Krueger v. Ameriprise Fin., Inc.

Full title: ROGER KRUEGER, et al., Plaintiffs, v. AMERIPRISE FINANCIAL, INC., LLC, et…

Court: UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Date published: May 7, 2014

CIVIL NO. 11-2781 (SRN/JSM) (D. Minn. May. 7, 2014)

Opinion

CIVIL NO. 11-2781 (SRN/JSM)

05-07-2014

ROGER KRUEGER, et al., Plaintiffs, v. AMERIPRISE FINANCIAL, INC., LLC, et al., Defendants.

JANIE S. MAYERON, U.S. Magistrate Judge

ORDER

The above matter came on before the undersigned upon Plaintiffs' Motion to Compel [Docket No. 307]. This motion was decided by the Court on the papers.

The Court, being duly advised in the premises, upon all of the files, records, and proceedings herein, now makes and enters the following Order.

IT IS HEREBY ORDERED:

1. Plaintiffs' Motion to Compel [Docket No. 307] is GRANTED in part and DENIED in part as set forth in the Memorandum below.

2. For all documents defendants do not object to this Court's order requiring their production, defendants shall produce these documents to plaintiffs on or before May 15, 2014.

3. Objections to any portion of this Order shall be served and filed on or before May 22, 2014. Dated: May 7, 2014

/s/_________

JANIE S. MAYERON

United States Magistrate Judge MEMORANDUM

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 16, 2013, this Court issued its Second Amended Pretrial Scheduling Order [Docket No. 205], which gave Ameriprise until December 31, 2013 to produce ESI ordered by this Court's August 15, 2013 Order [Docket No. 182]. Ameriprise produced ESI commencing on November 15, 2013, through December 31, 2013, and continued to produce ESI after this date. See Declaration of Kurt Struckhoff [Docket No. 310] ("Struckhoff Decl."), ¶ 3.

On December 5, 2013, Ameriprise's trial counsel, O'Melveny & Meyers LLP ("OMM"), informed plaintiffs' counsel that they did "not intend to log privileged documents related to this litigation as we do not regard them as responsive." Declaration of Abby C. Johnston in Support Defendants' Opposition to Plaintiffs' Motion to Compel [Docket No. 315] ("Johnston Decl."), Ex. A (December 5, 2013 email).

On December 23, 2013, this Court issued an Order requiring Ameriprise to produce a "complete" privilege log to plaintiffs on or before January 31, 2014, for all withheld ESI. See December 23, 2013 Order [Docket No. 280]. At the same time, the Court created a schedule to address plaintiffs' objections to any documents withheld by Ameriprise, and scheduled a hearing to resolve these objections for March 3, 2014.

On December 31, 2013, Ameriprise notified plaintiffs that it had inadvertently produced documents that included communications with counsel about the present litigation. Johnston Decl., Ex. I (December 31, 2013 letter from Ameriprise to plaintiffs).

On January 10, 2013, plaintiffs' counsel notified Ameriprise's counsel that plaintiff:

[N]o longer will agree to O'Melveny communications being exempt from the log, given we see from your list several documents where O'Melveny attorneys are editing meeting minutes, participant communications, or the like. For the entries you desire to clawback in your 12/31/13 letter in addition to other documents you may have considered non-responsive or otherwise excluded from prior logs, we insist they be logged in the same manner as other withheld documents. If you refuse to log these communications, please let us know no later than Wednesday, January 15, 2014. If we do not hear from you by that time, we will assume that all these communications will be logged.

Johnston Decl., Ex. B (January 10, 2014 email letter from plaintiffs to Ameriprise) (emphasis added). In addition, plaintiffs rejected Ameriprise's proposal to include OMM documents to or from primary recipients who had an operations role in the Employee Benefits Administration Committee ("EBAC") or the 401(k) Investment Committee ("KIC") on the privilege log:

We believe that defense counsel's revising of documents concerning the administration of Plaintiffs' plan—which may be used as evidence in this case—is not privileged, is improper, and certainly is relevant. That is why we insist you log documents from or to O'Melveny. Your proposed limitation to only log documents "to" certain individuals is insufficient. The privilege determination (including any application of fiduciary exception) does not turn on who received or sent the document but rather the nature of the document or communication itself. In that sense, it is easier to describe what we can agree does not need to be logged. We are not asking Defendants to log communications or documents that relate to pleadings, discovery responses, or letters to the Court in this case. We are not asking you to log email messages that relate solely to your defense strategy in this case. All other matters must be logged.

Id., Ex. D (January 21, 2014 letter from plaintiffs to Ameriprise); see also Ex. C (January 15, 2014 letter from Ameriprise to plaintiffs).

On January 31, 2014, Ameriprise produced a privilege log that listed 2,742 documents. See Struckhoff Decl., ¶ 12. On the same date, plaintiffs raised a concern that Ameriprise had withheld from production non-privileged documents and had instead produced "slip sheets" stating "Document Withheld as Non-Responsive." See Johnston Decl., Ex. E (February 6, 2014 letter from Ameriprise to plaintiffs). On February 6, 2014, Ameriprise responded to this concern:

These are documents that our team of lawyers determined were non-responsive members of otherwise responsive families. These lawyers made good faith determinations that these documents did not respond to plaintiffs' document requests, and we made the decision to slipsheet them to send out the productions on time. Consistent with our representations to you and the Court, our review team did not conduct a page-by-page review of the documents H5 identified for production. But, also consistent with our discussions with you and the Court, we undertook a quality control review of the documents—the very purpose of which was to confirm the responsiveness of the documents being produced. This included removing documents that are not responsive.

As to the specific documents you identify in your January 31, 2014 e-mail, there is nothing troubling about them, nor are we intentionally withholding responsive documents. Indeed, four of the six documents are duplicates of documents in the production, as shown below, and thus have been produced [.]


* * *

Nonetheless, as further demonstrating our good faith, we are re-reviewing each of the non-responsive slipsheeted documents to confirm that the documents are in fact non-responsive and thus should not be produced. We will review the remaining documents and report back in writing early next week.

Id.

Pursuant to this Court's December 23, 2013 Order, on February 7, 2014, plaintiffs served on Ameriprise, and provided to the Court, a list of 1,643 documents from the privilege log to which they objected.

On February 14, 2014, Ameriprise produced a revised privilege log, which added 75 additional documents to the privilege log. Struckhoff Decl., ¶ 14. This revised production log included documents from Ameriprise's review of the documents "slipsheeted" as being non-responsive and OMM communications. See Defendants' Opposition to Plaintiffs' Motion to Compel [Docket No. 314] ("Defs.' Mem."), pp. 3-4. After the parties' meet and confer regarding plaintiffs' objections, on February 19, 2014, Ameriprise produced 164 of the documents listed on the revised privilege log to plaintiffs. Struckhoff Decl., ¶ 13.

On February 16, 2014, plaintiffs filed the instant motion to compel seeking production of 1,258 documents withheld by Ameriprise. Id., ¶ 15.

In their motion, plaintiffs divided the 1,258 disputed documents into four categories: (1) documents that should be produced under the fiduciary exception to the attorney-client privilege; (2) communications between Ameriprise and its litigation counsel, OMM; (3) documents dealing with the sale of Ameriprise's recordkeeping business (Ameriprise Retirement Services, a division of Ameriprise Trust Company); and (4) the 75 documents added to the privilege log by Ameriprise on February 14, 2014. Id., ¶¶ 16-19. Additionally, within these four categories of documents, plaintiffs sought production of certain documents that Ameriprise claimed it had inadvertently produced and clawed back, which plaintiffs contended Ameriprise had failed to take reasonable steps to prevent their disclosure and had therefore, waived its right to claim any privilege. Memorandum in Support of Plaintiffs' Motion to Compel [Docket No. 309] ("Pls.' Mem."), p. 3.

On February 24, 2014, Ameriprise responded to plaintiffs' motion to compel. On the same day, the Court held a status conference to discuss the motion. As a consequence of that conference, the Court cancelled the hearing on the motion to compel and set up a process to conduct an in camera inspection of the withheld and clawed back documents. March 3, 2014 Order [Docket No. 318].¹

1 This Order provided in relevant part:

3. Counsel and the Court discussed various methods to expedite the Court's in camera review of the approximately 1300 documents withheld by Ameriprise or sought to be clawed back. For example, among the approximately 1300 documents, some of the documents may be identical or nearly identical to other documents that have been withheld. For that situation, Ameriprise was encouraged to identify for plaintiffs and the Court all documents that were identical or nearly identical to other documents so that the Court would only have to review only one copy of that document, and the Court's decision on that document would then govern the Court's ruling on the other identical or nearly identical documents. Another example discussed by counsel and the Court was the possibility of performing an in camera review of a limited number of documents from a category of documents (e.g., documents reflecting settlor functions) such that a ruling on that limited number of documents would govern the balance of the documents within the category. Another option discussed was the possibility of doing an in camera review on a random sample of documents from various categories of documents such that a ruling on that sample would govern the balance of the documents within the category. Based on this discussion, the Court directed Ameriprise to provide to plaintiffs by Noon on March 3, 2014, its written proposal for organizing, grouping and examining the documents withheld to assist the Court in its in camera inspection. Further, the Court directed plaintiffs to respond and provide written input to Ameriprise on or before Noon on March 5, 2014, regarding Ameriprise's proposed categories for organizing, grouping, and examining the documents for the Court's in camera inspection.

4. On or before March 11, 2014 at Noon, Ameriprise shall deliver to the Court the documents for the in camera inspection with a letter to the Court and plaintiff's counsel providing (a) an explanation of the categories used by Ameriprise for organizing and grouping the documents, (b) its proposal for reviewing identical or near identical documents, categories of documents, samples of documents and the like, and (c) the privilege log for only those documents subject to the in camera inspection. In addition, Ameriprise shall provide to the Court and plaintiffs' counsel a list with the names of the employer and the position or title of each individual identified on the in camera privilege log as the custodian, author, or recipient and the like, at the time the document was generated or received. With respect to the in camera privilege log, each document to be reviewed shall be assigned an in camera review (ICR) number starting with the number "1" (and proceed in consecutive numbered sequence) and each such numbered document shall state the entirety of the privilege log description for that document, including the "AMER_PRIV_" control numbers identified on plaintiffs' Exhibit 1 to the Declaration of Kurt Struckhoff in Support of Motion to Compel Kurt [Docket No. 310]. The privilege log shall be organized in the same manner as the documents to be reviewed by the Court, listing the documents by ICR number. Ideally, the documents to be reviewed will be placed in folders or notebooks with the ICR number on the tab of each folder or document.

March 3, 2014 Order [Docket 318].

Pursuant to this Court's Order, on March 10, 2014, Ameriprise submitted to the Court the withheld documents, the list of those individuals identified in the privilege log and a letter to the Court and plaintiffs, along with the "In Camera Review Categorization Chart," setting forth the categories used by it for organizing and grouping the documents for the in camera review. Specifically, Ameriprise divided the documents into the following four categories: (1) documents not falling under the fiduciary exception because they concern the corporate activity of selling the recordkeeping business; (2) documents not falling under the fiduciary exception because they concern threats of liability to the company, Ameriprise 401(k) Plan ("Plan") fiduciaries or other corporate officials; (3) other documents not falling under the fiduciary exception because the documents go toward settlor functions; and (4) other documents not falling under the fiduciary exception because the documents were not directed toward the fiduciaries or the administration of the Plan. Within each of these four categories, Ameriprise broke the documents down into subcategories. As to each subcategory, Ameriprise provided one example document for the Court's in camera review (labeled with an AMER_ICR_* designation along with the corresponding AMER_PRIV_* label). Ameriprise represented that this sample document was representative of all of the other documents listed under that subcategory. In addition to these representative documents, at the end of each of the four categories listed above, Ameriprise itemized single documents to be assessed individually by the Court.

As for the inadvertently produced documents that Ameriprise clawed back, the parties provided the following background. Ameriprise had retained a vendor, H5, to assist with ESI review. H5 applied 200 search terms to over 12 million custodial emails and attachments, which ultimately hit on almost 7 million unique documents that were the subject of H5's review for responsiveness. See November 24, 2013 Joint Report and Status Letter, p. 6. Given the size of the possible production, Ameriprise raised the concern that there was a high likelihood that it would inadvertently produce privileged documents. Id., p. 7. Ultimately, H5 delivered 360,000 potentially privileged documents to Ameriprise to review on a rolling basis for privilege. See Defs.' Mem., p. 17. Ameriprise retained and trained 38 contract attorneys to review the hundreds of thousands of responsive emails that H5 identified as potentially privileged. See December 12, 2013 Joint Report and Status Letter, p. 6. Ameriprise represented to plaintiffs and the Court:

To reduce the number of documents subject to privilege review, Ameriprise will agree to rely on H5 to identify several thousand potentially privileged documents that may qualify for the fiduciary exception, and produce them without human review. Ameriprise will also produce thousands of potentially privileged attachments to emails without human review. These steps are consistent with, and represent an effort to compromise with Plaintiffs' proposals that Ameriprise simply produce its privileged documents without review and rely on the clawback agreement.² Ameriprise will expect the existing clawback provisions of the parties' Amended Protective Order to protect privileged documents that it inadvertently produces.³

Id., p. 10; see also Johnston Decl., Ex. F (December 9, 2013 email) (Ameriprise informing plaintiffs that it "will rely on the existing clawback provisions of the parties' confidentiality order to protect privileged documents that we inadvertently produce.").

2 On several occasions, plaintiffs had proposed that the Court issue an order requiring the production of all documents the search terms generated without waiver of any privilege and allowing Ameriprise to claw back privileged documents pursuant to Federal Rule of Evidence 502. See, e.g., December 12, 2013 Joint Report and Status Letter, p. 9. Rule 502 provides in relevant part, "[a] federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court--in which event the disclosure is also not a waiver in any other federal or state proceeding." Fed. R. Evid. 502(d). No such order was entered by the Court.

3 The Court's March 19, 2013 Amended Protective Order included the following regarding the inadvertent disclosure of documents:

Any party who inadvertently discloses documents that are privileged or otherwise immune from discovery shall, promptly upon discovery of such inadvertent disclosure, so advise the receiving party and request that the documents be returned. The receiving party shall return such inadvertently produced documents, including all copies, within 10 days of receiving such a written request. The party returning such inadvertently produced documents may thereafter seek re-production of any such documents pursuant to applicable law.

March 19, 2013 Amended Protective Order [Docket No. 114], ¶ 18.

From December 10, 2013 through January 24, 2014, Ameriprise inadvertently produced approximately 1,500 documents that it clawed back from plaintiffs. Struckhoff Decl., ¶¶ 4-9; see also Johnston Decl., Exs. G, I, J. A large majority of the clawbacks were the result of Ameriprise's January 7, 2014, discovery production, which included 1181 documents inadvertently produced by Ameriprise. Johnston Decl., Ex. G (January 8, 2014 Johnston email). On January 8, 2014, Ameriprise's counsel asked plaintiffs' counsel to destroy the hard drive produced to plaintiffs with these documents, and represented that Ameriprise would send a replacement drive to plaintiffs' counsel overnight. Johnston Decl., Ex. G (January 8, 2014 Johnston email). In support of its request, Ameriprise stated: "These documents were included in the production because they each had one or more family members produced in full and were produced with slip sheets identifying the document as being withheld for privilege. It was standard operating procedure for the vendor to exclude the extracted text of such documents and replace it with text matching the language on the slip sheet." Id. The slip sheets provided "DOCUMENT WITHHELD AS PRIVILEGED." Id., Ex. H. On January 17, 2014, plaintiffs' counsel responded to the January 8, 2014 clawback request, and notified Ameriprise that they had destroyed the documents as requested, and had destroyed an additional identified number of documents produced that were OMM emails dealing with the present litigation. Id., Ex. K.

B. Parties' Arguments

In support of their motion to compel, plaintiffs first argued that Ameriprise waived the attorney-client privilege as to the 75 documents added to the privilege log on February 14, 2014, because this belated addition violated this Court's order that a complete privilege log be provided to plaintiffs by January 31, 2014. Memorandum in Support of Plaintiffs' Motion to Compel [Docket No. 309] ("Pls.' Mem."), p. 4. The 75 documents at issue are listed in Exhibit 5 of the Struckhoff Declaration.

Second, as to the 484 litigation-related documents that Ameriprise contended did not fall within the fiduciary exception to the attorney-client privilege, plaintiffs asserted that the majority of the documents allegedly addressing threats of liability pre-dated the commencement of this case. Id., at p. 5. According to plaintiffs, any contention by Ameriprise that the interests of the beneficiaries and Plan fiduciaries had sufficiently diverged so as to defeat the fiduciary exception as early as March 2011, due to an advertisement in a newspaper by plaintiffs' counsel⁴ was without merit, as Ameriprise has provided no evidence that Theresa Atanasio⁵ or anyone else within Ameriprise had perceived the March 2011 inquiry to be a threat of imminent litigation or that Ameriprise had asked for legal advice as to the Plan fiduciaries' liability as a consequence of seeing the newspaper advertisement.⁶ See Pls.' Mem., pp. 6-8. Plaintiffs also noted that only five of the 484 fiduciary exception documents referred to the instant suit after it was commenced—AMER_PRIV_002811 (3/5/2013), *002814 (3/6/2013), *002816 (3/11/2013), *002822 (3/13/2013), *002879 (5/31/2013)—whereas the remainder of log entries only generically referenced litigation, thus suggesting nothing more than advice concerning a general risk of litigation and not specific advice as to the fiduciaries' potential liability in any specific litigation. Id., p. 8.

4 The advertisement at issue, provided to the Court during the January 10, 2014 hearing on a separate motion to compel, stated:

5 Theresa Atanasio was Vice President and Group Counsel to the Plan at all times relevant to the present action.

6 Indeed, the Court in its February 24, 2014 Order Court found that while the advertisement in March 2011, may have caused Atanasio to seek advice from outside counsel, Harter Secrest, in May 2011, concerning a general fear of liability or a general prospect of litigation, it was abundantly clear that the law firm had not been retained for the purpose of addressing pending litigation against the Plan fiduciaries or even a threat of imminent litigation by the Plan beneficiaries. February 24, 2014 Order [Docket No. 313], p. 45 ("Recognizing that there is always a generalized possibility of litigation if fiduciaries do not perform their duties properly, the Court finds that the advice sought and given by Harter Secrest to Atanasio . . . was for the purpose of advising the Plan fiduciaries on the proper administration of the Plan, an area clearly within the fiduciary exception.").

As for the 133 entries dated after commencement of this suit on September 28, 2011, plaintiffs asserted that they too fell within the fiduciary exception because the logs do not specifically state that the documents contained advice to fiduciaries on their personal liability for claims in this lawsuit, and in any event, some of the entries indicated that the documents pertained to matters of general plan administration. Id., pp. 8-9. In addition, plaintiffs noted that 216 fiduciary exception privilege entries involved communications that did not involve any attorneys. Plaintiffs argued that since no attorneys were involved with the communications, the documents could not be withheld on the basis of the attorney-client privilege. Id., p. 9.

Third, with regard to the OMM materials, plaintiffs maintained that 151 entries describing documents reviewed by OMM in its role as litigation counsel dealt with fiduciary functions, such as fiduciary committee (EBAC and KIC) minutes, communications to participants about the Plan (including summary plan descriptions and statements of material modifications), contract documents with Plan service providers, and Plan financial statements. Id., pp. 9-10; see also Struckhoff Decl., Ex. 3 (including the contested OMM privilege entries). Because the materials dealt with the fiduciary duties of the Plan administrator, plaintiffs argued that the OMM materials should be produced under the fiduciary exception to the attorney-client privilege. Id., p. 10. In addition, plaintiffs maintained that entries regarding the review of Plan materials were ambiguous as to whether OMM's review was for the purpose of suggesting revisions to Plan administration materials; some entries made references to "401(k) changes," which suggested changes to the investments of the Plan; 25 entries did not state an author or recipient, bringing into question whether the withheld documents were even attorney-client communications in the first place; and some of the entries lacked a subject heading, and state instead, "REDACTED-ATTORNEY CLIENT PRIVILEGE." Id., pp. 10-11.

Fourth, as to the 549 documents relating to the sale of Ameriprise's recordkeeping business (Ameriprise Retirement Services ("ARS"), a division of Ameriprise Trust Company ("ATC")), plaintiffs submitted that these documents concerned fiduciary functions and the breach of fiduciary duty claims in this case, and were therefore subject to production under the fiduciary exception to the attorney-client privilege. Id., pp. 11-12. Plaintiffs acknowledged that while they were not entitled to documents reflecting attorney communications concerning the decision to sell ARS to Wachovia, as the sale fell outside of ERISA regulations, they were entitled to evidence showing that Ameriprise received profits from the unlawful use of the Plan assets to "prop up" ARS for its sale to Wachovia. Id., p. 11. For example, communications regarding the structuring of the ARS sale that referenced revenue-sharing fees from the Plan or that revenue-sharing investments in the Plan would remain in the Plan after the sale, concerned fiduciary functions and should be produced. Id., pp. 11-12. Plaintiffs also claimed that many of the entries related to services provided and fees charged to Plan participants after the recordkeeping sale agreement was finalized, which implicated the administration and management of the Plan. Id., p. 12. Examples cited by plaintiffs included "Interim Services Agreement," "transfer of funds," "revenue share," "investment management," "fund options," "fee schedules," and "Mutual Fund Schedules." Id. (citing Struckhoff Decl. Ex. 4).

Plaintiffs also took issue with the withholding of 262 documents that referred to an Asset Purchase Agreement ("APA"), as the entries for these documents appeared to cover business advice as opposed to legal advice; plaintiffs complained that 107 communications were distributed to ten or more individuals, making it impossible to ascertain whether the documents were distributed beyond those persons who needed to know their contents; and plaintiffs asserted that 72 of the logged documents were shared with third-parties, thereby waiving the attorney-client privilege. Id., pp. 12-13.

Finally, plaintiffs asserted that the inadvertent production of documents covered by the attorney-client privilege, almost 1,500 documents, established that Ameriprise did not take reasonable steps to prevent disclosure as is required by Federal Rule of Evidence 502(b), to permit Ameriprise to claw back privileged documents. Id., p. 14. Many of these documents were emails from OMM, whose privileged status should have been clear from the face of the documents with the exercise of reasonable due diligence, and their production was not discovered by Ameriprise until plaintiffs notified it on January 17, 2014. Id., p. 15. While plaintiffs claimed they were not seeking production of OMM emails regarding the pleadings in this case, they asserted that the fact that such emails were produced and not even detected by Ameriprise evidenced its failure to take reasonable steps to prevent the inadvertent disclosure of privileged communications. Id.

Ameriprise countered that it did not waive the privilege as to the documents that were added to privilege log on February 14, 2014, because it was not until January 10, 2014, that plaintiffs informed Ameriprise that OMM communications with in-house litigation counsel would need to be logged, and it was not until January 21, 2014, that plaintiffs rejected Ameriprise's proposal to limit the logging of documents to communications between OMM and those recipients whose duties included an operational role with respect to the EBAC or KIC. Defs.' Mem., pp. 2-3. Then, after the parties' meet and confer on February 12, 2014, Ameriprise logged 19 additional OMM communications. Id.

As to the second category of documents added to the log after January 31, 2014, which were originally produced with a slip sheet stating that documents were non-responsive, on January 31, 2014, in response to concerns raised by plaintiffs, Ameriprise reviewed more than 10,000 documents that had been reflected by a slip sheet, resulting in the addition of 64 documents to the log on February 14, 2014, and the production of about 260 documents on February 19. Id., p. 4. Ameriprise argued that it should not be punished for acting diligently and in good faith to alleviate plaintiffs' concerns. Id., p. 4.

As for the 484 documents plaintiffs contended were governed by the fiduciary exception, Ameriprise argued that plaintiffs have ignored the fact that many of the contested documents dealt with "settlor" activities, such as the establishment and structuring of the Plan, and have misconstrued the safe harbor allowed for litigation-related communications, and Ameriprise citied to some examples. Id., pp. 4-7. Ameriprise also asserted that some documents on the privilege log related to legal advice provided to investment managers regarding investment products, some of which ended up in the Plan. Id., p. 8. According to Ameriprise, the fiduciary exception does not apply to these documents, as this advice was not meant for the fiduciaries or Plan administrators, including documents relating to legal advice on fund pricing that were never sent or used to advise Plan fiduciaries. Id. In addition, Ameriprise claimed that many of the documents were not covered by the fiduciary exception because the content and the context of the document related to a specific threat of litigation. Id., pp. 9-10. Ameriprise also took issue with plaintiffs' claim that 216 of the challenged fiduciary exception documents were not attorney-client communications because they are not to or from an attorney, stating that many were documents as opposed to emails. Id., p. 10 n.5. Further, Ameriprise asserted that the fact that an email does not contain an attorney in the "to" or "from" line does not mean that it is not governed by the attorney-client privilege. Id.

With regard to communications between OMM and in-house litigation counsel evaluating Plan materials during the course of this suit, Ameriprise argued that the fiduciary exception does not apply to these documents where plaintiffs have challenged Ameriprise's conduct on an on-going basis, and OMM's representation necessarily requires it to assess Ameriprise's on-going Plan-related activities and advise Ameriprise on the implications of those activities on this litigation. Id., pp. 11-12. To find otherwise would limit OMM's ability to advise Ameriprise on its threat of liability. Id., p. 12. Additionally, Ameriprise claimed that the 10 entries that have redacted "subject" lines do not preclude it from asserting the attorney-client privilege, as the subject lines were redacted because they contained privileged information. Id., p. 13.

With respect to those documents Ameriprise withheld relating to its sale of the recordkeeping business to Wachovia in 2006, Ameriprise submitted that the documents were not covered by the fiduciary exception, as the sale of the business was purely a corporate act in which the corporation's fiduciary duties, through its board of directors, are owed to its shareholders and not plan participants. Id. Ameriprise also disputed plaintiffs' contention that advice from attorneys related to the APA between Wachovia and Ameriprise was not privileged, as the Eighth Circuit has found "that advice from transactional attorneys is properly privileged even when it is 'intimately intertwined with and difficult to distinguish from business advice' that the communications are privileged, especially where 'disclosure might reveal [the client's] confidential communications.'" Id., pp. 14-15 (quoting Sedco Int'l, S.A. v. Cory, 683 F.2d 1201, 1205-06 (8th Cir. 1982)). Ameriprise noted that most of the challenged documents were attorney edits and comments to drafts of the APA, which are privileged. Id., p. 15.

Additionally, the fact that 107 documents bearing on the sale of the recordkeeping business were disseminated to a large number of employees (in some cases, 20 or 30 employees), did not negate the attorney-client privilege, especially when the communications dealt with a $66 million transaction, and many of the individuals receiving the documents were lawyers or high-level employees essential to the transaction. Id., p. 15.

Likewise, Ameriprise asserted that there was no waiver merely because some of the communications were sent to a third party, De Guardiola Advisors, Inc., an investment bank that advised Ameriprise on the sale of the recordkeeping business, and was intimately involved in the legal and financial aspects of the transaction. Id., p. 16 (citing In re Bieter Co., 16 F.3d 929, 937-38 (8th Cir. 1994); In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000)).

As for plaintiffs' claim that Ameriprise should not be permitted to claw back the inadvertent production of approximately 1,500 documents, Ameriprise argued that a finding of waiver was inappropriate as it took several reasonable steps to prevent the disclosure of privileged documents. First, it made H5 exclude potentially privileged materials based on attorney lists and keywords developed through advanced linguistic tools and analytic software. Id., pp. 20-21. Second, it hired and trained teams of contract attorneys who were supervised and quality-controlled by review team members and OMM. Id., p. 21. Third, it not only entered into a protective order with a clawback provision, but it notified the Court that it would need to rely on this provision given the magnitude and timing of the review. Id., p. 22. Under these circumstances, it was appropriate for Ameriprise to rely on H5 to properly withhold the text from the slip-sheeted documents, especially where H5 had properly done so in the past. Id., p. 23.

In addition, Ameriprise noted it had produced 455,000 documents or 2.3 million pages of documents in the span of five weeks, and only clawed back 1,471 documents, which amounts to 0.3% of the production. Id., p. 24. In fact, excluding the 1,181 documents of extracted text produced because of H5's error, Ameriprise only inadvertently produced 0.06% of all documents produced. Id.

Finally, Ameriprise maintained that it took prompt action to claw back the documents that had been inadvertently produced, and justice would be served by relieving it of its error, particularly where many of the documents (142 in number) dealt with Ameriprise's communications with OMM regarding the present action. Id., pp. 25-26.

In reply, plaintiffs argued that they never agreed to allow Ameriprise to omit all OMM communications from the privilege log. See Reply in Support of Plaintiffs' Motion to Compel [Docket No. 316], pp. 1-2. Instead, plaintiffs believed that only OMM communications addressing the pleadings in the present matter would be excluded from the privilege log. Id., p. 2. In any event, plaintiffs contended that because they informed Ameriprise on January 10, 2014, that Ameriprise needed to log the OMM documents, Ameriprise had plenty of time to log these documents by the January 31, 2014 deadline, and failed to do so. Id., p. 2.

As to Ameriprise's position regarding the fiduciary exception, plaintiffs contended that some of the documents were dated well before the present litigation or only referred to a general fear of litigation, and that Ameriprise failed to provide any evidence to support its assertion that the documents concerned legal advice to fiduciaries related to its liability to the beneficiaries in the present action. Id., pp. 5-6. In addition, plaintiffs asserted that while Ameriprise claimed that many of the documents dealt with settlor or non-fiduciary activities, it failed to identify in its log which documents fell within this category of activities, instead relying on examples in its brief. Id., p. 6. Plaintiffs took the position that they are entitled to any document addressing the investments to be included in the Plan, how recordkeeping services were to be provided or paid for, and the selection of individual fiduciary committee members, as these are key fiduciary functions and within the fiduciary exception. Id., pp. 6-7. Plaintiffs also claimed that documents relating to the Employee Benefits Agreement fell within the fiduciary exception because Ameriprise asserted that the fiduciaries were compelled to the clone the American Express Plan as a result of this agreement. Id., p. 7. Further, plaintiffs requested that Ameriprise be required to produce documents relating to legal advice provided to non-fiduciaries regarding Ameriprise's investment products, and documents relating to the sale of the recordkeeping business to Wachovia that reflected the fees that the Plan would generate for Wachovia after the sale. Id., pp. 7-8.

With respect OMM materials, plaintiffs reiterated that they only want ESI "relating to trial counsel's attempts to alter (or suggest revisions to) Plan materials." Id., p. 8 (emphasis in original). Plaintiffs emphasized that advice regarding the proper execution of fiduciary functions is discoverable by the beneficiaries even after the initiation of legal action. Id., p. 9.

As to documents regarding the sales of the recordkeeping business, plaintiffs complained that Ameriprise failed to distinguish between documents pertaining to legal advice and those pertaining to business advice, making an in camera inspection necessary. Id. Ameriprise admitted that ESI regarding the sale of the record-keeping business concerning revenue-sharing or fee arrangements for the Plan must be produced, and Ameriprise claimed that they produced all such documents, however, plaintiffs contended that Ameriprise had failed to provide any proof of this. Id., p. 10. As such, plaintiffs asked the Court to examine the sale of the recordkeeping documents to determine whether they "contain information regarding revenue sharing or fee arrangement for the Plan." Id., p. 10.

Plaintiffs reiterated that some of the documents relating to the sale of the recordkeeping business were disseminated to large numbers of people, many of whom were not identified by Ameriprise, suggesting that these documents were distributed to people who did not need to know the information, thereby waiving the privilege. Id. Ameriprise also failed to address some of the third-parties receiving attorney communications pertaining to the sale, including Paul Jacobson at Wachovia and Lee Greenhalgh at RBC Capital Market. Id. (citing AMER_PRIV_001419, *1421, *1534). As to De Guardiola Advisor, Inc., plaintiffs maintained that Ameriprise has not shown that there was a common legal interest between the DeGuardiola and Ameriprise, as opposed to a business interest, or that the ESI was distributed to this entity for the purposes of obtaining legal advice. Id., pp. 11-12.

Finally, plaintiffs argued that Ameriprise failed to set forth any evidence (i.e., via a declaration) supporting the actions it took with regard to its inadvertent disclosures. Id., p. 12. While Ameriprise addressed the elements regarding whether the production of attorney-client communications was inadvertent under Rule 502(b), plaintiffs argued that Ameriprise failed to explain how the inadvertent disclosures could have been reasonable given that OMM communications concerning this litigation were produced. Id. Plaintiffs maintained that Ameriprise should not be permitted to wait until late in the process to produce ESI, cut corners on its screening process, and then rely on clawback letters to clean up its mess. Id., pp. 12-13.

II. STANDARD OF REVIEW

A. Applicability of the Attorney-Client Privilege

In general, confidential communications between individuals and attorneys for the purpose of obtaining or rendering legal advice are privileged. See Upjohn v. United States, 449 U.S. 383, 394-95 (1981); see also Fisher v. United States, 425 U.S. 391, 403-04 (1976); United States v. Horvath, 731 F.2d 557, 561 (8th Cir. 1984); Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 601 (8th Cir. 1977) (The attorney-client privilege is "the long established rule that confidential communications between an attorney and his client are absolutely privileged from disclosure against the will of the client."). The purpose of the attorney-client privilege "is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Co., 449 U.S. at 389. "The party asserting the attorney-client privilege . . . bears the burden to provide a factual basis for its assertions." Triple Five of Minnesota, Inc. v. Simon, 212 F.R.D. 523, 528 (D. Minn. 2002) (citing Hollins v. Powell, 773 F.2d 191, 196 (8th Cir. 1985)); see also In re Grand Jury Proceedings, 791 F.2d 663, 666 (8th Cir. 1986). The party asserting the attorney-client privilege cannot rest on conclusory arguments in their memorandum of law in support of their invocation of the attorney-client privilege, but instead must rely on competent evidence, such as the explanatory affidavit from counsel setting forth facts under oath establishing the privileged nature of a communication. See Triple Five of Minnesota, Inc., 212 F.R.D. at 528 (citing Rabushka ex rel. U.S. v. Crane Co., 122 F.3d 559, 565 (8th Cir. 1997) (finding that burden of supporting a finding of privilege is met when the party asserting the privilege submits an explanatory affidavit from counsel setting forth facts under oath establishing that the communication met the requirements for a privileged communication); see also Cobell v. Norton, 213 F.R.D. 16, 23 (D.D.C. 2003) (quoting Martin v. Valley National Bank of Arizona, 140 F.R.D. 291, 302 (S.D.N.Y. 1991)) (internal citation and marks omitted) ("The privilege must be shown by competent evidence and cannot be discharged by mere conclusory or ipse dixit assertions.").

In the corporate context, the attorney-client privilege is applicable if "the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents." Diversified Indus., Inc., 572 F.2d at 609. This can extend to communications involving third-parties, who by virtue of their relationship with a party in the litigation, make it necessary for an attorney to communicate with the third-party in order to know all that relates to the client's reasons for seeking representation. See In re Bieter Co., 16 F.3d at 937-38.

The attorney-client privilege applies only to confidential communications made to facilitate legal services, and does not apply where a lawyer acts as a scrivener or business advisor. See United States v. Horvath, 731 F.2d 557, 561 (8th Cir. 1984) (citations omitted); see also United States v. Spencer, 700 F.3d 317, 320 (8th Cir. 2012) (citation omitted) ("[W]hen an attorney acts in other capacities, such as a conduit for a client's funds, as a scrivener, or as a business advisor, the privilege does not apply."); Simon v. G.D. Searle & Co., 816 F.2d 397, 403 (8th Cir. 1987) (finding that the attorney-client privilege does not protect client communications that relate only to business information); Diversified Indus., Inc., 572 F.2d at 602 ("A communication is not privileged simply because it is made by or to a person who happens to be a lawyer.") (citations omitted); Boca Investerings P'Ship v. United States, 31 F. Supp.2d 9, 11 (D.D.C. 1998) (citing Upjohn Co., 449 U.S. at 389-97) ("By contrast, communications made by and to the same in-house lawyer with respect to business matters, management decisions or business advice are not protected by the privilege.") (citation omitted). For the attorney-client privilege to apply, the legal advice must predominate over the business advice, and not be merely incidental. See In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 675 (D. Kan. 2005) ("Legal advice must predominate for the communication to be protected. The privilege does not apply where the legal advice is merely incidental to business advice."); Neuder v. Battelle Pac. N.W. Nat'l Lab., 194 F.R.D. 289, 292 (D.D.C. 2000) (citing Great Plains Mutual Ins. Co. v. Mut. Reinsurance Bureau, 150 F.R.D. 193, 197 (D. Kan. 1993)) (finding that where business and legal advice are inextricably intertwined, the legal advice must predominate over the business advice, and not be merely incidental, for the communications to be protected by the attorney-client privilege). That said, "legal advice concerning commercial transactions is often intimately intertwined with and difficult to distinguish from business advice." Sedco Int'l, S.A., 683 F.2d at 1205-06 (citations omitted).

Further, "'[p]reliminary drafts of contracts are generally protected by attorney-client privilege, since [p]reliminary drafts may reflect not only client confidences, but also the legal advice and opinions of attorneys, all of which is protected by the attorney-client privilege.'" In re Mentor Corp. ObTape Transobturator Sling Prods. Liab., 632 F. Supp.2d 1370, 1382 (M.D. Ga. 2009) (quoting Muller v. Walt Disney Prods., 871 F. Supp. 678, 682 (S.D.N.Y. 1994), citing Schenet v. Anderson, 678 F. Supp. 1280, 1284 (E.D. Mich. 1988)); see also Andritz Sprout-Bauer, Inc. v. Beazer E., Inc., 174 F.R.D. 609, 633 (M.D. Pa. 1997) ("Drafts of documents prepared by counsel or circulated to counsel for comments on legal issues are considered privileged if they were prepared or circulated for the purpose of giving or obtaining legal advice and contain information or comments not included in the final version.") (citations omitted); Upsher-Smith Labs., Inc. v. Mylan Labs., Inc., 944 F .Supp. 1411, 1445 (D. Minn. 1996) (same). However, the premise for this protection is that the draft reflects legal advice as to the drafting of the agreement, as opposed to simple editorial changes. See Musa-Muaremi v. Florists' Transworld Delivery, Inc., 270 F.R.D. 312, 316 (N.D. Ill. 2010) ("But the premise for protection must be that legal advice is communicated. Here, there is no legal advice or request for legal advice apparent in any of the documents. The contribution by FTD's counsel is strictly editorial—word-smithing. . . .").

B. Fiduciary Exception to the Attorney-Client Privilege

This Court has already discussed in great detail the scope, genesis and rationale for the fiduciary exception to the attorney-client privilege in its Order dated February 24, 2014, pp. 26-43 [Docket No. 313] and it incorporates that discussion into this Memorandum. To summarize, "[f]iduciary functions include matters of plan management and administration, such as discretionary decisions regarding investment or liquidation of plan assets, communications to plan beneficiaries, and plan benefits claim and review. . . ." Tatum v. R.J. Reynolds Tobacco Co., 247 F.R.D. 488, 496 (M.D.N.C. 2008) (internal citations omitted); see also King v. Nat'l Human Res. Comm., Inc., 218 F.3d 719, 724 (7th Cir. 2000) ("ERISA provides at 29 U.S.C. § 1002(21)(A) that: [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 ... or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan").

However, when "employers adopt, modify, or terminate plans that provide pension benefits, 'they do not act as fiduciaries, but are analogous to the settlors of a trust.'" Schultz v. Windstream Commc'ns, Inc., 600 F.3d 948, 951 (8th Cir. 2010) (quoting Lockheed Corp. v. Spink, 517 U.S. 882, 890 (1996)) (citations omitted); see also Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 444 (1999) ("ERISA's fiduciary duty requirement simply is not implicated where [employer], acting as the Plan's settlor, makes a decision regarding the form or structure of the Plan such as who is entitled to receive Plan benefits and in what amounts, or how such benefits are calculated."); Hunter v. Caliber Sys., Inc., 220 F.3d 702, 718 (6th Cir. 2000) ("[E]mployers who are also plan sponsors wear two hats: one as a fiduciary in administering or managing the plan for the benefit of participants and the other as employer in performing settlor functions such as establishing, funding, amending, and terminating the trust."); In re Long Island Lighting Co., 129 F.3d 268, 271 (2d Cir. 1997) (citations omitted) ("Under ERISA, an employer may perform both fiduciary functions and non-fiduciary functions. In line with other circuits, we have held that an employer acts as an ERISA fiduciary only in plan management or administration, not in the plan's design or amendment."); Anderson v. Resolution Trust Corp., 66 F.3d 956, 960 (8th Cir. 1995) ("An employer's decision to amend . . . an employee benefit plan is unconstrained by the fiduciary duties that ERISA imposes on plan administration.").

The distinction between settlor and fiduciary functions is important, as a "plan administrator may assert attorney-client privilege as to communications between the administrator and its attorneys on-non-fiduciary matters, such as when the communications relate to plan sponsor or 'settlor' functions of adopting, amending, or terminating an ERISA plan, and not to fiduciary functions of managing or administering the plan." Tatum, 247 F.R.D. at 493.

Consequently, "[a]s applied in the ERISA context, the fiduciary exception [to the attorney-client privilege] provides that an employer acting in the capacity of ERISA fiduciary is disabled from asserting the attorney-client privilege against plan beneficiaries on matters of plan administration." United States v. Mett, 178 F.3d 1058, 1063 (9th Cir. 1999) (marks and citation omitted); see In re Long Island Lighting Co., 129 F.3d at 271 ("The employer's ability to invoke the attorney-client privilege to resist disclosure sought by plan beneficiaries turns on whether or not the communication concerned a matter as to which the employer owed a fiduciary obligation to the beneficiaries.").⁷ Further, "when the same lawyer gives advice to the employer (i) as employer on matters that are non-fiduciary under ERISA, and (ii) as plan fiduciary, the privileged consultation on non-fiduciary matters does not defeat the fiduciary exception that allows beneficiaries to discover the otherwise privileged communications on fiduciary matters." In re Long Island Lighting Co., 129 F.3d at 272.

7 The Complaint in this action asserts that Ameriprise violated ERISA's fiduciary standards. The Eighth Circuit has yet to expressly adopt the application of the fiduciary exception to the attorney-client privilege, however the parties and the Court are in agreement that the exception exists. In Carr v. Anheuser-Busch Cos., Inc., the Eighth Circuit determined that the district court's ruling, following an in camera inspection of documents, that only one of the four emails were governed by the fiduciary exception, was not a gross abuse of discretion. 495 Fed. Appx. 757, 768-69 (8th Cir. 2012). In reaching that determination, the appellate court relied on two cases from other jurisdictions. Id. (citing United States v. Mett, 178 F.3d 1058, 1064 (9th Cir. 1999) (concluding that the fiduciary exception applies only to communications that involve plan administration); Smith v. Jefferson Pilot Fin. Ins. Co., 245 F.R.D. 45, 48 (D. Mass. 2007) (determining the content and context of the communication must be examined, including whether the communication was made before or after the decision to deny benefits, to determine whether a particular attorney-client communication involves plan administration or legal advice for the fiduciary's own benefit)).

In discussing the fiduciary exception, in addition to addressing distinctions between settlor and plan administration functions, courts also apply what has been described as the "liability exception." Hill v. State Street Corp., Civ. No. 09-10750-DJC, 2013 WL 6909524, at *3 (D. Mass. Dec. 30, 2013). "The liability exception 'recognizes that a fiduciary who seeks the advice of counsel for its own personal defense in anticipation of adversarial proceedings against its beneficiaries retains the attorney- client privilege because, in such situations, the beneficiaries are clearly not the 'real' client.'" Id. (quoting Cottillion v. United Refining Co., 279 F.R.D. 290, 301 (W.D. Pa. 2011).

In other words, "when a plan fiduciary retains counsel and seeks legal advice for his or her own protection against plan beneficiaries, the 'legal fiction of "trustee as representative of the beneficiaries" is dispelled, notwithstanding the fact that the legal advice may relate to the trustee's administration of the trust.'" Tatum v. R.J. Reynolds Tobacco Co., 247 F.R.D. 488, 493 (M.D.N.C.2008) (quoting Mett, 178 F.3d at 1065). Whether any particular communication falls within this liability limitation requires "close examination of the circumstances and whether the legal advice to the plan fiduciary can be considered in anticipation of litigation, as opposed to advice obtained as part of the fiduciary's ordinary administration of the plan." Id. at 497 (citing, e.g., Wachtel, 482 F.3d at 233). The critical inquiry with respect to the liability exception is whether there exists a 'divergence of interests and a threat of litigation' such that it is warranted for the fiduciary to obtain confidential advice from counsel and assert attorney-client privilege on the matter against the beneficiary. Id. at 498 (citing Mett, 178 F.3d at 1063-64; Wildbur v. ARCO Chemical Co., 974 F.2d 631, 645 (5th Cir.1992))."

Cottillion, 279 F.R.D. at 301; Allen v. Honeywell Retirement Earnings Plan, 698 F. Supp. 2d 1197, 1201 (D. Ariz. 2010) ("The interests of plan participants and plan administrators undoubtedly diverge sufficiently upon the final denial of an administrative claim or upon the initiation of litigation.") (citation omitted). "The inquiry centers on whether the purpose of the communication was legal advice regarding the liability of a plan administrator in imminent or pending litigation, as opposed to advice concerning a general fear of liability or advice concerning plan administration itself." Buzzanga v. Life Ins. Co. of North America, No. 4:09-CV-1353 (CEJ), 2010 WL 1292162, at *3 (E.D. Mo. April 05, 2010).

Thus, as the court in Mett explained:

[T]he case authorities mark out two ends of a spectrum. On the one hand, where an ERISA trustee seeks an attorney's advice on a matter of plan administration and where the advice clearly does not implicate the trustee in any personal capacity, the trustee cannot invoke the attorney-client privilege against the plan beneficiaries. On the other hand, where a plan fiduciary retains counsel in order to defend herself against the plan beneficiaries (or the government acting in their stead), the attorney-client privilege remains intact.

178 F.3d at 1064.

"Determining where on the spectrum particular communications fall depends on the 'context and content' of the communications." Allen, 698 F. Supp.2d at 1201 (quoting Mett, 178 F.3d at 1064); see also Carr, 791 F. Supp.2d at 675, aff'd, 495 Fed. Appx. 757 (8th Cir. 2012) ("In order to determine whether a particular attorney-client communication concerns either a matter of plan administration or legal advice for the fiduciary's own benefit, both the content and the context of the communication must be examined.") (citation omitted); Tatum, 247 F.R.D. at 495 ("The application of the exception to any particular communication is a matter of context and content, and includes consideration of whether the communication is related to fiduciary functions of managing or administering the plan, or to settlor functions of adopting or amending the plan, or to legal advice to protect the plan administrator from personal liability where the administrator's interests are adversarial to those of the plan beneficiaries.").

In examining the application of the "liability exception" to the fiduciary exception to the attorney-client privilege, the cases generally fall into two different categories. In the first category, the cases involve legal advice given by attorneys to the plan fiduciary regarding the acceptance or denial of a claim for benefits under an ERISA plan. See e.g., Carr, supra; Buzzanga, supra; Allen, supra; Smith, supra; Geissal v. Moore Med. Corp., 192 F.R.D. 620 (E.D. Mo. 2000). In the second category, the cases involve legal advice communicated to the plan fiduciary regarding certain actions contemplated or taken by the plan fiduciary that affect the plan in general (and may or may not yet have led to a claim by a beneficiary). See, e.g., Mett, supra; Hill, supra; Cottillion, supra; Tatum, supra; Halbach v. Great-West Life & Annuity Ins. Co., No. 4:05-CV-2399 ERW, 2006 WL 3803696 (E.D. Mo. Nov. 21, 2006).⁸

8 The Court refers the parties to its Order dated February 24, 2014, for the lengthy discussion and analysis of these two lines of cases. Order dated February 24, 2014, pp. 26-43.

In sum, whether the courts are examining communications between legal counsel and plan fiduciaries in the context of a specific denial of a claim for benefits, or in the context of plan administration conduct that adversely affected the benefits of one or more beneficiaries, the key factor driving the Court's analysis of the application of the liability exception to the fiduciary exception, after taking into account the context and contents of the communication, is whether and "when the interests of the ERISA plan fiduciary and the plan beneficiaries have diverged sufficiently such that the fiduciary . . . [is acting] in its own interest to defend itself against the plan beneficiaries. . . .'" Tatum, 247 F.R.D. at 497.

C. Inadvertent Disclosures Under Rule 502(b)

When a disclosure is made in a federal proceeding, the disclosure does not operate as a waiver in a federal or state proceeding if: "(1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error. . . ." Fed. R. Evd. 502(b). Factors considered in analyzing whether an inadvertent disclosure constitutes a waiver of privilege include:

(1) the reasonableness of the precautions taken to prevent inadvertent disclosure in light of the extent of document production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) the promptness of measures taken to remedy the problem, and (5) whether justice is served by relieving the party of its error.

Starway v. Indep. Sch. Dist. No. 625, 187 F.R.D. 595, 597 (D. Minn. 1999) (citing Gray v. Bicknell, 86 F.3d 1472, 1484 (8th Cir. 1996); Hydraflow, Inc. v. Enidine Inc., 145 F.R.D. 626, 637 (W.D.N.Y. 1993)); Ewald v. Royal Norwegian Embassy, Civ No. 11-2116 (SRN/SER), 2014 WL 1309095, at *7 (D. Minn. April 1, 2014) (same); see also Advisory Comm. Notes, Fed. R. Evid. 502(b) (2011 Amendments) ("The stated factors (none of which is dispositive) are the reasonableness of precautions taken, the time taken to rectify the error, the scope of discovery, the extent of disclosure and the overriding issue of fairness. The rule does not explicitly codify that test, because it is really a set of non-determinative guidelines that vary from case to case. The rule is flexible enough to accommodate any of those listed factors. Other considerations bearing on the reasonableness of a producing party's efforts include the number of documents to be reviewed and the time constraints for production. Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken 'reasonable steps' to prevent inadvertent disclosure. The implementation of an efficient system of records management before litigation may also be relevant.").

III. ANALYSIS

In light of the principles described in Section II of this Memorandum, the Court now turns to the specifics of plaintiffs' motion.

A. Waiver of the Attorney-Client Privilege as to the 75 Documents added to the Privilege Log by Ameriprise on February 14 , 2014

This Court denies plaintiffs' motion to compel production of the 75 documents included on Ameriprise's privilege log on February 14, 2014, fourteen days after the log was ordered to be produced by this Court. These documents consisted of OMM communications with Ameriprise in-house counsel and documents that were initially determined by Ameriprise to be non-responsive and were not reviewed for privilege.

The Court concludes that Ameriprise acted in good faith and with diligence as it relates to the late addition of OMM communications. Indeed, Ameriprise communicated on December 5, 2013, to plaintiffs that it was not going to log any OMM communications. Plaintiffs did not respond until January 10, 2014. While plaintiffs claimed that they only agreed to exempt OMM communications concerning the filings in this case, this is belied by Ameriprise's December 5 letter informing plaintiffs that all OMM communications would not be logged, and plaintiffs' statement over a month later that they would "no longer agree" to exempt OMM communications from being logged. See Johnston Decl., Exs. A, B. Further, there was no mention by plaintiffs in their January 10, 2014 letter that they had only agreed to allow OMM communications regarding the filing in this action to be excused from logging. Moreover, the Court does not find it significant that it took Ameriprise over a month to log these documents, considering that the parties were engaged in efforts to resolve this issue throughout the month of January. In any event, plaintiffs have not provided any evidence of prejudice resulting from the additional two weeks it took for Ameriprise to log these documents.

Similarly, as to the documents initially deemed non-responsive by Ameriprise as noted by a slip sheet, and therefore, not reviewed for privilege, these documents could not have been logged by January 31, 2014, because the issue was not raised by plaintiffs until January 31, 2014. Once plaintiffs raised their concerns over the magnitude of the slip-sheeted documents, Ameriprise reviewed them again (approximately 10,000 documents) and ultimately logged an additional 64 documents on February 14, 2014, and produced about 260 documents on February 19. On this record, the Court finds that Ameriprise did not intend to violate this Court's Order, nor did it disregarded its obligations under the Order, so as to find waiver appropriate. Again, plaintiffs have not identified any prejudice resulting from the late logging of these documents.

B. In Camera Review of Documents

Set out below are the specific documents this Court is ordering Ameriprise produce, and the rationale for rejecting Ameriprise's withholding of those documents based on the assertion of the attorney-client privilege. As for documents not listed, the Court determined that they were privileged and shall not be produced.

Before addressing these documents, the Court feels compelled to state that it is cognizant of the fact that in its opposition to plaintiffs' motion to compel, Ameriprise did not provide any competent evidence via affidavit or declaration to support its assertions of the attorney-client privilege or why the fiduciary exceptions to the privilege did not apply. For example, Ameriprise provided no evidence to defend its claims that the multitudes of persons who were sent particular documents had a need to know the contents of those documents, or that third parties who received a document were integrally involved in the provision of legal advice, or that an in-house lawyer was acting in his or capacity as a lawyer rather than as a business advisor. This dearth of evidence alone could have resulted in the wholesale rejection of Ameriprise's assertion of privilege for many documents included within the in camera review. See Triple Five of Minn., Inc., 212 F.R.D. at 528 (citing Rabushka ex rel. U.S. v. Crane Co., 122 F.3d at 565). However, the Court did not reach that result. Instead, the Court based its determinations on the legal framework set forth in Section II, the content and context of each document, the descriptions contained in the privilege log, and the list of individuals setting out their affiliation and position at the time the document was generated. But, if based on this limited information, the Court had no basis from which it could conclude that legal advice was sought or given, or that the persons receiving the document were within the circle of those persons entitled to receive attorney-client communications, the privilege was rejected and the document was ordered produced.

1. Category No. 1 - Documents Ameriprise claims do not fall under the fiduciary exception because they concern the corporate activity of selling the record-keeping business

For the reasons described, Ameriprise shall produce to plaintiffs all of the documents itemized in the following Tabs listed in Category No. 1 of the In Camera Categorization Chart:

Tabs 1, 2, 22, 57, 58, 63 and 64: Ameriprise claimed that the documents in Tabs 1, 2, 22, 57, 58, 63 and 64 are emails, charts or other documents reflecting legal advice relating to draft corporate transaction documents withheld as not falling within the fiduciary exception because they concern corporate activities regarding the sale of the defined contribution recordkeeping business. In Camera Categorization Chart, pp. 1, 6, 16, 17; Struckhoff Decl., Ex. 1. Based on the content and context of these documents (emails, charts, draft corporate transaction documents, summary of financial proposal for corporate transaction), there is no evidence of legal advice within the documents or that legal advice was sought or given. The Court finds these documents deal with business advice and not legal matters, and therefore, are not privileged.

Tab 32: Ameriprise claimed that the emails reflected legal advice relating to draft corporate transaction documents concerning the contract process of the contribution recordkeeping business. In Camera Categorization Chart, p. 8; Struckhoff Decl., Ex. 1. The August 24, 2006 email chain related to draft corporate transaction documents that must be produced on the basis that no attorneys were involved in the communications, and based on the content and context of these emails, there is no evidence of legal advice within the emails or that legal advice was sought or given, and therefore, are not privileged. The balance of the emails dated August 23, 2006 and August 14, 2006, starting from the top of page 4 through page 8 of Tab 32 are privileged and shall not be produced.

Tab 33: Ameriprise claimed that the emails reflected legal advice relating to draft corporate transaction documents regarding the sale of the recordkeeping business. In Camera Categorization Chart, p. 9; Struckhoff Decl., Ex. 1. These documents are governed by the fiduciary exception, as they bear on the recordkeeping business and the revenue-sharing relationship with Wachovia.

Tab 34: Ameriprise claimed that the emails reflected legal advice relating to draft corporate transaction documents concerning transition of contracts for full-time clients in the sale of the recordkeeping business. In Camera Categorization Chart, p. 9; Struckhoff Decl., Ex. 1. The emails dated 9/18/06 at 7:19 PM, 2:50 PM and 1:10 PM must be produced. Based on the content and context of these emails related to draft corporate transaction documents, there is no evidence of legal advice within the documents or that legal advice was sought or given, and therefore, they are not privileged. The balance of the emails are privileged and shall not be produced.

Tab 38: Ameriprise claimed that the emails discussed legal advice related to draft term sheets regarding a letter agreement with Wachovia concerning the sale of the recordkeeping business. In Camera Categorization Chart, p. 10; Struckhoff Decl., Ex. 1. Email on 3/13/06 at 4:40 PM is privileged. The remainder of the emails shall be produced because based on the content and context of these documents, there is no evidence of legal advice within the emails or that legal advice was sought or given. The Court finds these emails deal with business advice and not legal matters, and therefore, are not privileged.

Tab 43: Ameriprise claimed that this document is a draft contract related to the sale of the recordkeeping business and that it contains legal edits and reflects legal advice. In Camera Categorization Chart, p. 13. No evidence was presented that attorney input was sought or received with regard to this document and there is no evidence of legal advice within the document. Therefore, it is not privileged.

Tab 62: In the In Camera Categorization Chart, Ameriprise claimed that this email was a draft corporate transaction document prepared for legal review. In Camera Categorization Chart, p. 16. In the privilege log, Ameriprise stated it was a request for legal advice regarding Schedules 3.01.G.6 - Closing Updates for Collective and Mutual Fund. Struckhoff Decl., Ex. 1. Based on the content and context of this email, there is no evidence of legal advice within it or that legal advice was sought or given. Therefore, it is not privileged.

Tabs 65 and 66: Ameriprise claimed that the emails relayed legal advice related to draft corporate contract schedules concern the sale of the recordkeeping business. In Camera Categorization Chart, p. 17; Struckhoff Decl., Ex. 1. Ameriprise did not provide the attachments referenced in these emails. Based on the content and context of the emails, there is no evidence of legal advice within the emails or that legal advice was sought or given. Therefore, the emails are not privileged.

Tab 70: Ameriprise claimed that these emails related to draft corporate transaction documents for the sale of the recordkeeping business. In Camera Categorization Chart; p. 18; Struckhoff Decl., Ex. 1. Based on the content and context of this email chain, there is no evidence of legal advice within the emails or that legal advice was sought or given. Therefore, the emails are not privileged.

Tab 76: In the In Camera Categorization Chart, Ameriprise claimed this document was a memo that provided legal advice to corporate executives regarding fund fees. In Camera Categorization Chart, p. 19. In the privilege log, Ameriprise claimed this document was dated August 3, 2010, and was from the Ameriprise Legal Department and related to revenue distributions related to the recordkeeping business. Struckhoff Decl., Ex. 1. The log identified the "sender/author" as Michael Lasch, a Director - Equity Product Management with Columbia Management. Struckhoff Decl., Ex. 1; Names and Positions from Those Challenged Documents List ("Names and Positions List"). The actual document is dated August 6, 2010, is directed to the Columbia Product Approval Committee, and is from three persons, only one of whom is listed on the Names and Positions List (Jim McKay). With the exception of the second sentence of the fourth paragraph (starting with the phrase "Legal has recommended") which shall be redacted, the balance of the document shall be produced on the basis that there is no evidence that attorneys were involved in the preparation of the balance of the document, the balance of the document deals with business advice and not legal matters, and is not privileged.

Tab 80: Ameriprise claimed these emails seek legal advice relating to a draft term sheet concerning the sale of the recordkeeping business. In Camera Categorization Chart, p. 19; Struckhoff Decl., Ex. 1. Based on the context and content of these emails, there is no evidence of legal advice within the emails or the memo that legal advice was sought or given. Rather, the edits to the document deal exclusively with formatting and therefore, are not privileged.

Tab 81: Ameriprise claimed that these emails sought legal advice regarding a draft public communication. In Camera Categorization Chart, p. 20; Struckhoff Decl., Ex. 1. While the emails and attached document were sent or copied to attorneys, among others, there is no evidence of legal advice within the emails and document or that legal advice was sought or given. Therefore, they are not privileged.

Tab 82: In the In Camera Categorization Chart, Ameriprise claimed this document was a memo seeking legal advice. In Camera Categorization Chart, p. 20. In the privilege log, Ameriprise claimed this document was prepared for review by counsel for talking points concerning the sale of the recordkeeping business. Struckhoff Decl., Ex. 1. No attorneys were identified the document, and there is no evidence of legal advice within the document or that legal advice was sought or given. Therefore, based on the content and context of the documents, the Court finds that the talking points deal with the business rational for the sale of the recordkeeping business.

Tab 83-E: Ameriprise claimed that the emails provided legal advice regarding draft schedules of the Asset Purchase Agreement related to the sale of the recordkeeping business. Struckhoff Decl., Ex. 1. While the privilege log states that the emails were sent from in-house attorney for Ameriprise Trust Company, Christy Lueck, to in-house attorney for Ameriprise Retirement Services, Sherilyn Beck,⁹ (Struckhoff Decl., Ex. 1), there is no evidence of legal advice within the emails or that legal advice was sought or given. Therefore, based on the content and context of the emails, the Court finds they deal with business advice and not legal matters and are not privileged.

9 Lueck was identified as "Vice-President, Compliance and Trust Product Services Attorney" for Ameriprise Trust Company; Beck was identified as Director, Business Unit Compliance Liaison - Attorney" of Ameriprise Retirement Services. Names and Positions List. Interestingly, when Ameriprise was resisting an earlier motion to compel by plaintiffs to search for obtain responsive ESI from Lueck, Ameriprise never informed the Court that she was a lawyer. See August 15, 2013 Order [Docket No. 182], pp. 23-24.

Tab 83-F: Ameriprise claimed this email chain was a request for legal advice related to draft schedules of the APA for the sale of the recordkeeping business. Struckhoff Decl., Ex. 1. Based on the content and context of the emails, there is no evidence of legal advice within them or that legal advice was sought or given. Therefore, they are not privileged.

Tab 83-G: Ameriprise claimed that this email chain requested and provided legal advice regarding compliance matters concerning the sale of the recordkeeping business. Struckhoff Decl., Ex. 4. Ameriprise shall produce the 7/26/05 2:39 PM and 9:13 PM emails. Ameriprise failed to provide sufficient information to the Court for it to determine whether the privilege applies to these emails because Ameriprise did not provide the attachment referenced in the 7/22/05 11:19 AM email. The balance of the emails are privileged.

Tab 83-N: Ameriprise claimed that this email chain reflected legal advice regarding the structure of the recordkeeping business. Struckhoff Decl., Ex. 4. There is no evidence of legal advice within 2/1/06 5:32 PM email or that legal advice was sought or given. Therefore, it is not privileged and shall be produced. The remainder of the email chain is privileged.

Tab 83-T: Ameriprise claimed that this email chain forwarded, discussed or provided legal advice from David Weiser, Sr. VP and General Counsel for Ameriprise Financial, regarding on antitrust filing concerning the sale of the recordkeeping business. Struckhoff Decl., Ex. 4. There is no evidence of legal advice within the 3/9/06 11:54 PM email or that legal advice was sought or given. Therefore, it is not privileged and shall be produced. The remainder of the emails are privileged.

Tab 83-U: Ameriprise claimed that this email requested legal advice regarding committee signatories concerning the sale of the recordkeeping business. Struckhoff Decl., Ex. 4. This document deals with the administration of the Plan, and therefore, is governed by the fiduciary exception.

Tab 83-Z: Ameriprise claimed that this email requested legal advice regarding communication materials related to the sale of the recordkeeping business. Struckhoff Decl., Ex. 4. Based on the content and context of this email, there is no evidence of legal advice within it or that legal advice was sought or given. Therefore, it is not privileged.

Tab 83-FF: Ameriprise claimed that this document provided legal advice regarding a draft asset purchase agreement for the recordkeeping business. Struckhoff Decl., Ex. 4. Based on the content and context of this document, there is no evidence of legal advice within it or that legal advice was sought or given. Therefore, the document is not privileged.

Tabs 83-HH and 83-JJ: Ameriprise claimed that these emails requested legal advice regarding the sale of the recordkeeping business and draft communications regarding the sale. Struckhoff Decl., Ex. 4. However, the emails deal with business communications, there is no evidence of legal advice within the documents or that legal advice was sought or given, and therefore, they are not privileged.

Tab 83-LL: Ameriprise claimed that this email requested legal advice regarding a draft communication concerning the sale of the recordkeeping business. Struckhoff Decl., Ex. 4. Ameriprise failed to provide sufficient information to the Court for it to determine whether the privilege applies because the document referenced by Lori Buck Brown was not attached. Consequently, based on the content and context of this email chain, there is no evidence of legal advice within the emails or that legal advice was sought or given. Therefore, the emails are not privileged.

Tab 83-NN: Ameriprise claimed that this document contained legal advice from Christy Lueck regarding the Service Agreement concerning funds for the 401(k) Plan and other retirement plans. Struckhoff Decl., Ex. 1. The document was the Service Agreement with no accompanying email. There is no evidence of legal advice within the document or that legal advice was sought or given, and therefore, it is not privileged.

2. Category No. 2 - Documents Ameriprise claims do not fall under the fiduciary exception because they concern threats of liability to the company, plan fiduciaries or other corporate officials

The majority of documents that the Court has ordered produced under this category were generated after the initiation of the present action, and in many cases, OMM, Ameriprise's litigation counsel, was included or copied on the communications at issue. However, this did not end the inquiry regarding whether the fiduciary exception to the attorney-client privilege rendered the documents discoverable, even where, as here, it is alleged that the malfeasance by the fiduciaries is ongoing. To the extent the Court could discern that the documents were related to advice regarding the liability of the fiduciaries as to the present litigation, the Court concluded that the documents were privileged. On the other hand, documents that purely addressed the administration of the Plan, even if OMM was listed on the communication, fell under the fiduciary exception. In this regard, the Court finds that a determination that all communications after the start of litigation or that involved litigation counsel should be presumed immune under the fiduciary exception, would serve to gut the fiduciary exception. See Cobell, 212 F.R.D. at 29. Such a finding would "subordinate the interests of beneficiaries to those of a trustee" and would offend the duty of loyalty that fiduciaries owe the beneficiaries. Id. ("whatever policy arguments can be made in favor of the trustee's need to secure legal advice, the placement of those interests above the beneficiary's need for disclosure is not sound. Clearly, the most heightened duty of loyalty is the one that the fiduciary owes his or her beneficiary.") (citing Varity Corp. v. Howe, 516 U.S. 489, 506 (1996)). "Furthermore, advice concerning legal compliance, alternatives, or strategy is part of the ordinary business of a trust and a trustee, and such legal communications and advice permit no claim of privilege. A trustee has no legitimate need to shield his actions from those whom he is obligated to serve." Id. (marks and citations omitted).

With this explanation in mind, and for the reasons described below, Ameriprise shall produce to plaintiffs all of the documents itemized in the following Tabs listed in Category No. 2 of the In Camera Categorization Chart:

Tab 89: Ameriprise claimed that these documents were draft plan materials sent to OMM for review for litigation materials. In Camera Categorization Chart, p. 23; Struckhoff Decl., Ex. 1. Ameriprise shall provide to plaintiffs the 6/29/12 email along with the document attached to the email. These documents are discoverable under the fiduciary exception, as the content pertains to Plan administration regardless of the fact that litigation in this matter had been initiated. The 7/05/2012 email shall remain privileged and shall not be produced.

Tab 90: Ameriprise claimed that this redacted portion of the email chain reflected a request for legal advice from OMM related to review of Plan materials for litigation purposes. In Camera Categorization Chart, p. 23; Struckhoff Decl., Ex. 1.¹⁰ However, these redacted emails deal with general administration, there is no evidence of legal advice in the emails or that legal advice was sought or given. Therefore, the redactions are not privileged and shall be produced.

10 The emails are redacted, however, the privilege log indicates it was withheld.

Tab 97: Ameriprise claimed that this redacted portion of the email chain reflected a request for legal advice from and providing information to OMM related to review of Plan materials for litigation purposes. In Camera Categorization Chart, p. 24; Struckhoff Decl., Ex. 1. While the email chain was generated after the initiation of the present action, and OMM was copied in the communications, the redaction dealt with the administration of the Plan and not the liability of the fiduciaries, and did not reveal litigation strategy. Therefore, the redaction falls under the fiduciary exception.

Tabs 114 and 115: Ameriprise claimed that these email chains reflected provision of legal advice from OMM related to review of Plan materials for litigation purposes. In Camera Categorization Chart, p. 26; Struckhoff Decl., Ex. 1. While the emails were generated after the initiation of the present action, and OMM was included in the communications, the emails deal with the administration of the Plan investments and not the liability of the fiduciaries, and do not reveal litigation strategy. Therefore, the emails fall under the fiduciary exception.

Tab 125: Ameriprise claimed that this email chain reflected legal advice from OMM related to review of Plan materials for litigation purposes. In Camera Categorization Chart, p. 28; Struckhoff Decl., Ex. 1. While the emails were generated after the initiation of the present action, they generally deal with the administration of the Plan as it relates to the Plan investments. That said, the Court finds that the last sentence of the second page of the document AMER_PRIV 002622 starting with the word "Upon" shall be redacted as falling under the attorney-client privilege as it reflects communication with litigation counsel that could reflect on advice regarding the present litigation. The remainder of the document shall be produced under the fiduciary exception.

Tab 126: Ameriprise claimed that this email reflected provision of legal advice from OMM related to review of Plan materials for litigation purposes. In Camera Categorization Chart, p. 28; Struckhoff Decl., Ex. 1. While the email was generated after the initiation of the present action, and reflects communications from OMM, the document deals with the administration of the Plan as it relates to the investments, and not the liability of the fiduciaries, and does not reveal litigation strategy. Therefore, the email falls under the fiduciary exception.

Tab 131: Ameriprise claimed that the redacted portion of this email reflected a request for legal advice from OMM related to review of Plan materials for litigation purposes. In Camera Categorization Chart, p. 29; Struckhoff Decl., Ex. 1. The redactions do not reflect that legal advice was sought or given. Therefore, they are not privileged and shall be produced.

Tabs 132 and 133: Ameriprise claimed that Tab 132 was comprised of draft Plan materials sent to outside litigation counsel for review for litigation purposes and that Tab 133 reflects legal advice from in-house and inside litigation counsel for litigation purposes regarding a service provider contract. In Camera Categorization Chart, p. 29; Struckhoff Decl., Ex. 1. Tab 132 is comprised of an email chain and an attachment. Tab 133 is the same email chain contained in Tab 132 without the attachment. The emails reflect providing fiduciaries, through Atanasio and Sabin, with business advice concerning the administration of the Plan, and as such, fall under the fiduciary exception. The attachment to the email chain in Tab 132 does not evidence any legal advice sought or given. Therefore, the attachment is not privileged and shall be produced.

Tab 139: Ameriprise claimed the document was a memo prepared at the direction of counsel and directed to the Ameriprise Legal Department regarding the structure and governance of the 401(k) Plan and in connection with the Krueger litigation. In Camera Categorization Chart, p. 30; Struckhoff Decl., Ex. 1.¹¹ No attorneys were referenced the email attached to the memo, the memo deals with the administration of the Plan and not the liability of the fiduciaries, and does not reveal any litigation strategy. Therefore, the email and the memo fall under the fiduciary exception.

11 The privilege log stated the documents were withheld on the basis of attorney work product. The Court could discern no grounds for withholding the documents on this basis.

Tab 141: Ameriprise claimed that the redacted portion of the email reflected a request for legal advice from OMM and in-house counsel related to review of Plan materials for litigation purposes. In Camera Categorization Chart, p. 30; Struckhoff Decl., Ex. 1. While the email was generated after the initiation of the present action, and OMM was copied on the email, the redaction deals with the administration of the Plan and not the liability of the fiduciaries, and does not reveal litigation strategy. Therefore, the redaction falls under the fiduciary exception.

Tab 160: In the In Camera Categorization Chart, Ameriprise claimed that the emails reflected legal advice from OMM and in-house counsel related to review of Plan materials for litigation purposes. In Camera Categorization Chart, p. 32. In the privilege log, Ameriprise stated this email dated May 23, 2013 from Atanasio to Heather Melloh, Ameriprise VP and Chief Counsel and OMM lawyers dealt with the review of the 401(k) Plan materials in connection with litigation. Struckhoff Decl., Ex. 1; Names and Positions List. Based on the context and content of these redacted emails, there is no evidence of legal advice in the emails, or that legal advice was sought or given. Therefore, they are not privileged, and shall be produced.

Tab 162: Ameriprise claimed that the email chain reflected communications providing legal advice related to the KIC committee selection process. In Camera Categorization Chart, p. 33; Struckhoff Decl., Ex. 1. The emails were generated after the initiation of the present action, however, they deal with the administration of the Plan as it relates to appointment of fiduciaries to the KIC and not the liability of the fiduciaries, and do not reveal litigation strategy. Therefore, the emails fall under the fiduciary exception.

Tab 163: Ameriprise claimed this email provided information to in-house counsel for litigation purposes. In Camera Categorization Chart, p. 33; Struckhoff Decl., Ex. 1. Based on the content and context of this email, there is no evidence of legal advice within it or that legal advice was sought or given. Therefore, it is not privileged.

Tab 164: Ameriprise claimed that the redacted portion of these emails to employees request and provide legal advice related to a review of an IRS notice for litigation purposes. In Camera Categorization Chart, p. 33; Struckhoff Decl., Ex. 1. The redactions at issue relate to a regulatory requirement concerning required communications to employees, deal with the administration of the Plan and not the liability of the fiduciaries, and do not reveal litigation strategy. Therefore, these redacted emails fall under the fiduciary exception.

Tabs 166 and 167: In the In Camera Categorization Chart, Ameriprise claimed that these documents were emails requesting legal advice from OMM and in-house counsel related to Plan materials for litigation purposes. In Camera Categorization Chart, p. 33. In the privilege log, Ameriprise stated these documents were emails regarding draft KIC materials. Struckhoff Decl., Ex. 1. These emails deal with an upcoming KIC meeting and the administration of the Plan regarding investments, and not the liability of fiduciaries, and do not reveal litigation strategy. Therefore, they fall under the fiduciary exception.

Tab 170: In the In Camera Categorization Chart, Ameriprise claimed the email reflected advice from OMM for litigation purposes regarding KIC materials. In Camera Categorization Chart, p. 34. In the privilege log, Ameriprise stated the email was regarding KIC decision items and dealt with the threat of litigation. Struckhoff Decl., Ex. 1. While the email was generated after the initiation of the present action, it deals with the selection of investments and therefore, the administration of the Plan. That said, the Court finds that the last paragraph of the 1/23/12 email starting with the word "Upon" shall be redacted as falling under the attorney-client privilege, as it reflects communication with litigation counsel regarding the present litigation. The remainder of the email shall be produced under the fiduciary exception.

Tabs 175, 176, 177 and 178: In the In Camera Categorization Chart, Ameriprise claimed that Tab 175 was a draft communication regarding a restorative payment and reflecting comments from in-house counsel provided for litigation purposes. In Camera Categorization Chart, p. 34. In the privilege log, Ameriprise claimed the documents reflected legal advice dealing with the review of 401(k) Plan materials in relation to present litigation. Struckhoff Decl., Ex. 1. As to Tab 176, Ameriprise claimed that this email reflected legal advice from in-house counsel regarding restorative payments for litigation purposes. In Camera Categorization Chart, p. 35; Struckhoff Decl., Ex. 1. Ameriprise claimed that Tab 177 was a draft communication regarding a restorative payment and reflecting comments from in-house counsel provided for litigation purposes. Id. Ameriprise claimed that Tab 178 was an email from in-house litigation counsel seeking legal advice for litigation purposes regarding a restorative payment and dealt with the review of 401(k) Plan materials in relation to present litigation. Id. Tab 175 is an email from in-house counsel to outside and in-house counsel with an attachment. Tabs 176 and 178 are emails between in-house counsel that attached a version of the attachment found in Tab 175. Tab 177 is a version of the attachment, which is found at Tab 175. The Court finds these communications deal with administration of the Plan as it relates to Plan investments and not the liability of fiduciaries, and do not reveal litigation strategy. Therefore, the documents under these tabs fall under the fiduciary exception.

Tab 179: Ameriprise claimed that the redacted portions of the emails and attached document provided legal advice from OMM related to Plan materials for litigation purposes. In Camera Categorization Chart, p. 35; Struckhoff Decl., Ex. 1.¹² These documents deal with a services agreement with a third party regarding services to be provided to the fiduciaries as it relates to their fiduciary duties, and as such, deal with the administration of the Plan. They do not pertain to the legal liability of the fiduciaries, and do not reveal litigation strategy. Therefore, the documents fall under the fiduciary exception, and shall be produced in their entirety.

12 The email chain is redacted, however, the privilege log indicates that it was withheld.

Tab 183: Ameriprise claimed that these emails requested and provided legal advice from in-house counsel regarding the review of Plan materials for litigation purposes. In Camera Categorization Chart, p. 36; Struckhoff Decl., Ex. 1. The privilege log also states the emails are regarding "Small Cap Value Search." Struckhoff Decl., Ex. 1. These emails were generated after the initiation of the present action, however, they deal with the administration of the Plan as it relates to revenue-sharing with funds included in the Plan, appointment of fiduciaries, and not the liability of the fiduciaries. The emails do not reveal litigation strategy. Therefore, the emails fall under the fiduciary exception.

Tab 186: Ameriprise claimed that this email chain requested legal advice from in-house litigation counsel regarding the review of meeting materials in connection with litigation. In Camera Categorization Chart, p. 36; Struckhoff Decl., Ex. 1. The privilege log also states the document is regarding the "KIC 111109 Agenda." Struckhoff Decl., Ex. 1. The Agenda was not attached. Based on the content and context of the emails, there is no evidence of legal advice within them or that legal advice was sought or given. Therefore, they are not privileged.

Tab 187 is made up of many single documents. According to the In Camera Categorization Chart, Ameriprise stated that the documents involved litigation. The following documents in Tab 187 shall be produced to plaintiffs:

Tab 187-A: Ameriprise claimed that the document provided legal advice from Kurt Johansen, VP and Group Counsel for Ameriprise Financial, regarding review of Plan materials concerning the Krueger litigation. Struckhoff Decl., Ex. 1; Name and Position List. This document reflects comments made by Ameriprise inside counsel to unidentified individuals regarding a statement that relates to the administration of the Plan, makes no reference to liability of the fiduciaries, and does not reveal litigation strategy. Further, the comments do not appear to be related to legal advice provided by in-house counsel, but in any event, the document falls under the fiduciary exception.

Tab 187-G: Ameriprise claimed the document was a request for legal advice regarding EBAC documents for litigation purposes. Struckhoff Decl., Ex. 1. The document reflects advice given to the Plan fiduciaries regarding the administration of the Plan, does not refer to the liability of the fiduciaries, and does not reveal litigation strategy. The document falls under the fiduciary exception.

Tab 187-J: Ameriprise claimed the redacted portion of the email chain was a request for legal advice from OMM and in-house counsel regarding the review of Plan materials for litigation purposes and that it dealt with the Wells Fargo contract renegotiation. Struckhoff Decl., Ex. 1. The first full paragraph in the redacted portion of the email chain deals with the administration of the Plan, does not refer to the liability of the fiduciaries, and does not reveal litigation strategy. Therefore, this part of the redacted email falls under the fiduciary exception and shall be produced. The second paragraph of the redacted portion of the email is privileged and shall remain redacted.

Tab 187-K: Ameriprise claimed the email provided legal advice from OMM and in-house counsel regarding the review of Plan materials in connection with the litigation. Struckhoff Decl., Ex. 1. The email referenced a document but it was not attached. Based on the content and context of the email, there is no evidence of legal advice within it or that legal advice was sought or given. Therefore, it is not privileged.

Tab 187-L: Ameriprise claimed that the subject of this email is "Action required: Complete the 2102 Regulatory Disclosure by Feb.10" and that it is a communication between Ameriprise in-house counsel regarding reporting on litigation. Struckhoff Decl., Ex. 1. This email chain reflects advice given to the Plan fiduciaries regarding the administration of the Plan, does not refer to the liability of the fiduciaries, and does not reveal litigation strategy. Therefore, the document falls under the fiduciary exception.

Tab 187-M: Ameriprise claimed the email provided legal advice from in-house counsel regarding the Plan materials in connection with the litigation. Struckhoff Decl., Ex. 1. The email referenced a document but it was not attached. Based on the content and context of the email, there is no evidence of legal advice within it or that legal advice was sought or given. Therefore, it is not privileged.

Tab 187-N: Ameriprise claimed the document reflected legal advice from in-house counsel regarding the Plan materials in connection with the litigation. Struckhoff Decl., Ex. 1. This document reflects edits to the document to be provided to the KIC regarding investments in the Plan. This document deals the administration of the Plan, does not refer to the liability of the fiduciaries, and does not reveal litigation strategy. Therefore, the document falls under the fiduciary exception.

Tab 187-O: Ameriprise claimed the email requested and provided legal advice from OMM and in-house counsel regarding the Plan materials in connection with the litigation and the subject line of the email was "Fw: Draft EBAC minutes." Struckhoff Decl., Ex. 1. The email referenced a document but it was not attached. Based on the content and context of the email, there is no evidence of legal advice within it or that legal advice was sought or given. Therefore, it is not privileged.

Tabs 187-Z and AA: Ameriprise claimed the email and document in these tabs reflected legal advice from in-house counsel regarding the Plan materials in connection with the litigation. Struckhoff Decl., Ex. 1. Both of these documents deal with information provided to the EBAC regarding Plan fees, relate to the administration of the Plan, do not refer to the liability of the fiduciaries, and do not reveal litigation strategy. Therefore, the documents fall under the fiduciary exception.

Tab 187-BB: Ameriprise claimed the email, which stated in the "subject line" that it was forwarding "a KIC document regarding alternative investment option discussions," reflected legal advice from in-house counsel regarding the Plan materials in connection with the litigation. Struckhoff Decl., Ex. 1. The email deals with Plan administration by Plan fiduciaries in the KIC, does not refer to the liability of the fiduciaries, and does not reveal litigation strategy. Therefore, it falls under the fiduciary exception.

Tabs 187-CC and 187-DD: Ameriprise claimed these emails, which stated in the subject line that they were forwarding "a KIC document regarding alternative investment option discussions," reflected legal advice from in-house counsel regarding the Plan materials in connection with the litigation. Struckhoff Decl., Ex. 1. Based on the content and context of these emails, there is no evidence of legal advice within the emails or that legal advice was sought or given. Therefore, they are not privileged.

Tab 187-EE: Ameriprise claimed the email, which stated in the subject line that it was forwarding "a KIC document regarding alternative investment option discussions," reflected legal advice from in-house counsel regarding the Plan materials in connection with the litigation. Struckhoff Decl., Ex. 1. This email pertains to the appointment of fiduciaries, and as such, deals with Plan administration. The email does not refer to liability of the fiduciaries, and does not reveal litigation strategy. Therefore, it falls under the fiduciary exception.

Tabs 187-FF and GG: Ameriprise claimed the documents reflected legal advice from in-house counsel regarding the Plan materials in connection with the litigation. Struckhoff Decl., Ex. 1. These documents deal with KIC's discussion of the investments and fees attributable to the Plan. These documents pertain to Plan administration, do not refer to the potential liability of the fiduciaries, and do not reveal litigation strategy. Therefore, they fall under the fiduciary exception.

Tab 187-II: Ameriprise claimed the email requested legal advice from in-house counsel regarding review of Plan materials in connection with the litigation. Struckhoff Decl., Ex. 1. This email deals with communications to employee beneficiaries regarding the Plan. It deals with Plan administration, does not refer to liability of the fiduciaries, and does not reveal litigation strategy. Therefore, it falls under the fiduciary exception.

Tab 187-LL: Ameriprise claimed the email and attachment regarding 401(k) Fee Policy, provided legal advice regarding establishment of Plan. Struckhoff Decl., Ex. 1. These documents deal with guidance regarding Plan fees. These documents pertain to the administration of the Plan, do not refer to liability of the fiduciaries, and do not reveal litigation strategy. Therefore, they fall under the fiduciary exception.

Tab 187-MM: Ameriprise claimed the email and document provided or reflected legal advice from in-house counsel regarding review of Plan materials in connection with the litigation. Struckhoff Decl., Ex. 1. These reflect recommended changes to KIC minutes by in-house counsel. While the communication was generated after the initiation of the present litigation, given that the KIC minutes deal with the administration of the Plan, along with the EBAC's input regarding Plan fees, the Court finds that the documents pertain to the administration of the Plan. In addition, they do not refer to the liability of the fiduciaries, and do not reveal litigation strategy. Therefore, they fall under the fiduciary exception.

Tabs 187-OO, PP, QQ: Ameriprise claimed the emails provided legal advice from in-house counsel or OMM regarding review of Plan materials in connection with the litigation. Struckhoff Decl., Ex. 1. The emails referred to a document but it was not attached. Based on the content and context of the emails, there is no evidence of legal advice within them or that legal advice was sought or given. Therefore, they are not privileged.

Tab 187-SS: Ameriprise claimed the email forwarding the "Agenda for Special KIC meeting on 7/8" requested legal advice from in-house counsel regarding review of Plan materials in connection with the litigation. Struckhoff Decl., Ex. 1. The document lists topics to be discussed at a KIC meeting. The topics listed dealt with the administration of the Plan, did not refer to the liability of the fiduciaries, and did not reveal litigation strategy. Therefore, the email falls under the fiduciary exception.

Tab 187-VV: Ameriprise claimed that the redacted email "RE: DRAFT - Response Requested: Invitation to join 401(k) Investment Committee" provides legal advice from OMM and in-house counsel regarding review of Plan-related communication for litigation purposes. Struckhoff Decl., Ex. 1. The redacted part of the email deals with the appointment of Plan committee members. The redacted email dealt with the administration of the Plan, did not refer to the liability of the fiduciaries, and did not reveal litigation strategy. Therefore, it falls under the fiduciary exception and shall be produced.

3. Category No. 3 - Other documents Ameriprise claims do not fall under the fiduciary exception because the documents go toward settlor functions

The Court's decision as to this category of documents focused on whether the withheld documents dealt with the creation or amendment of the Plan. If the documents were otherwise privileged and dealt with such settlor functions, the Court concluded that they were protected from disclosure. On the other hand, to the extent that the documents dealt with the implementation of the Plan or addressed other administrative functions of the fiduciaries related to the Plan, the Court concluded that the documents were discoverable under the fiduciary exception.

For the reasons described below, Ameriprise shall produce to plaintiffs all of the documents itemized in the following Tabs listed in Category No. 3 of the In Camera Categorization Chart:

Tab 193: Ameriprise claimed that the email reflected legal advice from in-house counsel relating to the structure of the fiduciary committees (i.e., best practices for structuring the 401(k) Plan). In Camera Categorization Chart, p. 39; Struckhoff Decl., Ex. 1. This document does not reflect settlor functions, but rather pertains to the selection of fiduciaries. Therefore, it falls under the fiduciary exception.

Tab 221: In the In Camera Categorization Chart, Ameriprise claimed that the redacted portions of the document set out legal task lists containing requests for legal advice. In Camera Categorization Chart, p. 44. In the privilege log, Ameriprise claimed that the document was a request for legal advice regarding strategic initiatives related to the establishment of the 401(k) Plan. Struckhoff Decl., Ex. 1. The redactions on pages 1, 4 and the first redaction on page 6 (the first redacted row) of the charts do not relate to settlor functions, but rather deal with the administration of the Plan as it relates to creating guides. Moreover, as to pages 4 and 6 (the first redacted row), the redactions contain some of the same information as is contained in the unredacted cells and is thus waived. The redactions on pages 1, 4 and the first redaction on page 6 (the first redacted row) of the charts shall be produced. However, the redactions on page 5 and the second redaction on page 6 (second redacted row) pertain to settlor functions and are privileged.

Tab 229-G: Ameriprise claimed that the email referenced "Meeting for Next Week - Governance - Employee Benefits & Executive Compensation" and provided legal advice regarding the establishment of the 401(k) Plan. Struckhoff Decl., Ex. 1. The email dated 8/12/05 at 5:33 PM does not reflect any communication of legal advice, and shall be produced. The remainder of the email remains privileged as legal advice relating to settlor functions.

Tab 229-K: Ameriprise claimed the email provided legal advice from the law firm of Cleary Gottleib regarding the structure of the 401(k) Plan. Struckhoff Decl., Ex. 1. The content of the email involving Plan counsel Atanasio, deals with the investments in the Plan, and therefore, falls under the fiduciary exception.

Tab 229-R: Ameriprise claimed that the email requested legal advice regarding the draft report of the sale of the recordkeeping business. Struckhoff Decl., Ex. 1. The draft report was not attached. There is nothing on the face of this email indicating that it deals with the creation of the Plan or its amendment. Further, based on the content and context of the email, there is no evidence of legal advice within the email or that legal advice was sought or given. Therefore, it is not privileged.

Tab 229-S: Ameriprise claims this email forwards or discusses legal advice regarding "RFP Questions and proposed answers" and concerns the establishment of the Plan. Struckhoff Decl., Ex. 1. This email requests the recipient Kurt Johansen, VP and Group Counsel at Ameriprise Financial, to review an attachment that was not provided to the Court. Lacking the attachment, the Court is unable to determine whether the email relates to settlor activities, rather than the administration of the Plan. Lacking such information, the Court has no ability to determine whether the email was properly withheld. Therefore, it shall be produced.

Tab 229-U: Ameriprise claimed that this email and attachment is a request for information on which to base legal advice regarding "draft 401(k) Plan Stable Value Fund Investment Guidelines." Struckhoff Decl., Ex. 1. This document deals with in-house counsel forwarding copies of the guidelines dealing with the Plan to Jim McKay, Director of Stable Capital Management, at Ameriprise Trust Company. Neither the guidelines nor the email from counsel provides legal advice. The attorney only sought input from a non-lawyer regarding the guidelines. As such, this Court finds that the attorney-client privilege does not apply to these documents. However, even if the documents are privileged, they do not pertain to a settlor function. These documents deal with the communications to Plan participants, which is matter of a plan administration, thereby making the documents discoverable under the fiduciary exception.

4. Other documents Ameriprise claims do not fall under the fiduciary exception because the documents were not directed toward the fiduciaries or the administration of the Plan

Ameriprise argued that the documents in this category fell under the attorney-client privilege and are not subject to the fiduciary exception because the legal advice was not provided to the Plan fiduciaries or did not deal with the administration of the Plan. However, to the extent that the information was provided to individuals who advised, provided input to or were consulted by the Plan fiduciaries, the Court concluded that the information in such documents is governed by the fiduciary exception. In other words, the Court finds that such information cannot be seen as being received in a vacuum, and instead finds that such information in the possession of those who advise, provide input or consult with Plan fiduciaries regarding the administration of the trust, is information which bears on the duties of the fiduciaries. On the other hand, to the extent that the underlying documents did not deal with the administration of the Plan or were not received by the Plan fiduciaries or those persons who advised, provided input to or were consulted by the Plan fiduciaries, the Court upheld the privilege.

For the reasons described below, Ameriprise shall produce to plaintiffs all of the documents itemized in the following Tabs listed in Category No. 4 of the In Camera Categorization Chart:

Tab 234: In the In Camera Categorization Chart, Ameriprise claimed that the email contained legal advice given to Ameriprise's investment product business related to 401(k) plans generally and was not used by fiduciaries in administering the Ameriprise Plan. In Camera Categorization Chart, p. 47. In the privilege log, Ameriprise claimed that the email reflected material compiled at the request of legal counsel to obtain legal advice regarding the Deferred Compensation Plan. Struckhoff Decl., Ex. 1. While the email is from in-house counsel, Atanasio, based on the content and context of the email, the Court concludes that it reflects business matters relating to the administration of the Ameriprise Deferred Compensation Plan. Therefore, it is not privileged.

Tab 240: In the In Camera Categorization Chart, Ameriprise claimed that the redacted portions of these emails reflect "legal related [sic] to the payment of management fees for the Plan, not for fiduciaries." In Camera Categorization Chart, p. 48. In the privilege log, Ameriprise claimed that the emails forwarded, discussed or reflected legal advice regarding "General Counsel Organization's views on administrative fees in 401(k) Plans for presentation to non-fiduciary." Struckhoff Decl., Ex. 1. The author of the redacted emails was Marty Solhaug, VP-Executive and International Compensation, a defendant in this case and a member of the EBAC and the KIC. See Names and Positions List; Answer to Amended Complaint [Docket No. 72], ¶ 23; Declaration of Mark Boyko in Support of Plaintiff's Motion to Compel [Docket No. 327], Ex. 2 (September 29, 2005 Thomas Pavey email listing KIC Members). The recipients of the emails were not attorneys. Struckhoff Decl., Ex. 1. The legal advice communicated within the emails pertained to the Plan and was from Plan counsel, Atanasio. Accordingly, the Court concludes that the information in these emails was considered by and bore on the conduct of the Plan fiduciaries. Further, the content of the emails deals with the administration fees relating to the Plan, and thus, involves administration of the Plan. These redacted emails fall under the fiduciary exception.

Tabs 241, 242 and 243: Ameriprise claimed that Tab 241 was a legal memo discussing the structure of the Plan prepared at the direction of legal counsel in anticipation of litigation and not used by fiduciaries, and Tabs 242 and 243 were emails transmitting the memo. In Camera Categorization Chart, pp. 48-49; Struckhoff Decl., Ex. 1. Tab 241 is described by Ameriprise as a draft summary of the 401(k) Plan in connection with the threat of litigation not for fiduciaries.¹³ Struckhoff Decl., Ex. 1. Tab 242 is an email from Brent Sabin to another Ameriprise executive attaching the memo and stating that he had discussions with Plan counsel, Atanasio. Sabin served as a non-fiduciary delegate to the KIC and EBAC and served as the secretary of the EBAC. See Answer to Amended Complaint, ¶ 30. Tab 243 is the same email in Tab 242 and includes a copy of the attachment found in Tab 241. The substance of the draft memo relates to the duties of the Plan fiduciaries regarding investment options. It deals with the fiduciaries' administration of the Plan. This information is at the heart of the fiduciaries' administrative duties under the Plan. Although the document touches upon threat of litigation, the content discusses only a generalized fear and any steps to respond to this fear only related to the performance of the duties as fiduciaries in accordance with law, which benefits the Plan beneficiaries. The information in these documents is covered by the fiduciary exception. As for Ameriprise's assertion that the memorandum was not meant for the Plan fiduciaries, in-house counsel for the Plan fiduciaries, Atanasio, and Sabin, an assistant to the fiduciary committees to the Plan, were at the center of these communications. For all of these reasons, Ameriprise shall produce the documents in Tabs 241, 242, and 243, as they fall under the fiduciary exception.

13 While the privilege log states that Tab 241 was withheld in its entirety, based on this Court's review of the document, it appears to have been produced to plaintiffs with redactions to two paragraphs.

Tab 246: Ameriprise claimed that these emails between Atanasio and Sabin provided legal advice related to a presentation discussing the re-design of the 401(k) Plan for the Executive Leadership Team and was not used for the fiduciaries. In Camera Categorization Chart, p. 50; Struckhoff Decl., Ex. 1. While the retirement plan re-design materials may have been meant for the Executive Leadership Team, the Court was given no information as to the identity of the members of the team. Regardless, because these communications were between Atanasio and Sabin, advisors to the Plan fiduciaries, and the information communicated relates to the administration of the Plan, the emails fall under the fiduciary exception.

Tab 249: Ameriprise claimed that the redacted portions of this email chain between Ted Truscott, the CEO, Global Asset Management for Ameriprise Financial, and Anne Holloran, Senior Institutional Relationship Manager - Team Leader for Columbia, reflected legal advice from Christopher Petersen, VP and Chief Counsel - Asset Management, relating to fund pricing for use in the general investment product business and not shared with fiduciaries. In Camera Categorization Chart; p. 50; Struckhoff Decl., Ex. 1; Names and Positions List. The emails do not appear to have been provided to Plan fiduciaries, however, they were sent to Truscott, who provided input to Plan fiduciaries. This Court has already determined that Truscott had sufficient involvement in the selection of Plan investment options by providing his opinions and input regarding investment options to the KIC members. See October 28, 2013 Order [Docket No. 225], pp. 2-3; February 24, 2014 Order [Docket No. 313], pp. 9-10. Additionally, the redacted information pertains to business advice related to fund expenses. Thus, the redactions are not protected by the attorney-client privilege, and even if they were, they fall under the fiduciary exception. The email chain shall be produced in an unredacted format.

Tab 251: Ameriprise claimed that this email from Atanasio to Solhaug, Sabin and Joyce Charles, Manager Legal Affairs General Counsel for Ameriprise Financial, discussed 401(k)-related cases and court decisions affecting the liability of the company running the Plan and was not shared with Plan fiduciaries. In Camera Categorization Chart, p. 50; Struckhoff Decl., Ex. 1; Names and Positions List. Atanasio is Plan counsel, Solhaug sat on the KIC, and Sabin advised the Plan fiduciary committees. The advice at issue occurred before the threat of litigation, did not address any specific threat of litigation against Ameriprise, and was a communication to a fiduciary (Solhaug) and individuals serving the Plan fiduciaries on the best way to administer the Plan in accordance with the law, which ultimately benefits the beneficiaries. The documents fall under the fiduciary exception.

Tabs 258 and 260: Ameriprise claimed that these documents discussed ongoing 401(k)-related cases and court decisions affecting the liability of the company running the Plan and was not shared with Plan fiduciaries. In Camera Categorization Chart, p. 51; Struckhoff Decl., Ex. 1. Both of these documents concern legal advice regarding recent lawsuits, not related to Ameriprise, against plan fiduciaries as it relates to fees and investments. These documents were generated well before the litigation in the present case, and did not address any specific threat of litigation against Ameriprise. While the documents may not have been provided directly to Plan fiduciaries, they were both provided to counsel for the Plan fiduciaries—Atanasio.¹⁴ Because the information was provided to Plan counsel, the Court concludes that the information contained in the documents assisted the fiduciaries concerning on the best way to administer the Plan, in accordance with the law. As such, the documents fall under the fiduciary exception.

14 In the case of Tab 258, while the document was not sent to Atanasio, she was the custodian from whom it was obtained. Struckhoff Decl., Ex. 1.

Tab 262: Ameriprise claimed that this document was a legal memo from Atanasio providing legal advice provided to the Board of Directors (presumably to the Ameriprise Board, but it is unclear) regarding the structure of the Plan, and was not for fiduciaries. In Camera Categorization Chart, p. 51; Struckhoff Decl., Ex. 1. The documents set forth the areas of authority of various entities within Ameriprise as it relates to Ameriprise retirement plans, including the Plan at issue. The content and context of the documents do not appear to convey legal advice to the Board of Directors, but only notifies them of responsibilities as to the Ameriprise retirement plans. Given that Ameriprise has failed to provide the Court with sufficient evidence to determine whether the attorney-client privilege applies to the documents, the documents shall be produced.

Tab 263: Ameriprise claims the documents include a legal memo from the Legal Department providing legal advice related to amendments to the Plan regarding alternative structures, and they were not for fiduciaries. In Camera Categorization Chart, p. 51; Struckhoff Decl., Ex. 1. The email that is part of this tab, and attaches the memo, is from Solhaug to Ameriprise CEO, James Cracchiolo. Sabin was copied on the email. There were no attorneys listed on the email. As such, the contents of the mail are not privileged and shall be produced. As to the attached memo, there is no indication as to who drafted this document. Because the Court cannot discern who drafted the memo, the Court concludes that Ameriprise has not met its burden with regard to establishing that it is privileged.¹⁵ Ameriprise shall produce the documents to plaintiffs.

15 The Court also notes that even assuming that an attorney drafted the document, except for page 5 of the memo, there is no legal advice provided in the memo. --------

Tab 267 is made up of many single documents. According to the In Camera Categorization Chart, none of these documents should be produced because they were not shared with Plan fiduciaries. The Court concluded the following documents shall be produced to plaintiffs:

Tab 267-D: Ameriprise claimed that the emails were from Craig Wallenta, VP-Risk Mitigation External Reporting Controllership. Struckhoff Decl., Ex. 1. Ameriprise shall produce the January 26, 2006 10:02 AM, 12:52 PM and 3:27 PM emails because attorneys were not involved in the communications and because they deal with business matters. The January 30, 2006 email relates to implementation of the Plan, as opposed to settlor activities. While Ameriprise claims that the information was not for Plan fiduciaries, Truscott was copied on the email. Given that Truscott provided input to the KIC members regarding investment choices, and he received the information in the January 30, 2006 email, the Court finds that this email falls under the fiduciary exception.

Tab 267-K: Ameriprise claimed this redacted document was from the Ameriprise Legal Department and provided legal advice regarding the 401(k) litigation. Struckhoff Decl., Ex. 1. This document is entitled "Current Initiatives Affecting Financial 401(k) Plan." The document was generated by Atanasio and provided to Sabin and Solhaug. Ameriprise is withholding the redacted portion of this document on the basis it was not shared with Plan fiduciaries. However, Ameriprise did not redact legal advice regarding recent regulatory and proposed legislation on the Plan. Ameriprise has provided this Court with no explanation for its decision to cherry-pick some legal advice concerning the Plan while withholding other advice. In any event, because the redacted information was provided by Atanasio (Plan counsel), Solhaug (a member of the KIC) and Sabin (who advised the fiduciary committees of the Plan), and the information assists the fiduciaries regarding the best way to administer the Plan in accordance with the law, this redacted document falls under the fiduciary exception.

Tab 267-N: Ameriprise claimed the email chain and attached document was prepared for attorney review on the use of target funds. Struckhoff Decl., Ex. 1. The initial email in this chain was from Sabin to a group of America executives, including Michele Rudlong who was involved in the day-to-day administration of the Plan and served as a liaison for the fiduciary committees. See February 24, 2014 Order [Docket No. 313], pp. 2-3. In addition, the email was copied to Plan counsel, Atanasio. The only other email involved Atanasio forwarding the attachment from Sabin. The email chain and attached document dealt with the selection of funds for the Plan, which pertains to the administration of the Plan. Further, because Atanasio, Sabin and Rudlong advised the Plan fiduciaries, the information in these documents bears on duties of the fiduciaries regarding the best way to administer the Plan, in accordance with the law. Therefore, the documents fall under the fiduciary exception.

C. Inadvertent Disclosures Under Rule 502(b)

This Court concludes that the inadvertent disclosure by Ameriprise of 1471 documents to plaintiffs does not constitute waiver of the attorney-client privilege. First, the Court makes this finding on the basis that there is no dispute that the disclosure of the privileged documents was inadvertent. See Fed. R. Evd. 502(b); see also Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., No. 96 Civ. 7590, 1997 WL 736726, at *6 (S.D.N.Y. Nov. 26, 1997) ("Courts have routinely found that where a large number of documents are involved, there is more likely to be an inadvertent disclosure rather than a knowing waiver.") (marks and citation omitted).

Second, the Court makes this finding because out of the 455,000 documents produced, only 1471 were inadvertently produced, which only comprises 0.3% of the total production, regardless of whether some of the ESI turned out to be communications involving OMM. "Inadvertent production of a relatively low proportion of documents in a large production under a short timetable due to mistake should be and usually is excused." Datel Holdings Ltd. v. Microsoft Corp., NO. C-09-05535 EDL, 2011 WL 866993, at *4 (N.D. Cal. March 11, 2011) (citing Kandel v. Brother Int'l Corp., 683 F. Supp.2d 1076, 1085-86 (C.D. Cal. 2010)). Based on the record before this Court, it cannot be said that the procedures used by Ameriprise to ensure that privileged documents were not produced were lacking where the inadvertently produced documents made up such a small percentage of the overall documents produced to plaintiffs. See Lazar v. Mauney, 192 F.R.D. 324, 330 (N.D. Ga. 2000) (finding no waiver where 3 privileged documents out of 1000 documents produced (0.3%) were inadvertently produced, as mistakes of this type are likely occur in cases with voluminous discovery).

Third, there is no dispute that Ameriprise promptly clawed back the inadvertently produced privileged documents once it became aware of their production.

Finally, the Court finds that the interests of fairness and justice weigh in favor of finding no waiver. There is no harm to plaintiffs resulting from restoring the privileged status of these documents, as shortly after learning about their production, Ameriprise clawed back the privileged documents. As such, plaintiffs cannot reasonably argue that they changed their position in reliance upon their continued availability. See United States ex rel. Bagley v. TRW, Inc., 204 F.R.D. 170, 182 (C.D. Cal. 2001) (finding that a party to whom privileged documents are inadvertently produced has no inherent fairness interest in keeping them, unless the producing party waited so long to address the problem after having been informed of it, that the receiving party reasonably changed its position in reliance upon their continued availability, especially where the receiving party knew that the documents involved opposing counsel's communications). In any event, there was nothing to preclude plaintiffs from challenging the privileged status of these documents even if the Court found no waiver.

Given the importance of the attorney-client privilege, the low percentage of the inadvertently produced documents, and the fact that the documents were promptly clawed back, the Court concludes that the waiver is not appropriate in the interests of justice.

For all of the above reasons, the Court finds no waiver of the attorney-client privilege as to the 1471 documents inadvertently produced.

J.S.M.

-ATTENTION-

AMERIPRISE

491(k) INVESTORS

If you are a current participant or retiree in the Ameriprise

Financial 401(f) Plan

or the American Express 410(k) Plan

we would like to speak with you

about our investigation of fees and investment

options in your plan.

Please call:

Mark Boyko or Heather Lea

Law Offices of

SCHLICHTER BOGARD &

DENTON

(800) 873-5297

Amer_KR2_002098728 (emphasis in original).