Corporate Mergers and Preservation of Privilege – Delaware Chancery Speaks Again
Questions of law and fact continue to evolved regarding post-merger claims of privilege between buyer and seller. A May 29, 2019 Delaware chancery opinion addresses the fact pattern in which the agreement included language preserving the privilege for seller but the seller failed to incur the time and effort needed to actually segregate the privileged materials. See Shareholder Rep. Services LLC v. RSI Holdco, LLC et al., C.A. No. 2018-0517-KSJM (Del. Ch. May 29, 2019). The claim of privilege was sustained as a matter of contract law, despite the more than arguable waiver due to failure to keep the information confidential.