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BELL v. PFIZER

July 1, 2005.

DIANA BELL, Plaintiff,
v.
PFIZER, INC., et al., Defendants.



The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. Introduction

Plaintiff moves to compel the production of sixteen documents withheld by defendants on the ground of the attorney-client privilege and/or work-product protection.*fn1 For the reasons set forth below, plaintiff's motion is granted in part and denied in part.

  II. Facts

  A. Facts Underlying Plaintiff's Claims

  Plaintiff alleges that defendants breached their fiduciary duties to her in violation of the provisions of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 290 et seq. Specifically, plaintiff, a former employee of Pfizer, Inc. ("Pfizer") with twenty-two years of service at the time of her separation from Pfizer, alleges that in early May, 2003, a Pfizer Retirement Counselor sent plaintiff a letter advising her that she was eligible to retire. The counselor subsequently sent plaintiff a stock option summary sheet indicating that plaintiff's stock options would survive her separation from Pfizer because plaintiff was retirement eligible. Allegedly in reliance on these representations, plaintiff separated from Pfizer effective May 31, 2003, in the belief that she was retiring and that her accrued stock options would remain in effect.

  In mid-August 2003, plaintiff received another letter from Pfizer, advising that many of plaintiff's stock options had been canceled and that the balance had to be exercised by September 1, 2003 or they would be forfeited. Plaintiff called Pfizer on August 18, 2003, and Pfizer advised plaintiff that it would look into her complaints. On August 22, 2003 Pfizer wrote to plaintiff, purportedly confirming a telephone conversation of August 21, 2003 and stating that "while [plaintiff] did receive a statement indicating the treatment of stock options at Pfizer if [plaintiff] were retirement eligible, further investigation provided that [plaintiff] did not separate as a retirement but as a termination" (Declaration of Robert D. Kraus, Esq., dated October 13, 2004 ("Kraus Decl."), Ex. E). Pfizer subsequently refused to reinstate plaintiff's options and this action followed.

  B. The Discovery Requests in Issue

  The present dispute arises out of a document request served by plaintiff on or about February 12, 2004. Defendants served their responses on or about March 22, 2004. Although defendants' March 22 response contained blanket assertions of privilege, defendants did not provide an index of documents withheld on the ground of privilege at that time. Defendants' counsel candidly admitted at oral argument that there was no express agreement extending defendants' time to serve such an index. Defendants' finally provided the index of withheld documents on June 8, 2004.

  C. The Documents in Issue

  The sixteen documents in issue bear dates from August 18, 2003 through October 20, 2003. The descriptions of the subject matters are extremely brief and are limited to three variants: "[s]tock options; retirement eligibility," "[s]tock plans; PRAP documents," "[s]tock plans; stock options; PRAP documents." All sixteen are claimed to be protected by the attorney-client privilege. Nine of the documents are also claimed to be protected as work product.*fn2 No information has been provided concerning the circumstances surrounding the preparation of any of the challenged documents.

  Plaintiff argues that defendants' claim of privilege should be rejected for three reasons: (1) defendants' failure to serve an index of withheld documents in a timely manner operates as a waiver of any privilege that might otherwise exist; (2) the fiduciary exception to the attorney-client precludes defendants from asserting the privilege against plaintiff, and (3) defendants have not established the elements of work-product protection.

  III. ...


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