Deutsche Bank Trust Company of Americas, Appellant, v Tri-Links Investment Trust et al., Respondents., 43 A.D.3d 56

Summary

The indemnitor was a party, both as a lender and as an agent of the lending group, to a debtor-in-possession credit and guaranty agreement (DIP agreement) regarding a corporation going through bankruptcy. One indemnitee, which acquired a majority interest in the lending group, opposed the sale of the bankrupt corporation's assets to a corporate buyer. After the bankruptcy court did not approve the sale of assets, the corporate buyer brought an action against the indemnitor. That case was settled, and the indemnitor filed the instant action. On appeal from the discovery order, the court reversed. While the indemnitees argued that the indemnitor had waived attorney-client privilege as to the legal advice it received in the underlying action by filing the instant case, the court held that no "at issue" waiver of the privilege occurred because the indemnitor did not intend to prove its claim through the use of the privileged materials at issue. In fact, the indemnitor had indicated that ...