Bank of America has stared down the United States Congress. BOA will not produce numbers of records subpoenaed by the House Oversight and Government Reform Committee. Instead, BOA will provide a privilege log in an unspecified format with unstated detail. BOA will assert Attorney-Client Privilege in refusing to produce the subject documents. The Committee will scour BOA's Privilege Log instead "to determine which documents are critical to the Committee's ongoing investigation." Press Release, House Committee on Oversight and Government Reform, Tuesday, September 22, 2009.
It is unknown how anyone can determine which documents are critical to an investigation without knowing some detail about the substance that is in the documents in the first place. Nor is there any announcement of an agreement about what the U.S. Congress and Bank of America will do if the Congress declares certain documents "critical" and BOA declares them "privileged". The BOA privilege log may be a political cover, without being much of an aid in understanding the Bank's assertion of Attorney-Client Privilege. Time perhaps will tell.
Oh, one other thing in the meantime. The Committee's rather cryptic Press Release did not contain any mention of the fact that the Bank is continuing to blame its lawyers for providing advice to BOA officials regarding disclosure and nondisclosure issues surrounding the Merrill Lynch acquisition and bonus payoff fiasco, on the one hand, while on the other hand BOA contends that it is not formally relying on a defense of advice of counsel which would subject that advice to discovery.
The House Committee's investigation of and subpoenas to Bank of America come with a context. BOA's proposed Settlement Consent Judgment with the Securities and Exchange Commission has been rejected by the United States District Court as a "contrivance". The SEC's Federal Court civil enforcement action concerns the same BOA-Merrill Lynch issues that are being investigated by the House Committee. The New York State Attorney General is also reportedly investigating the same issues. These developments have been explored in previous posts in this space and on Insurance Claims and Issues Web Log at www.insuranceclaimsissues.typepad.com most recently on September 22, 2009.
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