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Us Airline Pilots Association v. Pension Benefit Guaranty Corporation

April 19, 2011


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Plaintiff US Airline Pilots Association ("the Association") brings this action against the Pension Benefit Guaranty Corporation ("PBGC"), alleging that PBGC has breached its fiduciary duties as the statutory trustee of a pension plan of which the Association's members are beneficiaries. Before the Court is the Association's motion to compel [#42], which seeks the production of Nicole Hagan, a PBGC attorney, for deposition regarding an investigation she conducted into the pension plan's affairs. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the motion must be granted in part and denied in part.


In 1958, US Airways established a vested, defined-benefit pension plan for its pilots ("the Plan"). Compl. ¶ 7. The Plan operated without substantial changes until March 31, 2003, when it was terminated as a result of US Airways's bankruptcy. See In re US Airways Grp., Inc., 369 F.3d 806, 811 (4th Cir. 2004); In re US Airways Group, Inc., 296 B.R. 734, 748 (Bankr. E.D. Va. 2003). Pursuant to an agreement between PBCG, the pilots' then-union, and US Airways, PBCG then became the Plan's statutory trustee, a role it typically takes on when a pension plan covered by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., terminates without enough assets to pay all of its promised benefits. See Boivin v. US Airways, Inc., 446 F.3d 148, 150--51 (D.C. Cir. 2006). When serving as a statutory trustee, PBGC "wears two hats: one as guarantor of ERISA's insurance program . . . and one as trustee." Wilmington Shipping Co. v. New England Life Ins. Co., 496 F.3d 326, 331 (4th Cir. 2007).

The Association avers that PBGC has breached the fiduciary duties that it owes to the Plan's beneficiaries in its capacity as statutory trustee. Compl. ¶¶ 30--52; see 29 U.S.C. § 1342(d)(3) (stating that a statutory trustee "shall be subject to the same duties as those of a trustee" under the bankruptcy code, as described in11 U.S.C. § 704). Specifically, the Association avers, PBGC has failed to adequately investigate possible malfeasance by the Plan's prior managers that resulted in significant losses in value of the Plan's assets. See Compl. ¶¶ 27, 30--41. After making some effort to appraise PBGC of these issues,Compl. ¶¶ 25--29, the Association filed this suit, seeking to force PBCG to fulfill its duties or to have PBCG supplemented or replaced as trustee of the Plan.


The parties' current dispute centers on a report written by a member of PBCG's Office of General Counsel, Nicole Hagan (whom the Association seeks to depose). Hagan was part of a PBGC team tasked with "investigat[ing] allegations that former fiduciaries of [the Plan] . . . breached their fiduciary duties with respect to the Plan." Hagan Decl. [#6-4] ¶ 3. On July 17, 2009, Hagan received a letter from the Association's counsel raising specific instances of possible misconduct by prior Plan fiduciaries that, the Association argued, warranted further investigation. Hagan Decl. ¶ 7. Accordingly, Hagan commenced an investigation into those allegations. Hagan Decl. ¶ 8. She documented her findings in a November 24, 2010 report, see Pl.'s Mot. to Compel Ex. 4 [#42-6] ("Hagan Report"), which PBGC then disclosed to the Association.

The Association now seeks to depose Hagan regarding the substance and scope of her investigation. PBGC, however, argues that Hagan's investigation is protected by the attorney work-product doctrine. In order to resolve this dispute, the Court must answer two questions: was Hagan's investigation protected by the work-product doctrine? If so, has that protection been waived? The Court will address each question in turn.

A. Hagan's Investigation Was Protected by the Work-Product Privilege

The work-product doctrine, which was first enunciated in Hickman v. Taylor, 329 U.S. 495 (1947), is based on the Supreme Court's recognition that "to prepare for litigation, an attorney must 'assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.'" United States v. Deloitte LLP, 610 F.3d 129, 134 (D.C. Cir. 2010) (quoting Hickman, 329 U.S. at 511). The doctrine, as codified in the Federal Rules of Civil Procedure, protects "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative." FED. R. CIV. P. 26(b)(3)(A). It also protects "intangible work product," such as an attorney's "mental impressions." Deloitte, 610 F.3d at 136.

The threshold question here is thus whether Hagan conducted her investigation "in anticipation of litigation." The Court concludes that she did. As PBGC points out, "where an attorney prepares a document in the course of an active investigation focusing upon specific events and a specific possible violation by a specific party, it has litigation sufficiently 'in mind' for that document to qualify as attorney work product." Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1203 (D.C. Cir. 1991). Here, as described in her report, Hagan investigated specific events (certain transactions and decisions made by the Plan's prior managers) and specific possible violations (of fiduciary duties) by specific parties (the prior fiduciaries). See Hagan Report at 1--2. Thus, Hagan's investigation was undertaken "in anticipation of litigation," and the work-product privilege applies to the materials she generated and to her "mental impressions, conclusions, opinions, or legal theories." Deloitte, 610 F.3d at 135 (quoting FED. R. CIV. P. 26(b)(3)(B)) (internal quotation marks omitted).*fn1

B. PBGC Has Waived the Work-Product Privilege as to Hagan's Investigation

The Association argues that even if Hagan's investigation was initially protected, PBGC's disclosure of the Hagan Report to the Association served to waive work-product protection not only for the Report itself but also for the Report's subject matter, i.e., the investigation. The Association argues that subject-matter waiver is appropriate here because PBGC has made a tactical decision to disclose only favorable protected material. PBGC first responds that the Report's disclosure could not have waived protection for the investigation discussed therein because the Report itself was not protected work product. It then argues that it has made no tactical use of protected material that would justify subject-matter waiver. The Court first addresses whether the Report itself was protected work product.

PBGC asserts that the Hagan report was not protected because it "did not contain privileged information, but rather set forth facts and summarized findings." Def.'s Opp'n to Pl.'s Mot. to Compel ("Def.'s Opp'n") at 6. This position is wholly untenable. The "findings" that the Report "summarized" were legal conclusions that Hagan reached on the basis of an investigation that, as discussed above, was conducted in anticipation of litigation. See Hagan Report at 5--8. As such, they qualify as attorney work product. Safecard Servs., 926 F.2d at 1203. Further, PBGC's assumption that a document prepared for litigation is not privileged because it contains only factual material is simply incorrect. See Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005) ("The circuit's case law is clear that '[t]he work-product doctrine simply does not ...

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