BANK OF AMERICA, N.A., as Successor by Merger to Fleet
National Bank, as Agent for a Syndicate of Lenders, Plaintiff vs.
DELOITTE & TOUCHE LLP, Defendant
The defendant, Deloitte & Touche LLP (“Deloitte”), has moved this Court for an order
compelling the plaintiff, Bank of America (“B of A”), and a non-party, Evergreen Collateral
Consulting (“Evergreen”), to produce in discovery documents that had been previously
produced by Evergreen to the United States Securities and Exchange Commission (“SEC”) in
response to a subpoena. After hearing, Deloitte’s motion to compel is ALLOWED.
Evergreen, a small commercial finance examination firm, had been retained in 2002 by B of
A’s predecessor in interest (Fleet National Bank, N.A. (“Fleet”)) to review the books and
records of DVI Financial Services, Inc. (“DVIFS”), to whom Fleet, as agent for a syndicate of
banks, had lent many millions of dollars. Evergreen’s focus in its review was to test the
collateral pledged to the syndicate by DVIFS, which comprised the Borrowing Base for the
loans. Evergreen prepared reports regarding its review in January and November 2002.
After DVIFS unsuccessfully attempted to file its Form 10-Q for March 31, 2003 without
Deloitte’s certification and Deloitte’s resignation as the auditor for DVIFS’s corporate parent,
Fleet retained outside counsel, Attorney Jonathan Bernstein (“Bernstein”) of the law firm of
Bingham McCutchen, to analyze Fleet’s position regarding the collectability of this loan. B of
A asserts that Bernstein’s retention was in anticipation of litigation. Bernstein attests that,
beginning in early July 2003, Evergreen performed work for the purpose of assisting him in
what was essentially an internal investigation of the syndicate’s loan to DVIFS.
Consequently, B of A refused to produce in discovery Evergreen’s September 5, 2003 report
and related work papers regarding Evergreen’s examination of DVIFS, claiming that these
documents were protected under the work product doctrine. This cla