In Grunstein v. Silva, No. 3932-VCN (Del. Ch., Nov. 20, 2012). The Court of Chancery granted a motion in limine to preclude evidence at trial based on the defendants’ assertion of attorney client privilege. This short letter ruling provides useful principles of Delaware law that prohibit the use of the attorney client privilege as a shield–and then as a sword, in the same case.

More than five prior Chancery decsions in this matter have been highlighted on these pages and provide additional background details.

Key Bullet Points:

– Under Delaware law “a party cannot take a position in litigation and then erect the attorney client privilege in order to shield itself from discovery by an adverse party who challenges that position.”  See footnotes 3 to 5.

– Similarly, Delaware law “precludes a party from shielding evidence from an opposing party and then relying on the evidence at trial to meet its burden of proof  on an issue central to the resolution of the parties’ dispute.”

– The “advice of counsel is placed in issue where the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney client communication.”

– The court determined that the defendants have used the privileged information as a shield during discovery–and thus, will be precluded from using the privileged information as a sword at trial.

Bottom line: Defendants  will not be permitted to use evidence that they have prevented plaintiffs access to based on a claim of privilege.

Practice note: Motions in limine are much less common in Chancery as compared to most other courts