Wednesday, November 11, 2009

Buggered BofA Disclosure?

I am a little late to the game on this news, but it's important nonetheless. A while back legal commentators floated the idea that BofA's limited waiver of privilege may have been done incorrectly.

Recall that BofA waived privilege to documents protected by attorney-client privilege, but only in three instances: to the SEC in that agency's pending case in the S.D.N.Y.; to NYAG Cuomo in his pending investigation, where any litigation would occur in a NY State court; and to Representative Ed Towns (D-NY), who Chairs the House Committee on Oversight and Reform that is investigating BofA and the Merrill merger generally.

I have no particular eagerness to show procedural adeptness, so only repeat the analysis of those who are otherwise so-credentialed. The disclosure was drafted under FRE 502. The Rule allows limited disclosure to one party, without having that disclosure be expanded to unrelated parties in the course of other lawsuits. The Rule does not reference "waiver," however. BofA (and their outside counsel on this matter, Cleary Gottlieb) are alleged to have botched their filing under FRE 502 by repeatedly using the word "waiver" instead of court order. Commentators argue the difference is larger than semantics, and in fact, whatever documents BofA produced to the SEC, Cuomo, or Towns, will have to be reproduced to any other plaintiff upon request. (In which case, the only protected documents are those that have not been produced at all or to anyone).

To offer an idea of how large this production could be: when BofA filed paperwork under FRE 502 for limited disclosure, the company named 58 different law suits that should not have access to the newly produced documents.

Of course one group of plaintiffs has decided to test the waters. There is a shareholder derivative suit progressing in the Delaware Chancery Court that has requested and received permission to subpoena all documents regarding the Merrill merger from BofA outside counsel (Wachtell Lipton and Cleary Gottlieb) and to subject various executives to deposition (including former Merrill CEO John Thain). BofA defense counsel for the Chancery Court matter is Davis Polk.

The fall-out from the media attention has been predictable: more commentators indicate the waiver was done incorrectly; BofA maintains it was done correctly. FRE 502 is only a little over one year old and it is widely anticipated there will be a fight before the documents are produced.

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