Waive the Flag: Bank of America case has companies reconsidering what is privileged

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"This is going to continue to happen over and over again," says Michele DeStefano Beardslee, a University of Miami associate law professor who focuses her research on privilege in the corporate setting. "We've been in what people have called a 'culture of waiver' for a long time, where at first the policy was to try to force companies to waive the attorney-client privilege as much as possible. [The BofA case] is a little bit different, but these questions are going to continue to come up more and more. It'll be interesting to see how this one comes out, because it might set the stage for what's to come."

Siloed Subject

In litigation, controversy might arise if, to use the restructurings scenario above, two of the lenders face adversity down the road or if the borrower gets into a contest with a lender. And the SEC might take interest if one of those lenders is an investment bank that, in other divisions, trades in stock and debt.

"Given what happened with BofA/Merrill, people are really focused on this right now," Newman says. "We're advising our clients to use additional safeguards so that, when they get on these conference calls and have these meetings, we can give them a higher degree of comfort that these communications will in fact be protected by the privilege, and help them design ways to minimize the risks."

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Melissa Maleske

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