In Ryan v. Gifford, (Del Ch., Nov. 30, 2007), read opinion here, the Chancery Court ordered the production of a report that a company’s lawyers provided to a special committee of the board, finding that the privilege was waived when a copy was sent to the whole board, some of whose members were the subject of the derivative suit involved. Hat tip to Skadden’s Paul Lockwood via Harvard’s Corporate Governance Blog, who has a summary of the decision on that blog.
For all the e-discovery fans among you, the court also required the production of metadata for documents that were related to the backdated stock option claims, for at least 2 reasons:
(i) the metadata would have information about the dates of drafts of the documents related to the allegedly backdated options; and
(ii) the special committee’s investigation apparently included a review of the metadata.
Here is a link to summaries of the prior two decisions by the court in this case.