Krebsbach v. The Travelers Pension Plan and The Travelers Companies

Background

Plaintiff Judith M. Krebsbach is an employee of The Travelers Companies, Inc. ("Travelers") and a participant in The Travelers Pension Plan (the "Plan"), a qualified defined benefit plan under § 401(a) of the Internal Revenue Code. She sued Travelers and the Plan under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., alleging that defendants miscalculated her pension benefits and breached their fiduciary duty to her.

Krebsbach first pursued relief through an internal claims process, which was denied. She appealed internally; that appeal was also denied. The law firm Faegre Drinker Biddle & Reath LLP ("Faegre") advised the Plan on its legal obligations during Krebsbach's internal claim and appeal process.

The Subpoena and Faegre's Objection

On March 31, 2026, Krebsbach served a subpoena duces tecum (a court order requiring a non-party to produce documents) on Faegre, requesting Faegre's entire file for services provided regarding her pension claim and appeal during the ERISA administrative process, excluding documents already produced in the litigation. Faegre timely objected, arguing that:

Faegre did not produce documents or a privilege log by the deadline.

Proceedings Before the Magistrate Judge

On May 1, 2026, Krebsbach filed a motion for an order to show cause why Faegre should not be held in contempt for failing to produce documents or a privilege log. She argued that Faegre violated Federal Rule of Civil Procedure 45 by not serving a privilege log, and that Faegre's work was subject to ERISA's fiduciary exception to attorney-client privilege.

Magistrate Judge Shannon G. Elkins granted Krebsbach's motion and ordered Faegre to produce documents sought in the subpoena relevant to Krebsbach's claim denial and appeal only, reasoning that because Faegre advised defendants on plan administration, Faegre's internal documents would be relevant.

Faegre objected to the magistrate judge's order before District Judge Frank.

Legal Standard for Review

Because the magistrate judge's ruling was a non-dispositive discovery order, District Judge Frank reviewed it under the deferential "clearly erroneous or contrary to law" standard. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). A finding is clearly erroneous only when the reviewing court has a definite and firm conviction that a mistake was made. A ruling is contrary to law when it fails to apply or misapplies pertinent statutes, case law, or rules of procedure.

Analysis

ERISA's Fiduciary Exception

The central legal question was whether ERISA's fiduciary exception applies to Faegre's internal-only documents — documents never shared with defendants.

In ERISA cases, courts have recognized a "fiduciary exception" to attorney-client privilege: plan administrators, who act as trustees owing duties to plan beneficiaries, generally cannot invoke attorney-client privilege against those same beneficiaries regarding communications related to plan administration. Courts, including those in this district, have applied this exception to the work product doctrine as well. The key inquiry is whether a communication was intended to help a trustee fulfill their duty to the beneficiary.

The court agreed with the magistrate judge that Faegre's internal discussions about Krebsbach's claims — even if never shared with defendants — could be relevant because those discussions informed the communications between Faegre and defendants that ultimately impacted the benefits decision. The purpose of the fiduciary exception is to ensure that any document that influenced decision-making is available to a plaintiff challenging that decision. Applying that same reasoning to Faegre's internal documents was not clear error.

Work Product Doctrine

The court noted that whether any specific document is protected by the work product doctrine remains an open question. Faegre's work product objection was premature at this stage because no privilege log had yet been produced. The proper procedure is for Faegre to produce a privilege log identifying documents it claims are protected; the magistrate judge can then conduct an in-camera review (a private judicial inspection) to determine whether those documents actually impacted Krebsbach's benefit claim and whether any must ultimately be produced.

Relevance and Proportionality

The court declined to find that Faegre waived relevance and proportionality arguments, because Faegre raised them in its response to the subpoena and at the hearing. Regardless, the court found that the magistrate judge's order — which was limited to documents relevant to the claim denial and appeal, and which provided an in-camera review mechanism — properly balanced Krebsbach's interest in disclosure against Faegre's interest in protecting legitimately privileged material, thereby appropriately addressing proportionality.

Non-Responsiveness Argument

Faegre also argued that internal-only documents were non-responsive to the subpoena's request for its "entire file." The court found it was not clear error for the magistrate judge to interpret "entire file" to include internal-only documents.

Disposition

Judge Frank overruled Faegre's objection and affirmed Magistrate Judge Elkins's order of May 27, 2026, directing Faegre to produce documents relevant to Krebsbach's claim denial and appeal and to provide a privilege log. All other requested relief was denied.