INDEX NO.

651786/2011
NYSCEF DOC. NO. 938

RECEIVED NYSCEF: 09/20/2013

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

In the matter of the application of

THE BANK OF NEW YORK MELLON (as Trustee under
various Pooling and Servicing Agreements and Indenture
Trustee under various Indentures), et al.,

Index No. 651786-2011

Kapnick, J.

Petitioners,
for an order, pursuant to C.P.L.R. 7701, seeking judicial
instructions and approval of a proposed settlement.

MOTION IN LIMINE TO PROHIBIT TESTIMONY OF WILLIAM FREY

THIS MOTION WILL BE ARGUED BEFORE JUSTICE KAPNICK ON MONDAY,

SEPTEMBER 23, 2013, OR AS SOON THEREAFTER AS COUNSEL MAY BE HEARD
PRIOR TO THE PROFFER OF MR. FREY'S TESTIMONY

WARNER PARTNERS, P.C.

GIBBS & BRUNS, LLP
950 Third A venue, 32nd Floor
1100 Louisiana, Suite 5300
New York, New York 10022
Houston, Texas 77002
(212) 593-8000
(713) 650-8805
Attorneys for the Institutional Investors, Intervenor-Petitioners
MAYER BROWN LLP
DECHERTLLP
1095 Avenue ofthe Americas
1675 Broadway
New York, New York 10036
New York, New York 10019
(212) 698-3500
(212) 506-2500
Attorneys/or Petitioner, The Bank ofNew York Mellon

A central question before the Court in this Article 77 proceeding is what information the
Trustee considered in making its decision to accept the $8.5 billion settlement, the servicing
improvements, and the document cure. AIG has subpoenaed an individual named William Frey
to testify as a witness in this proceeding.
AIG does not contend that Mr. Frey played any role in the negotiation of the settlement
or even spoke with the Trustee on any matter relevant to the settlement. Instead, as explained by
Mr. Reilly, Mr. Frey "had knowledge about alternative investors and potentially alternative
approaches to Ms. Patrick's group." There is no suggestion that Mr. Frey ever spoke to or
interacted with the Trustee about matters at issue in this proceeding. Instead, the proffer of Mr.
Frey's testimony concerns other investors' actual and potential litigation strategies that were not
made known to the Trustee. In other words, Mr. Frey is being called to testify that other
investors, and perhaps he too, had different ideas from the Institutional Investors about how
negotiations with Bank of America should have been handled, but not to claim that he brought
any of this to the attention of the Trustee at the time.
This is confirmed by what Mr. Reilly called a "non-disclosure agreement," which is an
agreement by which Mr. Frey was retained as a consulting litigation expert by Talcott Franklin,
P.C. on behalf of investors in Mr. Franklin's consortium, which then included both PIMCO and
BlackRock. As the agreement makes clear, the work Mr. Frey performed as a consulting
litigation expert for Mr. Franklin, PIMCO and BlackRock was confidential and privileged; it was
not intended to be shared and, in fact, was not shared with either Bank of America or
BNYMellon.

Since Mr. Frey played no role in the settlement discussions, and had no interactions with
either BNYMellon or Bank of America regarding the settlement that is at issue here, his factual
testimony is irrelevant. He simply has no information that was either considered in, or conveyed
during, the settlement negotiations.
If AIG seeks to call Mr. Frey to testify to what should have been done by the Institutional
Investors or, perhaps, by the Trustee, that is the subject of expert testimony. AIG has not
designated Mr. Frey as an expert, and indeed Mr. Frey would have been unavailable for such a
designation by AIG, because any such expert retention would have been in conflict with Mr.
Frey's obligations as a former retained expert to PIMCO and BlackRock. The Court should not,
in the guise of a subpoena for trial testimony, permit AIG to invade the work product and
attorney client privilege by calling a former retained consulting expert to testify against the
interests of the investors who retained him and to whom he owes continuing duties of loyalty and
confidentiality.
Dated: New York, New York
September 20, 2013
WARNER PARTNERS, P.C.

By:

K~ i.tJ~
Kenneth E. Warner (KW-5524)

950 Third Avenue, 32nd Floor

New York, New York 10022
Phone: (212) 593-8000
GIBBS & BRUNS, LLP
1100 Louisiana, Suite 5300
Houston, Texas 77002
(713) 650-8805

Attorneys for Institutional Investors,

Intervenor-Petitioners

DECHERTLLP

By:

!I.e~ ~~~
Hector Gonzalez

1095 A venue of the Americas

New York, New York 10036
(212) 698-3500

MAYER BROWN LLP

By:

tixttkw

D. I t~-leA-

Matthew D. Ingber

1675 Broadway
New York, New York 10019
(212) 506-2500
Attorneys for Petitioner
The Bank ofNew York Mellon