A quarterly summary and brief analysis of significant decisions issued by the Massachusetts Superior Court Business Litigation Session. A service of O’Connor, Carnathan and Mack LLC.		  

July
2008

Volume 4
Number 4
Page 8
 

Summarizing opinions from Oct 1, 2007 through
Dec. 31, 2007

 

 
 
 

 

 

 

 

 

 

 



 

 
     

O  T  H  E  R      D  E  C  I  S  I  O  N  S  :

Bank of America, N.A. v. BDO Seidman, LLP, 2007 WL 4357801 (Mass. Super.)
(Nov. 26, 2007) (van Gestel, J.).
     

This discovery dispute presented questions relating to the interplay between provisions of the Code of Federal Regulations and the Massachusetts Rules of Civil Procedure. At the center of the dispute was a report prepared by the Office of the Comptroller of Currency (“OCC”) concerning certain loans made by Bank of America to a Defendant corporation. Although the report was produced to Defendants of discovery, Bank of America later sought its return under 12 C.F.R. § 18.9, which provides that “a national bank may not disclose any report of examination or report of supervisory activity, or any portion thereof, prepared by the OCC.” Bank of America moved to compel return of the report; Defendants moved for an order permitting its use.

Despite OCC’s knowledge of the
 

 

 

 

 

 



 

 
discovery dispute, the Office had neither contacted the Defendants directly nor attempted to intervene in the suit to protect its interest in the report. The Court agreed with Defendants that both due process and the Massachusetts Rules of Civil Procedure permit Defendants to retain and make use of the report at issue. Id. at *3. Citing federal cases that interpret the interplay of federal regulations and the Federal Rules of Civil Procedure, the Court held that “discovery rules trump OCC housekeeping regulations.” Id. Nevertheless, before authorizing the use of the report by the Defendants, the Court opted to “provide a window of opportunity for the OCC, if it chooses, to appear before this Court and make its case why a different conclusion is warranted.” Id. at *4.

 
 

 

 

 

 

 

 

 

 



 
 
     
     
 

 

 
 

 

 

 

 


 

Bank of America, N.A. v. BDO Seidman, LLP, 2007 WL 4707796 (Mass. Super.)
(Dec. 10, 2007) (van Gestel, J.).
     

In a separate opinion the Court granted the Deputy Chief Counsel of the OCC an extension of its deadline for the Office to seek return of its report. While noting that “[l]etters to Judges about matters in litigation before them are not a preferred method of communication,” the Court extended the time as requested. But in so doing, Judge van Gestel wondered that

 

 


 

 
the OCC would insist upon “seeking a Federal Court order for the return of an over four-year-old, two-page memorandum concerning a single bank loan, which loan has been in default for more than two years.” Id. at *1. Indeed, the circumstances of the dispute led Judge van Gestel to lament that “[p]erhaps Dickens’s Mr. Bumble was right … the law is a ass, a idiot.” Id.
 

 

 

 

 


 
 
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