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A witness in the Incora adversary trial is being called back to the stand after a judge determined his testimony waived attorney-client privilege regarding legal advice given to him on bond indentures.

Platinum Equity fact witness Kevin Smith may be cross-examined on his “commercial understanding” of certain pieces of the credit documents and legal advice provided to him by Latham & Watkins, Judge Marvin Isgur wrote in a memorandum opinion filed Monday.

Per the opinion, Smith will also need to produce copies of written communications from counsel regarding the meaning of any section of the indentures that contain the words “redeem,” “redemption,” or “redemptions.”

The opinion represents a small win for the creditors challenging the transaction in the adversary proceeding underway in US Bankruptcy Court for the Southern District of Texas, which could have broad ramifications for the sorts of rescue financing deals Incora embarked on.

Smith — a managing director with Platinum who acted as a financial advisor to Incora — testified on 9 February that he was asked to review the company’s bond indentures and form a “commercial understanding” of its terms, according to the opinion.

Smith testified that he consulted with counsel for Platinum and Incora regarding the indentures, and received advice from Latham on the redemption section of the indentures, Isgur wrote.

The ad hoc group of 2024/2026 noteholders and King Street-affiliated Langur Maize — the two parties disputing the transaction — argued that Smith’s testimony waived-attorney client privilege because it was based on advice he received from counsel. Platinum argued no waiver had occurred because Smith “formed his own understanding” of the indentures and only confirmed that understanding using advice from his counsel.

Based on existing case law, Isgur determined that counsel opposing Platinum would have a right to probe into the confirmation of Smith’s understanding provided by his conversations with counsel.

“Platinum is asking the Court to allow Smith to testify only as to his commercial understanding,” Isgur wrote. “But the only way to separate Smith’s commercial understanding of Wesco’s Indentures and the legal advice Smith received is to understand what the legal advice was.”

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Incora witness recalled after legal opinion on attorney-client privilege

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