In re Eastern Bancorporation
In re Eastern Bancorporation
Opinion of the Court
OPINION
The issue at bench is whether we should direct the production of a document which
The facts of this case are as follows:
The former officers, however, contended that the attorney-client privilege had been waived as to the writing in question because that document had been shown to a third party, one Edward McErlean (“McEr-lean”). The debtor’s counsel responded that, at the time the document was shown to McErlean, he was acting as an agent of the bank and, therefore, the attorney-client privilege had not been waived with respect to that document.
Because the evidence before us did not clearly show when McErlean became an agent of the bank (whether before or after the document was shown to him), we initially ordered that the document be produced. However, we granted the debtor’s application for an opportunity to offer additional evidence on this issue.
From a review of those depositions, we find that at the time that copies of the document in question were shown to McEr-lean and to Doyle neither of them had agreed to act as the bank’s agent.
. This opinion constitutes the findings of fact and conclusions of law required by Rule 752 of the Rules of Bankruptcy Procedure.
. Counsel for the debtor (Fellheimer, Eichen and Goodman) is also counsel for the bank which is allegedly a majority shareholder of the debtor.
. See our opinion and order of July 2, 1981, in this case, 12 B.R. 426 (Bkrtcy.).
. According to their depositions, Doyle and McErlean were each given a copy of the document on October 20, 1980, when they were asked to act as the bank’s agents. However, both testified that they did not agree to act as agents for the bank until several days after that meeting. See Doyle deposition at 11-14; McErlean deposition at 19 and 20 (October 19, 1981).
.See, e.g., In re Penn Central Commercial Paper Litigation, 61 F.R.D. 453 (S.D.N.Y. 1972). See, generally, 2 Weinstein’s Evidence ¶ 503(a)(4)[01] (1981) (ordinarily the disclosure of a privileged communication to a third party contradicts the confidentiality which is at the heart of the privilege). See also, 4 Moore’s Federal Practice ¶26.60[2] (2d ed. 1981).
Reference
- Full Case Name
- In re EASTERN BANCORPORATION, Debtor
- Status
- Published