“The obligation that an ERISA fiduciary act in the interest of the plan beneficiary does not differ depending on whether that fiduciary is a trustee or an insurer. There is therefore no principled basis for excluding insurers from the fiduciary exception.”  At the same time, “by agreeing to serve as a fiduciary, an ERISA trustee is not completely debilitated from enjoying a confidential attorney-client relationship.”  The documents at issue were notes of conversations between Unum claims analysts and Unum’s in-house counsel about how the insurance policy under which plaintiff was covered ought to be interpreted. The documents, the Court found, offer advice solely on how the Plan ought to be interpreted.  “They do not address any potential civil or criminal liability Unum might face, nor is there any indication that they were prepared with such liability in mind. The context of the documents at issue here – communications in advance of Unum’s decision on Stephan’s appeal – indicates that their goal was the determination of Stephan’s pre-disability earnings, a matter of plan administration, and was not preparation for litigation.”  Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917 (9th Cir. 2012).