MPEG LA, L.L.C. v. Dell Global B.V., C.A. No. 7016-VCP (Del. Ch. Dec. 9, 2013).
Issue Presented: The Court reviewed in camera selected documents which were the subject of a motion to compel due to a dispute about whether the documents should be protected under the attorney-client privilege.
This short letter opinion is useful for the toolbox of litigators to the extent that it reiterates the governing principles to determine which documents will be entitled to protection under the attorney-client privilege.
The beginning point for the analysis is Delaware Rule of Evidence 502(b) which specifies that communications may qualify for the attorney-client privilege even if no party to the communication is an attorney, for example, when it is a communication between representatives of the client or between the client and a representative of the client if it is a communication made for the purpose of facilitating the rendition of legal services to the client. Other governing principles include the following:
1) The attorney-client privilege protects legal advice only, and not business or personal advice.
2) Where business and legal advice are inseparable in a communication – – or the communication includes individuals serving in both business and legal advisory roles – – the communication will be considered privileged only if the legal aspects predominate. See footnotes 7 and 8.
3) Even if the communication is with a legal advisor, it will not be protected if the communication involves only a business matter.
4) If the communication includes both business and legal advice, the legal-related portions must be redacted where possible. Where the legal and business advice, however, cannot be segregated or is too difficult to determine, the party asserting the privilege will be given the benefit of the doubt and the communication will be protected. See footnote 11.