No Directors, No Officers, No Employees And No Agents – Now What?

by Allen Matkins
Contact

Occasionally, a corporation may find itself with no directors and no management. Yet, the corporation does not cease to exist.

One might wonder what use can there be in a corporation deprived of head and limb. In Melendrez v. Superior Court, 2013 Cal. App. LEXIS 343 (April 30, 2013), the corporation was maintained as a shell through which personal injury claims could be passed on to insurers. A problem arose, however, when discovery was propounded on the corporation. The corporate attorney responded but “represented to the court that the responses could not be verified, as the corporation had no officer, director, employee, or agent who could verify the discovery responses.” The trial court agreed that, under the circumstances, no individual existed who could verify the responses, and, at the corporation’s request, simply deemed them verified. The plaintiff took a writ.

The Court of Appeal first noted that an attorney can in fact verify responses on behalf of a corporation. See Cal. Code Civ. Proc. §§ 2030.250(b) & 2033.260(b). But, there’s a “but” (and there’s usually a “but”). The “but” in this case is that when an attorney does so, there is a limited waiver of the attorney-client privilege. Because the holder of the privilege is the corporation, it is for the corporation, not the attorney, to decide whether to waive the privilege. See Cal. Evid. Code § 953. When there are no directors or officers to ask, obtaining this waiver presents an obvious practical problem.

Writing for the Court, Justice H. Walter Croskey concluded that the trial court should simply try harder:

The trial court should first determine whether SECO is still in existence beyond being a shell for the transmission of insurance claims to its insurers. If so, the court should direct SECO’s counsel to seek the election or appointment of a new director for SECO, who would hold SECO’s attorney-client privilege. If not, SECO’s insurers hold its attorney-client privilege. Once the privilege holder is identified, that individual or entity should be given an opportunity to decide whether to waive the privilege for the limited extent necessary for SECO’s counsel to verify its discovery responses. If SECO chooses not to waive the privilege, the unverified discovery responses cannot be deemed verified, and the court should proceed to rule on Melendrez’s motions as it would on any discovery motions when the responses are unverified.

I’m confused by the first step of the Court’s instruction, which implies that a corporation may be in existence but not sufficiently so as to hold the attorney-client privilege.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Allen Matkins | Attorney Advertising

Written by:

Allen Matkins
Contact
more
less

Allen Matkins on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.