Skip to content

Menu

Published by Francis G.X. Pileggi
HomeAbout FrancisContact
Search
Close

Delaware Corporate & Commercial Litigation Blog

Highlights & Analysis of Key Decisions from Delaware's Supreme Court & Court of Chancery

Preserving Attorney/Client Privilege for Outside Directors

By Francis Pileggi on January 3, 2022
Posted in Chancery Court Updates, Commentary

A number of Delaware decisions have provided the analytical framework to determine if outside directors have preserved the attorney/client privilege when, for example, they use the email server of another company, or their personal email accounts, to communicate with their lawyers. Edward Micheletti of the Delaware office of the Skadden Arps firm, and two of his colleagues, have provided an exemplary explanation of the case law on this topic.

Supplement: For those using the above-linked article as a starting point for their research on this topic, a more recent decision should be included in the analysis. In Burke American Parts Group, LLC v. F3C Parts, LLC, C.A. No. 2021-0245 (Del. Ch. Dec. 27, 2021), the Court of Chancery granted a motion to compel the search for, and production of, responsive emails from the personal account of “custodians” in a business dispute who used their personal email account for communications about the business dispute. In one of two Orders issued in the case on the same day, the court explained at the end of the Order that:

Oral argument is unnecessary. The motion is granted. The custodians chose to use their personal accounts for Freedom business. The custodians plainly have the ability to access their personal accounts. They did just that by using them for Freedom business. The separate entity existence of Freedom of is not a shield to be used to prevent legitimate discovery.

Tags: "personal email account", attorney/client privilege, custodian, Delaware business litigation, directors, discovery, privilege
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Francis Pileggi Francis Pileggi
Read more about Francis Pileggi
Related Posts
Law professor tells Delaware lawyers to advise companies to do the right ethical thing
May 7, 2022
Amendments to DGCL Section 145: Indemnification and Advancement Via Captive Insurance Companies
February 7, 2022
Resources for Judicial Ethics Research
January 12, 2022

About Francis

Francis practices primarily in the areas of corporate and commercial litigation. His practice includes representation in high-stakes disputes for a wide range of clients in many industries
Read More....

Resources

  • Delaware Supreme Court
  • Delaware Court of Chancery
  • Francis Pileggi’s Book on Legal Ethics
  • Guidelines for Non-Delaware Lawyers Working with Delaware Counsel
  • Chancery Practice Guidelines
  • The Delaware Journal of Corporate Law
  • Annual F.G. Pileggi Distinguished Lecture In Law
  • Delaware Advantages for Businesses

Topics

  • Annual Review of Key Delaware Cases
  • Delaware Supreme Court Updates
  • Chancery Court Updates
  • Selected Articles by Francis
  • Commentary
  • Other Court Decisions

Stay Connected

RSS View My Facebook Profile View My LinkedIn Profile View My Twitter Profile

Recent Posts

  • Delaware Supreme Court Clarifies Pro Hac Vice Standards
  • Supreme Court Decides Deadline for Notice of Indemnification Claim
  • Chancery Addresses Claims of Excessive Executive Compensation
  • Chancery Opinion is Public Service Announcement
  • Chancery Refuses to Enforce Forum Selection Clause Due to Delay, Related Reasons

Archives

Blogroll

  • China Law Blog
  • Delaware Business Litigation Report
  • Electronic Discovery Law Blog
  • Freivogel on Conflicts
  • Legal Ethics Forum
  • New York Business Divorce Blog
  • PA Right-To-Know Law Blog
  • ProfessorBainbridge.com (Stephen Bainbridge)
  • The CLS Blue Sky Blog
  • The D & O Diary
  • The Harvard Law School Corporate Governance Blog
  • The Icahn Report (Corp Gov Blog)
  • The Race to the Bottom Blog
  • TheCorporateCounsel.net Blog (Broc Romanek)
  • Truth on the Market Blog (law, economics and more)
  • Whispers in the Loggia
  • Wikipedia (entry for this blog)
Francis G.X. Pileggi

Lewis Brisbois

500 Delaware Ave.
7th Floor
Wimington, DE 19801

Phone: 302-985-6002
Email: Francis.Pileggi@lewisbrisbois.com

About the Firm

Lewis Brisbois has over 1,500 lawyers who represent clients in over 40 practice areas in over 50 offices in the United States. For more details visit: lewisbrisbois.com

RSS View My Facebook Profile View My LinkedIn Profile View My Twitter Profile
Privacy PolicyDisclaimer
Copyright © 2022, Francis G.X. Pileggi. All Rights Reserved.
Law blog design & platform by LexBlog LexBlog Logo