We granted the stay on August 29, 1997. We now issue the writ. It appears that the question has not been decided by any circuit, and has been touched on only indirectly by district courts. But this case more closely resembles In re von Bulow , in which we issued mandamus to review the extension of an established principle to an entirely new context. Here we review the district court's extension of the fiduciary exception to compel disclosure of communications on non-fiduciary matters.
Petitioners therefore prevail on the first prong of the test for availability of mandamus relief.
The absence of an effective remedy once the case reaches the appellate stage in the normal course of proceedings justifies the more liberal use of mandamus in the context of privilege issues. An uncertain privilege . . . is little better than no privilege. Because the district court's holdings establish a new attorney-client privilege rule of general applicability that threatens to upset this predictability, it merits prompt attention and resolution. Immediate resolution of this issue will prevent the development of doctrine and practices that unsettle the privilege. 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.