The opinion of the court was delivered by: Gladys Kessler United States District Judge
The Federal Employees' Thrift Savings Plan ("Plan") was created by the Federal Employees' Retirement System Act ("FERSA"), 5 U.S.C. §§ 8401, et seq., and is administered by the Federal Retirement Thrift Investment Board ("Board"). The claims in this case arise from the activities of the Board and its employees. The class consists of participants and beneficiaries of the Plan. Francis Cavanaugh*fn1 is the named Plaintiff and class representative. Defendants are (1) Andrew Saul, Thomas Fink, Alejandro Sanchez and Gordon Whiting (members of the Board, collectively referred to herein as "Board Member Defendants"); (2) Elizabeth Woodruff (the Board's General Counsel); and (3) Gary Amelio (the Board's current Executive Director).
This matter is now before the Court on Plaintiffs' Motion for Reconsideration [Dkt. No. 82] of Magistrate Judge Robinson's denial of Plaintiffs' Motion to Compel Production. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Plaintiffs' Motion for Reconsideration is hereby granted.
I. FACTS AND PROCEDURAL HISTORY*fn2
Plaintiffs in this case allege that the Board Member
Defendants breached their fiduciary duties under FERSA while selecting a new Executive Director and initiating the settlement of a lawsuit brought by the Plan; that Elizabeth Woodruff aided and abetted the Board Member Defendants in their alleged fiduciary breaches; and that Gary Amelio breached his fiduciary duties under FERSA by settling the lawsuit initiated by the Plan. Specifically, Plaintiffs allege that Defendants breached their fiduciary duties by, inter alia, settling a lawsuit brought by the Plan against American Management Systems, Inc. ("AMS litigation"). Defendants retained counsel in connection with that settlement.
During the course of discovery, Defendants invoked evidentiary privileges over certain documents they withheld from production.
Among these are ten documents that were prepared by counsel for Defendants in connection with the settlement of the AMS litigation. The documents were not provided to the Board Member Defendants. Defendants withheld the ten documents from production on the ground that they are protected by the attorney work product doctrine.*fn3
Plaintiffs filed a Motion to Compel Document Production [Dkt. No. 53] with the magistrate judge, which sought production of those ten documents. After that Motion was fully briefed, the magistrate judge held oral argument and denied the Motion. She concluded that there is no need for the Court, at least at this time, to make any determination with respect to whether there is a fiduciary exception to the work product privilege and, if so, whether that exception applies here. Since the evidence before me is that the fiduciaries did not receive the documents or, in the words of Defendant's [sic] counsel, the documents, quote, 'never made it to the fiduciaries,' closed quote. That being the case, the Court finds that the work product privilege was properly invoked and the Court will therefore deny the motion to compel document production. . . .
Transcript of Oral Argument, Pls.' Mot. Ex. C., at 28-29.
Plaintiffs have filed a Motion for Reconsideration of Magistrate Judge's Denial of Motion to Compel [Dkt. No. 82] pursuant to Fed. R. Civ. P. 72(a) and LcvR 72.2(b), which is now before the Court.
Fed. R. Civ. P. 72(a) and LCvR 72.2(b) allow a party to seek reconsideration of a magistrate judge's decision in a discovery dispute. "On review, the magistrate judge's decision is entitled to great deference unless it is clearly erroneous or contrary to law, that is, if on the entire evidence the court is left with the definite and firm conviction that a mistake has been committed." Barnett v. Pa Consulting Group, Inc., No. 04-1245, 2007 U.S. Dist. LEXIS 18945, at *5 (D.D.C March 19, 2007) (internal quotations omitted); see also LCvR 72.2(c) ("Upon a motion for ...