The purpose of this short blog post is to identify key decisions that are merely a helpful starting point in an analysis of whether or not the attorney/client privilege was preserved by the seller of a company post-closing, depending on whether the transaction was a sale of assets, or a statutory merger, or some variation.

The recent Superior Court decision in Serviz, Inc. v. ServizMaster Co., LLC, et al., C.A. No. N20C-03-070-PRW-CCLD (Del. Super. Dec. 6, 2021), considered a post-closing assertion of a privilege over attorney/client communications, involving the sale of a server, among other assets, pursuant to an asset purchase agreement.  There are other important details that are necessary to an understanding of the case, but the purpose of this short blog post is only to identify a few key cases to begin one’s research on this topic.  This recent case follows the seminal decision in Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, C.A. No. 7906-CS (Del. Ch. Nov. 15, 2013), which found that in connection with a statutory merger under 8 Del. C. § 259, absent an express reservation by agreement, all privileges are property of the surviving corporation.  This contrasted with an earlier Chancery decision which reached an opposite conclusion in connection with an asset sale.  See Postorivo v. AG Paintball Holdings, Inc., C.A. No. 2991-VCP (Del. Ch. Feb. 7, 2008).

Of course, there are other decisions that need to be included in any complete analysis of this topic, and the specific facts of any situation may be outcome-determinative, but for selfish purposes I wanted to make these three cases easier to find in one place, in the event I ever needed to embark on an extended analysis of the titular topic.