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In her June 23 oral ruling in Wilmington Savings Fund Society FSB v. M.J. Soffe, Adv. No. 16-50364 (Soffe), U.S. Bankruptcy Judge Mary Walrath of the District of Delaware followed a growing line of precedent in ordering Wilmington Savings Fund Society FSB (WSFS), as successor collateral and administrative agent under a term loan facility with TSA Stores Inc. and certain of its affiliates (the debtors), to produce documents in the possession of its predecessor agent, Bank of America N.A. (BOA). In so ruling, Walrath joined courts in New York, Tennessee, Idaho and Nevada in requiring assignee plaintiffs to produce documents held by their assignors. Moreover, this obligation exists regardless of the assignee’s ability to obtain such documents from its predecessor.

Prior Law

The seminal case on this subject is JPMorgan Chase v. Winnick, 228 F.R.D. 505 (S.D.N.Y. 2005). In Winnick, JPMorgan, in its capacity as administrative agent under a credit agreement sued officers, directors and employees of its borrower in connection with loans under a credit agreement. The defendants served discovery on JPMorgan, seeking documents in the lender banks’ possession, custody or control. JPMorgan asserted, among other things: that the documents sought were not in its custody, possession or control; that it did not have the right to demand such documents under its agency agreement; that the lender banks were not parties to the case; and that defendants were in a better position than JPMorgan to enforce disputed discovery from any unwilling bank. The court found that “viewed from any angle, [JPMorgan]‘s position cannot be correct.”

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