I am at the Annual ABA Meeting in New York City today. I just attended a helpful presentation on the multi-faceted aspects of the attorney/client privilege in the context of shareholder derivative suits and special litigation committees of the board of directors.
Wilmington lawyer Kurt Heyman moderated the panel that included a member of the Delaware Court of Chancery. Many helpful cases were discussed including a very factually specific and detailed Order of the Chancery Court in a case involving AIG which I will try to upload here when I get back to the office. The issue addressed was whether individual directors who were defendants in the suit could have access to data that the defendant corporation claimed were protected by the attorney/client privilege. So too, the issue was addressed of whether derivative shareholders were entitled to obtain similar materials. In Delaware, such Orders (compared to an opinion) can still be cited in briefs, so it would be helpful to have ready access to it.
SUPPLEMENT: Here is the Order of the Chancery Court in the AIG case that allowed the directors access to data that the corporation sought to prevent the disclosure of based on the attorney/client privilege. Here are the program materials presented by Kurt, including highlights of the Order and helpful citations to related cases supporting the conclusions in the Order, and related useful commentary. Many thanks to Kurt Heyman as well as his colleague Patricia Enerio for the excellent materials and for allowing me to upload them for this blog post.