Commercial Division Blog

Posted: January 24, 2025 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Privilege/Work Product, Motion to Compel, Discovery/Disclosure

Court Compels Collection Of Discovery From Bank’s In-House Counsel Involved In Factual Investigation

On December 21, 2024, Justice Andrea Masley granted a motion to compel a Filipino bank to collect and search documents from one of its in-house counsel despite the bank’s claim that the information possessed by its lawyer would be privileged.  In Bangladesh Bank v. Rizal Commercial Banking Corporation, et al., Index No. 652051/2024, the plaintiff sought to compel RCBC, which is based in the Philippines, to collect and search documents held by one of its in-house lawyers who was involved in factual investigation relevant to the case.  The Court granted the motion.  It explained:

Fernandez-Estavillo was in-house for RCBC and a member of the Audit Committee that investigated the theft. Plaintiff presents evidence indicating that Fernandez-Estavillo was involved in the theft investigation. For example, Fernandez-Estavillo testified in the Blue Ribbon Committee hearings commenced following the theft. RCBC's objection is that a majority of the information possessed by Fernandez-Estavillo would be privileged, and therefore, the burden of such production outweighs any need for the discovery. The court disagrees especially where Fernandez-Estavillo was involved in a fact-gathering role interviewing witnesses and not just rendering legal advice.

The attorneys at Schlam Stone & Dolan frequently advise clients concerning discovery obligations.  Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.