Don’t Waive Privilege: Exclude Unnecessary Service Providers From Meetings

A recent opinion from a federal district court in Massachusetts provides plan sponsors and fiduciaries with a reminder that plan service providers should be excused from meetings where their attendance is not needed to assist in the provision of legal advice. If they are not, whatever attorney-client privilege that may have protected the confidentiality of the discussion or documents may be waived. In Hill v. State Street Corp., 2013 U.S. Dist. LEXIS 181168 (D. Mass. Dec. 30, 2013), the district court granted in part plaintiff’s motion to compel plan committee meeting minutes that defendant sought to shield from discovery because there was no evidence that the presence of a third-party consultant retained by the plan to provide specialized investment and governance consulting services was necessary to assist counsel in providing legal advice to the plan.