Bankruptcy Settlements and the Common Interest Privilege

Negotiations may not be protected from discovery.

, New York Law Journal

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Davis Polk & Wardwell's Elliot Moskowitz and Mathew S. Miller write: As the time between when adversaries agree in principle on a settlement and when an order is entered confirming the plan of reorganization that implements that settlement has grown, so too has the degree of coordination and communication among formerly-adverse plan co-proponents, and there is a need for clarity about whether those interactions are fair game for discovery.

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