A recent Delaware Court of Chancery opinion involved a rare situation: A special litigation committee decided that the derivative plaintiff should be able to pursue a derivative suit that was filed against the company.  In the matter styled: In re Oracle Corporation Derivative Litigation, C.A. No. 2017-0337-SG (Del. Ch. Dec. 4, 2019), the court addressed the question of whether the derivative plaintiff should be given all of the documents that the special litigation committee reviewed and to which they had access. See prior Chancery decision in this case highlighted on these pages for additional background.

Compare this decision with the recent Chancery opinion in J.P. Morgan Trust Company of Delaware v. Fisher, C.A. No. 12894-VCL (Del. Ch. Dec. 5, 2019), which “confirmed as still good law” an analogous exception to attorney/client privilege between a trustee and a beneficiary, known as the Riggs exception, based on a Chancery 1976 decision by that name.

In this short highlight of the latest Oracle decision, I only want to focus on one or two points that would have the most widespread application to corporate and commercial litigators:

  • Although not exactly applicable to the somewhat rarified circumstances of this case, the court discusses the important and related exception to the attorney/client privilege that applies when a stockholder is seeking attorney/client privileged information from the directors of a company that is being sued. Often referred to as the Garner exception, based on the court decision that first announced the exception, the Garner doctrine is pertinent where legal advice has been rendered to fiduciaries–who are asserting the privilege over the advice received in the course of their fiduciary service against the stockholder-plaintiffs. See Slip op. at pages 49-43.
  • See also footnote 262 applying similar reasoning to documents withheld based on an assertion of the work-product immunity. See footnote 262. But compare Slip op. at 60 (discussing the common-interest doctrine.)