W.L. Gore & Associates, Inc. v. Darrell Long, et al., C. A. No. 4387-VCP (Del Ch. Mar. 3, 2010), read decision here.
Kevin Brady, a litigator at Connolly Bove, prepared this synopsis.
After an in camera review of a redacted email, the Court concluded that Gore had made a showing of substantial need for the unredacted copy of the email sufficient to overcome the claim of work product immunity under Court of Chancery Rule 26(b)(3).
In addition, the Court found that the email should be produced based on the “at issue” exception to the attorney-client privilege, the crime/fraud exception or both (citing Princeton Ins. Co. v. Vergano, 883 A.2d 44, 59 (Del. Ch. 2005)) (under the at issue exception, a party waives the attorney-client privilege when “it (1) injects the attorney-client communications into the litigation; or (2) injects an issue into the litigation, the truthful resolution of which requires an examination of attorney-client communications.”) The Court also cited Del. R. Evid. 502(d) where “[t]here is no privilege [i]f the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” The Court stated that the email “put the state of mind of GE Energy and, in particular, its in-house counsel  at issue” and it created “a prima facie showing that [in-house counsel] may have sought the services of a lawyer to aid him in committing what he knew or reasonably should have known to be a fraud.”