In Re National Mortgage Equity Corporation Mortgage Pool Certificates Litigation. Bank of America v. National Mortgage Equity Corporation

On May 9, 1988, we issued an order dismissing this appeal for lack of jurisdiction, denying appellees’ motion for sanctions, and declining to treat the appeal as a petition for a writ of mandamus. By this opinion, we state our reasons for doing so. BACKGROUND

The underlying case in the district court is composed of a number of cases from the Northern and Central Districts of California that were consolidated for pretrial discovery and motions by the panel on multidistrict litigation. All cases concern the promotion and sale of mortgage pool certificates by National Mortgage Equity Corporation and David Feldman (collectively NMEC).

Appellee Bank of America (B of A) moved for an order requiring the Chicago law firm of Lord, Bissell, and Brook, which had represented NMEC from December, 1982, to November, 1984, to produce documents concerning the sale and promotion of the certificates. B of A claimed the crime-fraud exception abrogated the protection of the attorney-client privilege and work product doctrine. The magistrate to whom the motion was referred granted the motion, finding that B of A had made out a prima facie case of a scheme to defraud that was wholly pervasive through…