Commercial Litigation and Arbitration

Bank of America Privilege Waiver Order — Not Authorized by Federal Rule of Evidence 502

Download associated file: B of A Waiver Order.pdf 

The Southern District Judge presiding over the SEC/Bank of America action entered the selective waiver order drafted by counsel for Bank of America and the Securities and Exchange Commission (attached). In my view, it does not operate to preserve the privilege as it is phrased because it is not authorized by Federal Rule of Evidence 502. It is instead an attempt at effecting a selective waiver, and that part of the Rule was withdrawn before enactment — because of complaints from corporate counsel that selective waiver would encourage the "culture of waiver." This order is certainly not authorized by Rule 502(d), which contemplates entry of a privilege-preserving order. A 502(d) order provides that a disclosure is not a waiver. This order provides that the disclosure is a waiver, but a waiver only of the documents and information actually produced. That is a selective waiver, and Rule 502(d) has nothing to do with that. To the extent this order does more, Rule 502(d) does not contemplate an order that describes the effect of a selective waiver because Rule 502(d) doesn't contemplate any waiver. Further, this order is ineffective insofar as it purports to determine the effect of production to the Attorney General of the State of New York (or others not before the Court). That is not a disclosure “connected with the litigation” — a phrase that was specifically designed to prohibit courts from attempting to address extrajudicial use of documents with regulators.

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