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
Issue of Preservation of Privilege in Connection with the Sale of a Company
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.…
Chancery Clarifies Exceptions to Attorney/Client Privilege
A recent ruling of the Delaware Court of Chancery provides a useful refresher on the standards that must be met for various exceptions or waivers of the attorney/client privilege to apply. In Drachman v. BioDelivery Sciences International, Inc., C.A. No. 2019-0728-LWW (Del. Ch. Aug. 25, 2021), the Court addressed the following theories which, if applicable,…
Company’s Privileged Communications Must Be Provided to Board Members
I have been writing an ethics column for the national publication of The American Inns of Court, called The Bencher, for about 24 years or so. My latest column appears in the current edition and is reproduced below, courtesy of The Bencher and The American Inns of Court.
Company’s Privileged Communications Must Be Provided to…
Director Denied Attorney/Client Communications–Firm Did Not Represent Whole Board
A recent Delaware Court of Chancery decision explained that: the general rule that a director is entitled to communications with counsel for the board has exceptions, but the threshold issue is whether the attorney involved represents the whole board–or just selected board members. In Gilmore v. Turvo, Inc., C.A. No. 2019-0472-JRS (Del. Ch. Aug. …
Attorney/Client Privilege and Work Product Doctrine Again Addressed by Chancery
AM General Holdings LLC v. The Renco Group, Inc., C.A. No. 7639-VCN (Del. Ch. April 18, 2013). A prior Chancery decision in this case was highlighted on these pages at this link.
Issue Addressed: Whether the attorney/client privilege and the work product doctrine are defenses to a motion to compel.
Short Answer: …
Chancery Addresses Attorney/Client Privilege and Work Product Doctrine
JPMorgan Chase & Co. v. American Century Companies, Inc., C.A. No. 6875-VCN (Del. Ch. April 18, 2013).
Issue Addressed: Whether the attorney/client privilege and work product doctrine were defenses to a motion to compel?
Short Answer: Yes in part and no in part.
This letter decision provides a useful application…
Chancery Rules on Rights of Director to Corporate Information
Kalisman v. Friedman, C.A. No. 8477-VCL (Del. Ch. April 17, 2013).
Issue Addressed: Can a corporation deny access to confidential data to a member of the board of directors based on the attorney/client privilege or work product doctrine? Short Answer: Not based on the facts of this case.
This gem of…
Chancery Addresses “At Issue” Exception to Attorney/Client Privilege
In re Comverge, Inc., Shareholders Litigation, C.A. No. 7368-VCP (Del. Ch. April 10, 2013).
Issue Presented: Whether the attorney-client privilege was a defense to a motion to compel documents.
Short Answer: Yes, under the circumstances of this case.
Summary of Analysis
The court observed that under Court of Chancery Rule 26(b)(1), the…
Delaware Court Allows Service by Email on Former CEO in China of Delaware Entity
In re Heckman Corporation Securities Litigation, C.A. No. 10-378-LPS-MPT (D.Del. Nov. 22, 2011), read opinion here. This decision of the U.S. District Court for the District of Delaware dealt with the issue of whether former counsel for a former corporate officer could be forced to assist in serving process on their former client. The…