ORDER GRANTING-IN-PART PLAINTIFFS' MOTION TO COMPEL AND DENYING MOTION FOR SANCTIONS

(Re: Docket Nos. 48, 50)

PAUL S. GREWAL, Magistrate Judge.

Four years ago, Defendant ASIC Advantage, Inc. terminated its Simplified Employee Pension Plan but committed to pay employees like Plaintiffs those SEP benefits accrued through June 30, 2011. After the company's sale to Defendant Microsemi Corporation was completed a few days later, Microsemi had a change of heart—or so says Plaintiffs anyway—and refused to honor ASIC's commitment. Not happy with this turn of events, Plaintiffs filed this suit against ASIC, Microsemi and others, seeking ERISA benefits under the SEP Plan, equitable relief and fines for failure to provide plan and claim-related documents.

Plaintiffs now move to compel production of documents authored or created by Microsemi's attorney Harley Bjelland in relation to the SEP plan. They assert a fiduciary exception to the attorney-client privilege. Plaintiffs also move to compel information relating to other former ASIC SEP plan participants.1 Though Plaintiffs fail to demonstrate that Bjelland acted as a fiduciary in the capacity of a claims administrator, they do show that information regarding other former ASIC SEP plan participants is relevant to this action. The court GRANTS-IN-PART Plaintiffs' motion to compel and DENIES Plaintiffs' motion for sanctions.

I.

The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.2 "In the Ninth Circuit, the privilege is jealously guarded."3 The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise.4 "Once that party establishes the privilege, . . . the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not . . . apply."5

One limit to the attorney-client privilege is the fiduciary exception.6 "[A]n employer acting in the capacity of ERISA fiduciary is disabled from asserting the attorney-client privilege against plan beneficiaries on matters of plan administration."7 For the purposes of ERISA, "a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan."8

Fed. R. Civ. P. 26 provides that a party "may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense."9 "Once the moving party establishes that the information requested is within the scope of permissible discovery, the burden shifts to the party opposing discovery. An opposing party can meet its burden by demonstrating that the information is . . . privileged."10

ASIC was a California corporation with its principal place of business in Sunnyvale. ASIC provided a SEP plan for its employees that gave ASIC the discretion to contribute a certain percentage of each employee's compensation toward the employees' retirement savings.11 ASIC established the SEP plan in October 2008 and contributed to the SEP plan through 2009.12 As allowed by the Internal Revenue Service, ASIC typically paid SEP contributions in October to cover the previous year.13 Consistent with this schedule, in October 2010, ASIC paid SEP contributions that employees had earned in 2009.14

In the wake of a pending acquisition by Microsemi, ASIC's board of directors passed a resolution that terminated the SEP plan as of July 1, 2011.15 Plaintiffs contend that ASIC's President and Chief Executive Officer had previously and repeatedly promised the ASIC employees that their SEP contributions would still be paid for 2010 and the first half of 2011.16 Microsemi acquired ASIC on July 5, 2011 and terminated many employees, including 12 of the 15 Plaintiffs. The remaining three resigned in late 2011.17 Defendants say 13 of the 15 Plaintiffs signed general releases for which they received enhanced severance payments.18

When Plaintiffs noticed their SEP payments had not been made, they contacted a former ASIC board director through counsel who responded that Microsemi should pay Plaintiffs the remaining SEP plan contributions.19 In early 2012, Plaintiffs requested in writing the payment of the SEP contributions, and upon Microsemi's request, provided the names of the individuals seeking the SEP contributions.20 Microsemi then retained Bjelland, who emailed Plaintiffs to inform them that their claims were denied.21 Plaintiffs requested documents referring to their claims,22 and upon receiving limited documents, appealed the denial.23 In a response from Bjelland, Microsemi did not budge from its decision.24 Plaintiffs then filed this suit and served various document requests.25 Plaintiffs now request an order compelling Defendants to produce responsive documents authored or created by Bjelland, and information regarding other former ASIC employees who participated in the SEP plan.26

II.

This court has subject matter jurisdiction and supplemental jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. The parties further consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 72(a).27

III.

To avoid the restrictions of the attorney-client privilege, Plaintiff must show that Bjelland did more than conduct ministerial duties for the plan; Bjelland must be shown to have exercised fiduciary control or authority over the SEP contributions.28 Plaintiffs fall short of meeting this burden for two reasons.

First, Bjelland's July 12, 2012 letter denying Plaintiffs' appeal indicates that the decision to deny the disputed SEP plan contributions was based on an investigation conducted by Microsemi's appointed "Administrative Appeals Committee."29 The committee was made up of two members, John Holtrust and David Goren.30 Bjelland was not part of the committee that had control or authority over the fate of the SEP contributions. In fact, he was not hired until after the plan terminated. These facts all underscore Microsemi's contention that it—not the plan, not the plan sponsor, not the plan trustee—hired Bjelland to provide legal advice about its legal liability to Plaintiffs, and nothing more.31

Second, there is no evidence that Bjelland's functions involved the exercise of discretionary authority or control over the SEP plan. Indeed, the record evidence suggests that his functions beyond rendering legal advice were limited to ministerial-type tasks—such as mailing denial letters to Plaintiffs on behalf of his client.32 "[W]ithout any responsibility or authority over a plan's management and administration, one cannot be a fiduciary."33 "An attorney or other professional service provider who represents an ERISA plan will not qualify as an ERISA fiduciary so long as he `performs purely ministerial functions' . . . within a framework of policies, interpretations, rules, practices and procedures made by other persons."34 Because his role as post-termination advisor alone did not give Bjelland any discretionary control or authority over the SEP plan contribution, Bjelland cannot be said to have acted as an ERISA fiduciary.35

A separate issue is whether Defendants must produce SEP plan information of other former ASIC SEP participants. Defendants primarily object to Plaintiffs' request due to privacy and lack of notice.36 But the clear relevance of the information outweighs Defendants' concerns.

"Federal courts have recognized a person's interest in preserving confidentiality of information contained in his or her personal file."37 "Personnel records, because of the privacy interests involved, should not be ordered produced except upon a compelling showing of relevance."38 The "resolution of a privacy objection or request for a protective order requires a balancing of the need for the information sought against the privacy right asserted."39

Defendants contend the privacy of non-party, former ASIC employees should be preserved, especially because these former employees received no notice pursuant to Cal. Civ. Code §§ 1985.3 and 1985.6.40 But even if state procedural rules were relevant here, Plaintiffs convincingly show that documents from other SEP participants regarding the July 5, 2011 company-wide meeting and similarly filed claims are relevant to Plaintiffs' claims for their SEP contributions in this action.41 Several Plaintiffs testified at deposition that during the company-wide meeting on July 5, 2011, ASIC board members said the SEP plan contributions for 2010 and the first six months of 2011 would be made.42 Whether other plan participants submitted claims and whether those claims were accepted or denied is plainly relevant to Plaintiffs' contentions of what Defendants said and when they said it.43 Denying Plaintiffs the production of these documents would unfairly prejudice Plaintiffs' efforts to establish their claims.44

IV.

Plaintiffs' motion to compel Defendants to produce documents Bjelland authored or created is DENIED.

Plaintiffs' motion to compel the production of other former ASIC SEP participants' SEP plan information is GRANTED. Defendants shall produce documents relevant to a determination of the SEP benefit entitlements of other participants for the disputed period, excluding any privileged documents.

Because Defendants acted reasonably in disputing this production, Plaintiffs' motion for sanctions is DENIED.

SO ORDERED.