Update: Wachtell provided all of its relevant documents to Bank of America, and those that fit within the scope of what the bank agreed to turn over, work product included, were produced.
Bank of America’s document production may expand wider than it anticipated.
When BofA waived its attorney-client privilege to documents relating to the Merrill Lynch merger, they intended to limit that waiver to the SEC case, the congressional inquiry and Andrew Cuomo’s New York state inquiry.
But the immediate question that waiver raised was how plaintiffs in the private lawsuits filed against BofA would deal with that attempted limitation. Though we and others repeatedly asked for comment, the plaintiffs’ attorneys in those cases remained quiet. But now, The American Lawyer’s Zach Lowe reports, the first request for the formerly-privileged documents has been made, and it appears they are seeking to expand the scope.
Am Law: The firms headlining the massive stockholder derivative lawsuit against BofA in the Chancery Court in Delaware have asked — and received — permission to subpoena documents from Wachtell and Cleary and depose top executives, including John Thain, according to New York state court records. (The firm leading the charge — Horwitz, Horwitz & Paradis — is based in New York and needed to get permission from its home state court — and that of Thain — in order to carry out the depositions and the subpoenas, according to a source familiar with the matter.)
And the firms want everything. The application explaining the scope of the subpoenas states simply that plaintiffs want Wachtell and Cleary to turn over “all documents concerning the merger.”
That would mean they are asking for not only those documents that were turned over to the SEC, et. al., already, but also internal Wachtell documents — its work product — which, at the time of the turnover of the privileged documents, had not been asked for by BoA and thus, not turned over. Which also means the question of whether Wachtell would try to resist doing so is still out there.
Am Law notes that the lead Horowitz lawyer declined to say whether they made this move because of the privilege waiver, but it is hard to think of any other reason they would think such a request would be granted. There is no word yet on if Bank of America or Wachtell (or anyone else) will fight the subpoenas, but this will be the next step in what has already been a very interesting case for the attorney-client privilege.
Interestingly, in another Am Law article, Lowe points out that certain formerly-privileged documents are also being produced in the Lehman bankruptcy case. Weil Gotshal is apparently producing some of its documents relating to the controversial sale of Lehman assets to Barclay’s in September of last year around the time of Lehman’s collapse. Those documents, however, are remaining under seal.
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