BofA Board Waives Privilege: produces documents otherwise protected by attorney-client privilege

The WSJ reported last night that BofA's board voted Friday to waive it's attorney-client privilege, producing documents to various moving parties regarding the Merrill merger. Specifically, the documents produced will be between BofA and outside counsel regarding Merrill 4Q08 losses, the Merrill 2008 bonuses, and the manner and extent those bonuses would be publicly disclosed.

I have followed the BofA and Merrill matter closely (See e.g. here and here). Recall briefly that as various government and plaintiff investigations proceeded, BofA executives maintained they executed the Merrill merger and Merrill bonus disclosure per the advice of outside counsel. Then when asked what counsel advised, BofA executives indicated such information was privileged. BofA maintains they have done nothing wrong.

Big Law implicated in the matter? BofA outside counsel during the merger was Wachtell; Merrill counsel during the merger was Shearman Sterling. Current BofA counsel, as regards the various investigations into the Merrill merger, include Cleary Gottlieb and Paul Weiss.

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