Opinion
2014-06-26
AMBAC ASSURANCE CORPORATION, et al., Plaintiffs–Respondents, v. COUNTRYWIDE HOME LOANS, INC., et al., Defendants–Appellants, Bank of America Corp., Defendant.
Simpson Thacher & Bartlett LLP, New York (Barry R. Ostrager and Shannon McGovern of counsel), for appellants. Patterson Belknap Webb & Tyler LLP, New York (Robert P. LoBue of counsel), for respondents.
Simpson Thacher & Bartlett LLP, New York (Barry R. Ostrager and Shannon McGovern of counsel), for appellants. Patterson Belknap Webb & Tyler LLP, New York (Robert P. LoBue of counsel), for respondents.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered December 17, 2013, which denied defendants-appellants' (collectively, Countrywide) motion to compel plaintiffs (collectively, Ambac) to produce certain documents relating to Ambac's self-assessment of its shortcomings in underwriting residential mortgage-backed securities (RMBS), unanimously affirmed, with costs.
The court providently exercised its discretion in denying Countrywide's motion to compel ( see Cook v. HMC Times Sq. Hotel, LLC, 112 A.D.3d 485, 977 N.Y.S.2d 212 [1st Dept.2013] ). The court's order limiting disclosure of a subset of documents addressing Ambac's recognized shortcomings and deficiencies in its RMBS underwriting, referred to as “self-analysis documents,” did not deprive Countrywide of a full and fair opportunity to litigate their defenses. Ambac has already agreed to produce self-analysis documents that specifically identify Countrywide or one of the RMBS transactions at issue. The burden that would be imposed upon Ambac to search for additional documents falling under this category would outweigh Countrywide's need for them ( see Kavanagh v. Ogden Allied Maintenance Corp., 92 N.Y.2d 952, 954, 683 N.Y.S.2d 156, 705 N.E.2d 1197 [1998] ). Further, Countrywide has not demonstrated that the documents are material and necessary in the defense of this action ( see CPLR 3101[a] ). Indeed, as the court found, evidence of hindsight analysis would not tend to reveal Ambac's knowledge at the time it entered into the transactions at issue ( see DDJ Mgt., LLC v. Rhone Group L.L.C., 15 N.Y.3d 147, 154, 905 N.Y.S.2d 118, 931 N.E.2d 87 [2010] ). MAZZARELLI, J.P., ACOSTA, FREEDMAN, RICHTER, CLARK, JJ., concur.