Privilege

Privilege

Thomas E. Spahn | McGuireWoods LLP

Corporate stock and asset sale transactions necessarily implicate ownership of: (1) ordinary day-to-day privileged communications about environmental matters, labor matters, etc., and (2) privileged communications about the transactions themselves. Buyers and sellers normally agree that the buyer should receive the first type, but disputes frequently arise about the second type.

Privilege

Thomas E. Spahn | McGuireWoods LLP

Many courts have dealt with corporate and other organizational entities’ constituents’ ability to waive those entities’ privilege protection. In the corporate context, most courts hold that any constituent (even middle management, etc.) trusted to handle privileged communications can waive the corporation’s privilege -- if she acted in the corporation’s interest rather than adverse to its interest.

Privilege

Thomas E. Spahn | McGuireWoods LLP

McguireWoods' previous Privilege Point described a favorable Delaware state court decision finding that a post-reorganization trust and its largest stakeholder could rely on the common interest doctrine to protect their communications – because they shared a common legal rather than just a common financial interest. Highlighting the unpredictability of the common interest doctrine, another Delaware state court took a much narrower view just a few months later.