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IN RE D. H. OVERMYER TELECASTING CO.

May 25, 1979

In re D. H. OVERMYER TELECASTING CO., INC., Debtor. COLUMBIA PICTURES INDUSTRIES, INC., Appellant,
v.
D. H. OVERMYER TELECASTING CO., INC., Appellee



The opinion of the court was delivered by: DUFFY

OPINION AND ORDER

This is an appeal by Columbia Pictures Industries, Inc. (hereinafter referred to as "Columbia"), from three rulings of the Honorable Roy Babitt, Bankruptcy Judge, overruling Columbia's objections to questions propounded by the debtor, D. H. Overmyer Telecasting Co., Inc. (hereinafter referred to as "Telecasting"), at a deposition of Thomas Bianchi, Senior Counsel for Columbia, conducted pursuant to Rule 205 of the Bankruptcy Rules.

In August of 1976, Telecasting filed a petition under Chapter XI of the Bankruptcy Act. Thereafter Columbia filed a claim as a creditor. Columbia has at all times during the Bankruptcy proceedings been represented by both "in-house" counsel and outside counsel. Columbia's staff of "in-house" counsel, insofar as this appeal is concerned, consists of Thomas Bianchi, Senior Counsel, and Edward Holtzmann and Victor Kaufman as general counsel. Columbia's outside counsel for purposes of the instant bankruptcy proceeding are Messrs. Weil, Gotshal & Manges (hereinafter referred to as "Weil Gotshal").

 As the Chapter XI proceedings progressed, Telecasting requested, by Ex parte application, an order from Judge Babitt authorizing the examination of various Columbia representatives including Thomas Bianchi. The purpose for the depositions, as set forth in the Ex parte application, was to ascertain whether Columbia, as creditor, had received or been promised any advantage from the First National Bank of Boston (hereinafter referred to as "First National"), a co-creditor in the Telecasting estate, for joining in First National's motion to dismiss the Chapter XI proceeding. If such an advantage were realized by Columbia (as a consequence of its joining First National's motion to dismiss) it might constitute a crime under 18 U.S.C. ยง 152 which provides in pertinent part:

 
Whoever knowingly and fraudulently gives, offers, receives or attempts to obtain any money or property, remuneration, compensation, reward, advantage, or promise thereof, for acting or forbearing to act in any bankruptcy proceeding;
 
Shall be fined not more than $ 5,000 or imprisoned for not more than five years, or both.

 Judge Babitt signed the order and the Bianchi deposition was set down for May 23, 1978. At the deposition Bianchi, represented by Weil Gotshal, was asked the following questions:

 
(a) "Could you tell me, to the best of your recollection, Mr. Bianchi, the substance of the conversation between you and Mr. Kaufman about the Columbia Pictures' claim against D. H. Overmyer Telecasting?" Tr. at 21.
 
(b) "So that in determining whether that motion (to dismiss the Chapter XI proceeding) was appropriate . . . what did you do, what facts did you learn . . . ?"
 
(Answer: "I had a discussion with our outside counsel (Weil Gotshal), and the facts that I learned came from our outside counsel.")
 
"What did you learn?" Tr. at 31-32.
 
(c) "Did you speak to anybody at Columbia to report on the results of your investigation of the appropriateness of this motion (to dimiss)?"
 
(Answer: "I talked to Ed Holtzman (sic).")
 
"What did you tell Mr. Holtzman ...

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