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.