Severance Plan Plaintiff Gets E-Mail, Document Access

May 24, 2005 ( - A plaintiff covered by an Employee Retirement Income Security Act (ERISA)-governed severance plan can get access to plan e-mails and documents in an ERISA lawsuit, a judge has ruled.

>US District Judge Douglas Eaton of the US District Court for the Southern District of New York ruled that plaintiff Thomas Anderson should get the material from his former employer because communications carried out while running an ERISA plan aren’t protected by attorney-client privilege, BNA reported.

>Ruling against defendant Sotheby’s Inc. Severance Plan, Eaton decided that the attorney-client privilege exception covers communications between a plan administrator and a lawyer over fiduciary matters such as plan management and administration.

>Eaton said that e-mails sought by Anderson as part of a pre-trial discovery discussed indemnification issues and numbers. As far as the plan work documents were concerned, Eaton explained that if documents like these were always protected, no beneficiary would ever obtain discovery of an administrator’s records since an administrator could almost always claim the documents were created in anticipation of litigation.

>Sotheby’s and the plan claimed attorney-client privilege for e-mails concerning indemnification and valuation of the plan.

>Anderson worked for Sotheby’s International Realty Inc. from 1981 to 2004, and participated in its severance plan. Sotheby’s was sold to NRT Inc., a subsidiary of Cendant Corp. After a month as an employee of Cedant, Anderson submitted a claim for benefits under the plan saying that he expected to terminate his employment with Cendant because Cendant did not offer him a “comparable position.” Anderson’s claim was rejected and he sued Sotheby’s, the plan, and the plan administrator for wrongfully withheld severance benefits.

>The case is Anderson v. Sotheby’s Inc. Severance Plan, S.D.N.Y., No. 04 Civ 8180 (SAS) (DFE), 5/13/05.