The Delaware Court of Chancery recently affirmed that communications in which legal advice predominates and cannot be segregated from business advice may be withheld under the attorney-client privilege.
In a letter opinion, Vice Chancellor Parsons discussed three categories of allegedly privileged documents. The first set included communications with a corporation’s in-house counsel who served as both a business and legal advisor. The second category included communications among the corporation’s non-lawyer employees who purportedly intended to seek legal advice relating to the dispute at issue. The third set consisted of communications among the corporation’s non-lawyer employees who were providing or seeking information to facilitate legal advice.
Rather than classify each category as privileged or not, Vice Chancellor Parsons considered the documents individually. The court explained that “where business and legal advice are inseparable in a communication – or the communication includes individuals serving in both business and legal advisory roles – the communication will be considered privileged only if the legal aspects predominate.” The court also noted that communications containing both business and legal advice “must be produced with the legal-related portions redacted” if such segregation is possible. Communications that involve only business matters, however, must be produced even if a party’s legal advisor is a party to the communication. MPEG LA, L.L.C. v. Dell Global B.V. and Dell Products, L.P., C.A. No. 7016-VCP (Del. Ch. Dec. 9, 2013).