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Adelphia Recovery Trust v. Bank of America

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


February 11, 2009

ADELPHIA RECOVERY TRUST, ET AL., PLAINTIFFS,
v.
BANK OF AMERICA, N.A., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge

OPINION AND ORDER

Following a conference with the Court on January 29, 2009, where the undersigned ruled on various pending discovery motions, and subsequent review of the remaining outstanding discovery disputes presented to the Court,

IT IS HEREBY ORDERED that the record should reflect resolution of the following:

1) Defendants' Motion for Production of Materials from Prior Litigation (Docket No. 148) is DENIED;

2) Defendant Bank of America's Motion to Compel Plaintiffs' Responses to Interrogatories (Docket No. 807) is DENIED;

3) Bank Defendant's Motion to Compel the Production of Documents Related to PricewaterhouseCoopers's Restatement Audit Documents (Docket No. 810) is GRANTED;

4) Plaintiffs' Motion to Compel Production of Documents (Docket No. 814) is DENIED, in part, and GRANTED, in part, with certain requests returned to counsel for further deliberation,

a) Production of communications between the Bank Defendants and Government agencies relating to Adelphia is GRANTED, in part. Bank Defendants assert that documents exchanged with the Office of the Comptroller of the Currency ("OCC") cannot be produced as it would subject them to criminal liability. They fail, however, to demonstrate that all relevant documents are non-public within the definition of the regulations governing OCC documents. Thus, Bank Defendants must produce all public documents and provide a privilege log for all documents it asserts are non-public;

b) Production of documents in the possession of Bank Defendant's consultants. This issue is returned to the Parties for further discussion. Any outstanding dispute should be submitted to the undersigned on or before February 20, 2009;

c) Production of documents concerning compensation criteria or compensation received by employees in connection with Adelphia or the Rigas Family is DENIED, without prejudice;

d) Production of documents generated prior to January 1, 1996, and after June 25, 2002, is DENIED, without prejudice, provided that documents, regardless of date generated, may be requested if shown to be specifically relevant;

e) Production of documents in the possession, custody, or control of outside counsel. The undersigned returned this issue to the Parties for further discussion. Any outstanding dispute should be submitted to the undersigned on or before February 20, 2009;

5) Bank Defendants' Motion to Compel the Production of Documents and Preclude the Assertion of Privilege Pursuant to Rule 37 (Docket No. 806) is GRANTED, in part, and DENIED, in part:

a) Production of the Covington Log Documents is DENIED. The Court concludes the entries on this log are protected under the work product doctrine because they were created in contemplation of litigation;

b) Documents identified on the Directors' Log:

i) Documents related to the Deloitte Action. The ART has conceded the attorney-client privilege as to these documents has been WAIVED;

ii) Documents related to the Prestige Litigation. The Court concludes that the attorney-client privilege was WAIVED as to documents created during the time of the fraud because there was no express exception for privileged documents. The motion to compel these documents is GRANTED;

iii) Communications with the U.S. Attorney. The Court finds there was no waiver of the attorney-client privilege because the ART expressly retained the privilege and produced no privileged documents. The motion to compel these documents is DENIED.

SO ORDERED this 11th day of February 2009.

20090211

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