The opinion of the court was delivered by: Wood, U.S.D.J.
Plaintiff filed this action against defendants alleging, inter alia, claims for breach of fiduciary duty under Section 502(a)(3) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(3), recovery of benefits under ERISA Section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), and promissory estoppel. Plaintiff moved to compel the production of sixteen documents -- referred to as 1(a), 1(b), 2(a), 2(b), 2(j), 2(k), 2(l), 2(n), 3, 4, 5, 19, 20, 21, 22, and 24 in Defendants' privilege log -- withheld by defendants on the grounds of attorney-client privilege and/or work-product protection. On July 1, 2005, Magistrate Judge Henry Pitman issued a Memorandum Opinion and Order ("Order"), familiarity with which is assumed, granting Plaintiff's motion to compel to the extent of ordering Defendants to produce documents 1(a) and 1(b), but denying it in all other respects. Both parties have objected to parts of the Order.
"Matters concerning discovery generally are considered 'nondispositive' of the litigation." Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). Therefore, the Court reviews those parts of the Order to which the parties have objected to determine if they are "clearly erroneous or contrary to law." See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); see also Abu-Nassar v. Elders Futures, Inc., No. 88 Civ. 7906, 1994 WL 445638, *4, 1994 U.S. Dist. LEXIS 11470, *12-*13 (S.D.N.Y. Aug. 17, 1994). Under this standard, "a reviewing court must ask whether, 'on the entire evidence,' it is 'left with the definite and firm conviction that a mistake has been committed.'" Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
"An objecting party may not raise new arguments that were not made before the Magistrate Judge." Robinson v. Keane, No. 92 Civ. 6090, 1999 WL 459811, *4, 1999 U.S. Dist. LEXIS 9766, *11 (S.D.N.Y. June 29, 1999). See also Rosello v. Barnhart, No. 02 Civ. 4629, 2004 WL 2366177, *3, 2004 U.S. Dist. LEXIS 21076, *8-*9 (S.D.N.Y. Oct. 20, 2004) (stating that plaintiff's objection was untimely because plaintiff did not raise the claim before the magistrate judge).
II. The Order's Findings and Conclusions
The sixteen documents in issue have dates ranging from August 18, 2003 through October 20, 2003; their subject matters are summarily described in defendant Pfizer's privilege log, as either "[s]tock options; retirement eligibility," "[s]tock plans; PRAP*fn1 documents," [s]tock options; PRAP documents," or "[s]tock plans; stock options, PRAP documents." See Order at 3; Pfizer Privilege Log, attached as Exhibit A to Declaration of Robert D. Kraus in Support of Plaintiff's Motion to Compel, dated October 13, 2004 ("Kraus Decl. 2004"), which is itself attached as Exhibit 2 to Declaration of Robert D. Kraus in Support of Plaintiff's Objections to the Discovery Order of Magistrate Judge, dated July 21, 2005 ("Kraus Decl. 2005"). Defendants claimed that all sixteen documents are protected by the attorney-client privilege, and nine are protected, as well, as attorney work products. See Order at 4; Pfizer Privilege Log, Kraus Decl. 2004 Ex. A. According to the Order, "[n]o information [was] provided concerning the circumstances surrounding the preparation of any of the challenged documents." Order at 4.
The Order states that Plaintiff argued that Defendants' claim of privilege should be rejected because: 1) Defendants waived any privilege through their failure to serve an index of withheld documents in a timely manner; 2) Defendants were precluded from asserting the attorney-client privilege because of the fiduciary exception to that privilege; and 3) Defendants did not establish the work-product privilege. Id.
As to the second argument concerning the fiduciary exception to attorney-client privilege -- which is the focus of both parties' objections -- Magistrate Judge Pitman rejected Defendants' argument that the exception is inapplicable because Plaintiff is asserting her claim under Pfizer's Stock and Incentive Plan, which is not governed by ERISA and under which Defendants are therefore not fiduciaries. Magistrate Judge Pitman found that, although it is true that Plaintiff's claim involves the Stock and Incentive Plan, "the core issue in this case is plaintiff's eligibility for retirement under the Pfizer Retirement Annuity Plan," id. at 11, because Plaintiff's rights under the Stock and Incentive Plan are dependent on whether or not she was eligible to retire under the Retirement Annuity Plan, id. at 8-13. Magistrate Judge Pitman therefore concluded that "to the extent that defendants argue that the fiduciary exception does not apply because plaintiff is asserting a claim under a non-ERISA stock option plan, their argument fails." Id. at 13. As to Defendants' argument that the fiduciary exception does not apply to communications relating to litigation, potential liability, or actions to protect the rest of the plan's participants, Magistrate Judge Pitman found that: 1) the record did not establish that the withheld documents related to litigation, because the Pfizer Privilege Log's sparse descriptions of the documents did not indicate this, and "none of defendants' submissions in response to the pending motion supplement[ed] the descriptions in the index," id. at 13-14; and 2) "defendants' arguments [that the fiduciary exception does not apply to communications relating to potential liability or actions to protect the rest of the plan's participants] come close to swallowing the fiduciary exception whole" because, at their most extreme, they "would shield almost all of a plan administrator's communications with an attorney that relate to or result in a denial of benefits," id. at 14-15. At the same time, Magistrate Judge Pitman recognized that "a trustee is obviously entitled to counsel once an adversarial situation has arisen questioning or challenging place decisions that have been made," id. at 15 (internal quotation marks omitted); he found that this interest could be reconciled with a plan beneficiary's competing interest "in disclosure of communications concerning plan administration" by looking either to "the purpose for which legal advice was sought" or "whether the communications occurred before or after the decision to deny benefits," id. at 15-16. Noting the dearth of information provided by defendants as to the nature of the communications at issue, Magistrate Judge Pitman found that "the date of defendants' decision to deny plaintiff retirement status must be deemed to be August 21, 2003, the date of the telephone conversation allegedly memorialized in defendants' letter dated August 22, 2003," and therefore concluded that the withheld documents created before August 21, 2003 -- namely, documents 1(a) and 1(b)*fn2 -- "fall within the fiduciary exception to the attorney-client privilege and must be produced," but that the other documents need not be produced. Id. at 17.*fn3
III. Plaintiff's Objections
Plaintiff objects to the Order's conclusion that none of the challenged documents apart from documents 1(a) and 1(b) must be produced. Plaintiff's objection is based on the argument that "Pfizer failed to meet its burden to show that the attorney client privilege applies." Plaintiff's Memorandum of Law in Support of Objections to Memorandum Opinion and Order of Magistrate Judge Dated July 1, 2005 ("Pl. Objections") 8. This argument was not fully presented to the Magistrate Judge. The Order states that, beyond asserting the fiduciary exception, "Plaintiff does not challenge the sufficiency of defendants' assertion of the attorney-client privilege in any other respect." Order at 8. Indeed, in her Memorandum of Law in Support of Plaintiff's Motion to Compel Pursuant to Fed. R. Civ. P. 37(a) ("Pl. Motion Mem."), Plaintiff argued: "Pfizer Cannot Invoke the Attorney Client Privilege on Matters of Plan Administration Under the Fiduciary Exception." Pl. Motion Mem. Point I. Although Plaintiff stated that "[t]he party seeking to invoke the privilege, in this case Pfizer, must establish the applicability of all elements of the attorney client privilege," and that "Pfizer's showing of these elements requires 'competent evidence and cannot be discharged by mere conclusory or ipse dixit assertions,'" id. at 7 (quoting Von Bulow v. Von Bulow, 811 F.2d 136, 146 (2d Cir. 1987)), Plaintiff then went on to "[a]ssum[e] for purposes of argument that Pfizer can introduce competent evidence to show the existence of each element of the attorney client privilege," id.,*fn4 rather than arguing that Defendants had failed to establish these elements.*fn5 In her reply submission, however, Plaintiff argued that "[b]ecause it has failed to submit any competent proof, Pfizer has plainly not met its burden of proof required to show that the Communications are privileged or that the fiduciary exception does not apply." Plaintiff's Memorandum of Law in Further Support of Plaintiff's Motion to Compel Pursuant to Fed. R. Civ. 37(a) ("Pl. Motion Reply Mem.")
In short, in her submissions to Magistrate Judge Pitman, Plaintiff raised the issue of establishing the elements of the attorney-client privilege, but did not elaborate upon this issue by setting forth arguments as to how Defendants had not met those requirements. Thus, it is understandable that the Order does not address such an argument. Nevertheless, the issue is not an entirely new one raised for the first time before the Court. Therefore, the Court will consider it.
Plaintiff argues that Magistrate Judge Pitman found that Defendants "had not met their burden to show that the Challenged Documents were privileged." Pl. Objections (emphasis omitted). Magistrate Judge Pitman did not make this finding as such: as noted above, the Order does not address the question of whether Defendants have shown that the withheld documents are protected by the attorney-client privilege, because Plaintiff did not fully argue that they do not. But the Order does repeatedly refer to the lack of information provided by Defendants concerning the withheld documents. See Order at 14 n.4 (stating, as to Defendants' argument that the fiduciary exception does not apply to communications regarding litigation, that the party claiming the protection of a privilege bears the burden of establishing it and "the absence of evidence concerning the documents constitutes a failure of the defendants to meet their burden of proof"); id. at 4 ("No information has been provided concerning the circumstances surrounding the preparation of any of the challenged documents"); id. at 16 ("neither defendants' index nor their submissions in response to this motion suggest that the communications were made to defend against plaintiff's claim nor do they delineate when defendants determined that ...