Allianz Global Investors GmbH v. Bank Of America Corporation
- Lorna Schofield
- 1:18-cv-10364
- U.S. District Court · Southern District of New York
- 6
In Allianz Global Investors v. Bank of America, Judge Aaron ruled BlackRock’s talking-points document was not privileged and denied motions to seal without prejudice.
BlackRock, Defendants, and the parties seeking to seal the filings were affected. The talking-points document was found unprotected by attorney-client privilege and could be used by Defendants; the sealing motions were denied without prejudice, with narrower redactions permitted.
What happened
In Allianz Global Investors GmbH v. Bank of America Corporation, Defendants challenged BlackRock’s claim that a four-page document titled “FX Fix Talking Points” was protected by attorney-client privilege. BlackRock had previously produced the document and later took it back under the case’s confidentiality order.
The court found that the document’s contents were intended to be shared with BlackRock’s clients, even if the document itself was not directly given to them. Because the document was meant to help personnel speak with clients and answer their questions, the court held that it was not protected by attorney-client privilege. The “Privileged and Confidential” label did not change that conclusion.
Magistrate Judge Stewart D. Aaron ruled that the document was not privileged and could be used by Defendants. He denied without prejudice the parties’ motions to seal entire filings and ordered BlackRock to propose narrower redactions for sensitive business information. The opinion did not decide whether the document would be admissible as evidence.
The detailed version
- Allianz Global Investors GmbH v. Bank Of America Corporation · No. 1:18-cv-10364
- Lorna Schofield
- July 1, 2022
Background
Defendants challenged BlackRock’s assertion of attorney-client privilege over a four-page document titled “FX Fix Talking Points,” dated November 6, 2013. BlackRock had produced the document in 2021 and later reclaimed it under Section 5.3 of the parties’ confidentiality order. Defendants then challenged the privilege designation under Section 5.5 of that order.
The document was prepared by or with help from BlackRock’s in-house attorneys. Each page stated, “Privileged and Confidential – FOR INTERNAL USE ONLY.” It contained headings concerning FX fix talking points, WMR benchmarks and background, and questions and answers.
Attorney-Client Privilege Analysis
The court applied federal common law. Attorney-client privilege protects confidential communications made for the purpose of obtaining or providing legal advice, but the party asserting the privilege must establish all required elements.
The court reviewed the document and found that it was not privileged because its contents were intended to be shared with third parties. BlackRock personnel were given the document as an aid for speaking with clients and answering clients’ questions. The court concluded that the intended sharing of the contents defeated BlackRock’s privilege claim, even if the document itself was not intended to be directly disclosed to third parties.
The court also considered the “Privileged and Confidential” legend but found that it did not establish privilege. The court distinguished a case involving memoranda that communicated pure legal advice and found another case unhelpful because it applied Arizona privilege law and did not disclose the contents of the document at issue.
Rulings
The court found that the “FX Fix Talking Points” document was not privileged and may be used by Defendants. The court expressly did not decide whether the document would be used “in evidence”; the opinion states that admissibility questions were reserved for Judge Lorna Schofield.
The court also denied without prejudice the motions to seal filed at ECF Nos. 1110, 1130, and 1132 because they sought to seal entire documents filed at ECF Nos. 1111, 1131, and 1133. Because the privilege dispute had been resolved, the court found no basis to seal those filings and their exhibits in their entirety. The court directed BlackRock to file proposed redacted versions by July 15, 2022, limited to portions it claimed deserved confidential treatment.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.