attorney-client privilege in Delaware

2020The interviewee cannot be impeached by the prior statement.”). 63 Zirn v. VLI Corp., 621 A.2d 773 , 782–83 (Del. 1993) (“Third, in view of the general applicability of the attorney-client privilege, there appears to be no alternative source for discovering such information.”).

2020May 2, 2002) (quoting Zirn v. VLI Corp., 621 A.2d 773, 781 (Del. 1993) (“The purpose of the attorney- client privilege is ‘to encourage full and frank communication between clients and their attorneys.’”). 2 That principle does not obtain however, where the holder of the privilege, the client, has chosen to share the communication with a third party. 5 Because that sharing vitiates the integrity of confidential attorney-client communication, it is generally held that the disclosing client has manifested an intent to waive the privilege thereby.6 There are exceptions to this rule, however.

2019Ch. 2004) (“[I]t is often the case that the Court of Chancery will condition its judgment in Section 220 cases on the entry of a reasonable confidentiality order[.]”). 194 Opening Br. 45-48; 430 F.2d 1093 (5th Cir. 1970). 50 privilege in both plenary proceedings and Section 220 actions.195 The Garner doctrine “allows stockholders of a corporation to invade the corporation’s attorney- client privilege in order to prove fiduciary breaches by those in control of the corporation upon showing good cause.”196 Delaware courts applying Garner in the Section 220 context consider: (i) the number of shar

2019Fund IBEW, 95 A.3d 1264, 1278 (Del. 2014). 50 balance of harms.259 With respect to the attorney-client privilege in the context of typical adversary litigants, the harm of vitiating the privilege—chilling candor between lawyer and client—outweighs any interest of the litigants in receiving the communications.

2023The attorney-client privilege protects “legal advice, as opposed to business or personal advice,” and communications, as 207 Pls.’ Opening Br. 27–28, 41–42. 208 See, e.g., Tr. 569:14–570:18 (Habibi); id. at 627:7–19; JX 472 at 166:4–19. 209 JX 411 at 13. 39 opposed to underlying facts.

2021A. SERVIZ WAIVED THE ATTORNEY-CLIENT PRIVILEGE The burden of proving that the attorney-client privilege applies to a particular communication is on the party asserting the privilege.41 In Delaware, waiver occurs when a privilege holder “intentionally discloses or consents to disclosure of any significant part of the privileged or protected communication or information.”42 A disclosure operates as a waiver unless “(1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rect

2021The parties do not appear to dispute whether there is good cause to apply an exception to attorney-client privilege, but the more fundamental question of whether the communications were properly designated as privileged in the first place.93 “The party attempting to withhold discovery bears the burden of showing that the communications fall within the scope of the common-interest doctrine.”94 In the transactional context, the attorney-client privilege will not attach to communications shared with transactional counterparties unless the parties “have interests that are so parallel and non-adver

2019Ch. 2004) (“[I]t is often the case that the Court of Chancery will condition its judgment in Section 220 cases on the entry of a reasonable confidentiality order[.]”). 194 Opening Br. 45-48; 430 F.2d 1093 (5th Cir. 1970). 50 privilege in both plenary proceedings and Section 220 actions.195 The Garner doctrine “allows stockholders of a corporation to invade the corporation’s attorney- client privilege in order to prove fiduciary breaches by those in control of the corporation upon showing good cause.”196 Delaware courts applying Garner in the Section 220 context consider: (i) the number of shar

2017Del. 1975)). 5 Id. 6 D.R.E. 502(b). 7 Riggs, 355 A.2d at 713 (internal citation omitted). 7 privilege is not absolute.”8 Indeed, this reality is explicitly recognized in DRE 502 itself.9 In addition to the codified exceptions to the attorney-client privilege, Delaware recognizes “an oft-invoked exception [that] applies in suits by minority shareholders.”10 This exception—the celebrated “Garner fiduciary exception”— recognizes that “where the corporation is in suit against its stockholders on charges of acting inimically to stockholder interests, protection of those interests as well as those o

2017Del. 1975)). 5 Id. 6 D.R.E. 502(b). 7 Riggs, 355 A.2d at 713 (internal citation omitted). 7 privilege is not absolute.”8 Indeed, this reality is explicitly recognized in DRE 502 itself.9 In addition to the codified exceptions to the attorney-client privilege, Delaware recognizes “an oft-invoked exception [that] applies in suits by minority shareholders.”10 This exception—the celebrated “Garner fiduciary exception”— recognizes that “where the corporation is in suit against its stockholders on charges of acting inimically to stockholder interests, protection of those interests as well as those o

2019Upjohn Co. v. United States , 449 U.S. 383 , 389, 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981) (noting that the purpose of the attorney-client privilege "is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice"); Levy , 577 F.2d at 209 ("The fundamental justification for the sixth amendment right to counsel is the presumed inability of a defendant to make informed choices about the preparation and conduct of his defense.

2019Upjohn Co. v. United States , 449 U.S. 383 , 389, 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981) (noting that the purpose of the attorney-client privilege "is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice"); Levy , 577 F.2d at 209 ("The fundamental justification for the sixth amendment right to counsel is the presumed inability of a defendant to make informed choices about the preparation and conduct of his defense.

2021Sept. 17, 1999). 57 Id. (denying motion where “further depositions may provide the answers [plaintiffs] seek without infringing upon the attorney-client privilege”). 58 Id.; see also Grimes v. DSC Commc’ns Corp., 724 A.2d 561, 569 (Del.

2018July 27, 2017). 7 See D.R.E. 502(d) (enumerating exceptions to the attorney-client privilege). 4 those of the corporation and of the public require that the availability of the privilege be subject to the right of the stockholders to show ‘good cause’ why the privilege should not apply.”8 A corporation invokes the attorney-client privilege through its officers and directors; those individuals owe a duty to the stockholders to exercise the privilege in the best interests of the corporation. 9 On the other hand, “management has a legitimate concern that its confidential communications should be

2025June 30, 2023) (“The court will not allow such tactics, in which a party seeks to use privilege both as a ‘sword’ and as a ‘shield.’”). 16 Tackett, 653 A.2d at 259 (“Waiver of the attorney client privilege may be implicit, even if contrary to the party’s actual intent . . . ‘where it would be unfair to deny the other party an opportunity to discover other relevant facts with respect to that subject matter.’” (quoting Hercules Inc. v Exxon Corp., 434 F. Supp. 136, 156 (D.

1995In the context of the attorney-client privilege, waiver rests on a rationale of fairness, i.e., disclosure of otherwise privileged information by the client under circumstances where “it would be unfair to deny the other party an opportunity to discover other relevant facts with respect to that subject matter.” Hercules Inc. v. Exxon Corp., D.Del., 434 F.Supp. 136, 156 (1977).

2018Pension Fund v. Brown, 988 A.2d 412, 419 (Del. 2010). 19 Id. (internal quotation marks and citation omitted). 5 the at-issue exception is guided by considerations of ‘fairness and discouraging use of the attorney-client privilege as a litigation weapon.’”20 In the oft-repeated cliché, the exception “recognizes that a party cannot use the attorney-client privilege as both a ‘shield’ from discovery and a ‘sword’ in litigation.”21 Nevertheless, a defendant does not waive the privilege simply by denying a plaintiff’s allegations.22 Here, the Plaintiff does not argue that SEP GP injected the privil

2018Pension Fund v. Brown, 988 A.2d 412, 419 (Del. 2010). 19 Id. (internal quotation marks and citation omitted). 5 the at-issue exception is guided by considerations of ‘fairness and discouraging use of the attorney-client privilege as a litigation weapon.’”20 In the oft-repeated cliché, the exception “recognizes that a party cannot use the attorney-client privilege as both a ‘shield’ from discovery and a ‘sword’ in litigation.”21 Nevertheless, a defendant does not waive the privilege simply by denying a plaintiff’s allegations.22 Here, the Plaintiff does not argue that SEP GP injected the privil

2023Section 259(a) of the DGCL provides that when constituent corporations combine in a merger, “all property, rights, privileges, powers and franchises, and all and every other interest shall be thereafter as effectually the property of the surviving or resulting corporation.” The statute uses the word “privileges,” and this court has held that the plain language of that word encompasses the attorney-client privilege.5 5 Great Hill Equity P’rs IV, LP v. SIG Growth Equity Fund I, LLLP, 80 A.3d 155, 158 (Del.

2019Holdco also cites to a white 36 Great Hill, 80 A.3d at 156 . 37 Id. at 162 (“having decided that the attorney-client privilege for the documents passed as a matter of law to the surviving corporation in the merger, these wavier-related arguments need not be addressed”). 38 Id. at 160–61. 39 Delaware courts “will not read a contract to render a provision or term ‘meaningless or illusory.’” Osborn ex rel.

2019This Court applied the Asia Global280 factors to conclude that the executives “cannot invoke the attorney-client privilege for communications exchanged with their personal attorneys and advisors using their work email accounts.”281 In re Information Management Services, Inc. Derivative Litigation ends with a “Cautionary Note” that the opinion only addressed “the case before it” and that it 279 Citadel Holding Corp. v. Roven, 603 A.2d 818, 825 (Del. 1992) (citing D.R.E. 510; Texaco, Inc. v. Phoenix Steel Corp., 264 A.2d 523 (Del.

1995This Court exercises de novo review on the question of whether a trial court correctly applied the attorney-client privilege, Citadel Holding Corp. v. Roven, Del.Supr., 603 A.2d 818, 825 (1992), and the work product doctrine.

2025June 30, 2023) (“The court will not allow such tactics, in which a party seeks to use privilege both as a ‘sword’ and as a ‘shield.’”). 16 Tackett, 653 A.2d at 259 (“Waiver of the attorney client privilege may be implicit, even if contrary to the party’s actual intent . . . ‘where it would be unfair to deny the other party an opportunity to discover other relevant facts with respect to that subject matter.’” (quoting Hercules Inc. v Exxon Corp., 434 F. Supp. 136, 156 (D.

2015Aug. 8, 2008) (internal quotation marks omitted)). 7 See id. (“The [at issue] exception rests upon a fairness rationale” (internal quotation marks omitted)); Tackett, 653 A.2d at 259 (“In the context of the attorney-client privilege, waiver rests on a rationale of fairness”). 8 Tackett, 653 A.2d at 259 (citing 8 John H.

2023Co. of Pittsburgh, 623 A.2d 1118, 1123 (Del.

2000Super., 623 A.2d 1118, 1125 (1992) (same).

2017This is indeed important.”) (citing Valente v. Pepsico, Inc., 68 F.R.D. 361, 367 (D.

1976Valente v. Pepsico, Inc., 68 F.R.D. 361, 367 (D.Del.1975).

2005Sutton, 1996 WL 659002 , at *14-15 (Del.Super.Aug. 30, 1996) (explaining that where a party has substantial need of materials and is unable without due hardship to obtain the substantial equivalent, the court may order production of materials otherwise protected by the work product privilege) citing Tackett v. State Farm Fire & Cas., 558 A.2d 1098, 1102 (Del.Super.1988) ("Where the benefit to the resolution of the case outweighs the potential injury to the party from whom discovery is sought, disclosure may be required.”).

1992See, e.g., Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136, 156 (D.Del.1977); Tackett v. State Farm Fire & Cas., Del.Super., 558 A.2d 1098, 1104 (1988); Jules Jurgensen/Rhapsody Inc. v. Rolex Watch U.S.A., Inc., E.D.Pa., C.A.

2019This Court applied the Asia Global280 factors to conclude that the executives “cannot invoke the attorney-client privilege for communications exchanged with their personal attorneys and advisors using their work email accounts.”281 In re Information Management Services, Inc. Derivative Litigation ends with a “Cautionary Note” that the opinion only addressed “the case before it” and that it 279 Citadel Holding Corp. v. Roven, 603 A.2d 818, 825 (Del. 1992) (citing D.R.E. 510; Texaco, Inc. v. Phoenix Steel Corp., 264 A.2d 523 (Del.

2001It is tine that an attorney-client privilege may be waived by the public disclosure of information that was formerly confidential; Texaco, Inc. v. Phoenix Steel, 264 A.2d 523 , (Del.Ch.1970).

1963Such report and photographs were submitted to Prickett and are now in their possession.” The leading case in Delaware on the attorney-client privilege is Wise v. Western Union Telegraph Company, 6 W.W.Harr. 456 , 178 A. 640 (Supr.1935) In that case Judge Rodney said ( 6 W.W.Harr. 465 , 178 A. 644 ) : “* * * The privilege which is relied upon to prevent the production of the documents is that privilege which had its origin in the relationship of attorney and client, was founded on public policy and drew its strength from the fact that, as legal procedure became complicated and intricate, it was

1963Such report and photographs were submitted to Prickett and are now in their possession.” The leading case in Delaware on the attorney-client privilege is Wise v. Western Union Telegraph Company, 6 W.W.Harr. 456 , 178 A. 640 (Supr.1935) In that case Judge Rodney said ( 6 W.W.Harr. 465 , 178 A. 644 ) : “* * * The privilege which is relied upon to prevent the production of the documents is that privilege which had its origin in the relationship of attorney and client, was founded on public policy and drew its strength from the fact that, as legal procedure became complicated and intricate, it was

2023The Board Chair and Panel Chair correctly determined that these communications were discoverable under In re Kennedy.114 As the Board Chair and Panel also recognized, Jenney waived the attorney-client privilege for these communications at the April 13, 2015 hearing in the Court of Chancery by voluntarily testifying that Abbott advised him to transfer the Properties so he would not have to comply with the court order.115 Contrary to Abbott’s contentions, Chief Disciplinary Counsel’s reference to other communications between Abbott and Jenney, which the Panel later found to be privileged and ina

2023The Board Chair and Panel Chair correctly determined that these communications were discoverable under In re Kennedy.114 As the Board Chair and Panel also recognized, Jenney waived the attorney-client privilege for these communications at the April 13, 2015 hearing in the Court of Chancery by voluntarily testifying that Abbott advised him to transfer the Properties so he would not have to comply with the court order.115 Contrary to Abbott’s contentions, Chief Disciplinary Counsel’s reference to other communications between Abbott and Jenney, which the Panel later found to be privileged and ina

2026Ch. 2023). 11 See Dkt. 105 at 10:7–11:24. 12 See Hyde Park, 292 A.3d at 184 (“The bottom line for the attorney-client privilege is that under the joint client approach, the investor presumptively joins the director within the circle of confidentiality, and the corporation cannot invoke the privilege against the investor for materials created during the director’s tenure.”). 13 See Max-Planck-Gesellschaft Zur Foerderung der Wissenschaften E.V. v. Wolf Greenfield & Sacks, PC, 736 F. Supp. 2d 353, 362 (D.

2024See Subpoena II(5). 69 314 A.2d at 201 . 70 See generally Opp’n to Mot. to Enforce 14-43. 71 See supra Section A(1). 72 See Mot. to Enforce ¶ 13. 73 Compare Johnson v. State, 983 A.2d 904, 920 (Del. 2009) (holding that the AG’s subpoena seeking copies of defendant’s mail while he was an inmate was reasonable under the test in Blue Hen because the State was investigating whether the defendant was contacting a potential witness); State v. Salasky, 2013 WL 5487363 , at *15 (Del.

2024See Subpoena II(5). 69 314 A.2d at 201 . 70 See generally Opp’n to Mot. to Enforce 14-43. 71 See supra Section A(1). 72 See Mot. to Enforce ¶ 13. 73 Compare Johnson v. State, 983 A.2d 904, 920 (Del. 2009) (holding that the AG’s subpoena seeking copies of defendant’s mail while he was an inmate was reasonable under the test in Blue Hen because the State was investigating whether the defendant was contacting a potential witness); State v. Salasky, 2013 WL 5487363 , at *15 (Del.