Once a lawsuit passes the motion to dismiss, it enters discovery—a costly and time-consuming process.

Here’s what plan sponsors may have to produce:
– Service agreements with third-party administrators and investment firms
– Fee schedules, payment records, and invoices
– Benchmarking data comparing vendor fees to industry standards
– Internal emails, meeting notes, and board minutes discussing vendor selection
– Monitoring reports and performance evaluations

Discovery also includes depositions and interrogatories, where fiduciaries may be asked under oath to justify decisions made years earlier.

If you’re an employer or plan sponsor, prepare now. Conduct regular audits. Keep records of all fiduciary decisions. Use competitive bidding when selecting vendors. Ensure all meetings have written minutes. A strong paper trail is the best defense when discovery comes knocking.

The lesson from Cunningham is simple: fiduciary diligence must be documented, not assumed.