governed long-term disability benefits was denied, and the district court initially affirmed the denial. The Ninth Circuit reversed and remanded, holding that the district court could not rely on rationales the claimant never had a chance to address during the administrative process, namely findings that she was not credible and had failed to supply objective medical evidence. After mediation failed, the district court remanded the claim to the insurer in August 2023. Plaintiff submitted additional evidence in June 2024, and the insurer again denied the claim in January 2025. When merits briefing resumed, a discovery fight developed over whether Plaintiff could obtain communications between the insurer and its in-house and outside counsel during the remand period. The insurer produced a nineteen-item privilege log, asserting the attorney-client privilege for every entry and the work product doctrine for thirteen.

Does the “fiduciary exception” apply after an ERISA claim is remanded mid-litigation?

Under the fiduciary exception recognized in United States v. Mett, an ERISA administrator acting as a fiduciary generally cannot assert the attorney-client privilege against the beneficiary as to legal advice about plan administration; the privilege returns only where the fiduciary seeks advice to protect against personal civil or criminal liability. The insurer argued that once the parties’ interests diverged, which happens at the latest when litigation begins, the exception ended for good and could not come back. The court rejected that bright-line rule. It held that if the administrator must once again act as a fiduciary on remand, the exception revives as to attorneys giving advice about plan administration. A contrary rule, the court reasoned, would let an administrator behave as a litigation adversary while supposedly giving the claimant the full and fair review that remand exists to provide. The court noted that earlier Ninth Circuit authority, including Stephan v. Unum Life Insurance Company of America, had marked when the parties’ interests diverge but had not addressed whether the exception revives upon remand.

The court also drew a practical line. Communications in which litigation counsel advised the insurer on how to evaluate the claim on remand likely fall within the exception, while communications about the litigation itself, such as the privilege dispute or the preparation of a declaration, do not.

Does the insurer’s exposure to attorney’s fees defeat the exception?

No. The insurer tried to bring the case within Mett by pointing to its potential liability for attorney’s fees. The court was not persuaded. No individual at the insurer faced personal civil or criminal liability, and because potential fee exposure exists whenever a claim is wrongly denied, treating that exposure as enough to defeat the exception would effectively nullify it.

Can the insurer still withhold documents as work product even when the fiduciary exception applies?

Yes. The court explained that the attorney-client privilege and the work product doctrine protect different interests, so a document reachable despite the fiduciary exception may still be shielded as work product. Following Romanchuk v. Board of Trustees, the court recognized that documents generated during a remand that only came about after years of litigation can serve a dual purpose, and that work product protection, along with proportionality and relevance, may still weigh against disclosure.

What must the insurer’s amended privilege log include, and what can it leave out?

The court ordered a more detailed log that identifies the document type, the role of each sender and recipient, the author where different from the sender, whether emails carry attachments, and a numbered column so the parties can refer to entries by line. On scope, the court read a subject-matter limitation into ERISA’s definition of relevant documents under 29 C.F.R. § 2560.503(m)(8). Communications that counsel sent to the insurer about the denial or the process of deciding the claim must be logged, including advice about the impact of a denial on the litigation, how to decide the claim, and the wording of the denial decision. Purely litigation-related material with no bearing on the benefit decision, such as legal bills, bare transmittal emails, client-relationship social messages, and drafts of court filings, may be excluded, as may communications internal to litigation counsel that no one at the insurer ever saw.

Does the timing of a document control whether it must be disclosed?

No. The insurer argued it could categorically withhold everything created between the remand order and the claimant’s first remand submission, because it had not yet begun making the benefit determination. The court disagreed, holding that relevance under (m)(8) does not turn solely on timing. A memo advising the insurer how and why to deny the anticipated claim would be relevant even if written before the claimant’s submission arrived. The insurer could, however, categorically exclude documents dated on or before the day before the remand order, when the parties stood as pure litigation adversaries and no remand had been ordered.

Did the court give the claimant everything she requested?

No. The court declined to order the insurer to prepare a separate “relevance log” cataloguing documents it had unilaterally deemed irrelevant, observing that courts routinely rely on counsel to separate relevant from irrelevant material. It also declined, for now, to compel the deposition of the insurer’s claim resolution specialist, explaining that parties in ERISA cases generally do not depose the claims handler and that Plaintiff would need to file a motion before the district judge showing why such discovery is justified and proportionate. The court set an October 30, 2026 deadline for the amended log, stayed if either side appeals the order, and directed the insurer to deliver the withheld documents for in camera review by November 16, 2026.