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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Delaware Legal Ethics

1.6 Rule 1.6 Confidentiality of Information

1.6:100 Comparative Analysis of Delaware Rule

1.6:101 Model Rule Comparison

The language and much of the reasoning behind Delaware’s Rule 1.6 is the same as the Model Rule’s Rule 1.6. The only textual difference occurs in the notes. The end of Comment [8] is changed so as “to address concerns about a lawyer’s discretion to disclose information related to a client’s continuing crime or fraud.” Memorandum: “New Delaware Lawyers’ Rules of Professional Conduct, Supreme Court of Del.”, April 29, 2003. Comment [12] adds a specific example of where Delaware law requires disclosure. Del Code. Ann. tit. 29, § 9007A(c) (2003) (attorney acting as guardian of children to protect the child’s best interests). Also, the wording to Comment [13] differs somewhat from the Model Rule comment, but appears to have the same intent.

1.6:102 Model Code Comparison

Rule 1.6 merged the two-pronged duty under Model Code DR 4-101 into one duty regarding information “relating to representation.” Rule 1.6 also eliminates the requirement that the information be specified by the client as confidential.

Rule 1.6(a) allows for inferred consent to disclose, while DR 4-101(B) required actual consent to reveal “confidences.” Rule 1.6(b) refers to degrees of harm when a client committs a crime, while under DR 4-101(B) and (C), disclosure was allowed regardless of the seriousness of the proposed crime. Rule 1.6(b) also enlarges the acceptable disclosures for cases between the lawyer and the client, beyond just fee disputes noted in DR 4-101(C)(4).

1.6:200 Professional Duty of Confidentiality

Comment [2] “A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation. . . . This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.” DLRPC 1.6 cmt. 2.

1.6:210 Definition of Protected Information

Comment [3] “ . . . The confidentiality rule…applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. . . .” DLRPC 1.6 cmt. 3.

Under the Delaware Rules of Evidence, a communication is “confidential if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client of those reasonably necessary for the transmission of the communications.” Del. R. Evid. 502(a)(2) (2004).

A client’s name can be considered confidential information in certain instances, such as domestic relations cases because “matters involving divorce and domestic relations law are private concerns.” Brett v. Berkowitz, 706 A.2d 509, 515 (Del. 1998).

Information sent by a lawyer regarding a prior case, to a client in preparation to defend against current litigation, is privileged. Ramada Inns, Inc. v. Dow Jones & Co., 523 A.2d 968, 72-3 (Del. Super Ct. 1986). In Ramada, the court found that a deposition from a prior case that was sent from a lawyer to the management and/or editors of a paper to facilitate a litigation defense in a current case, was confidential. Id. at 972-3. The deposition addressed the practices of one of the reporters at the center of the current case. Id.

It has been held that the communication from a former client to a lawyer, after the lawyer has told the former client that the lawyer cannot represent the client, is not confidential. Thus the lawyer in these situations has no duty to hold the information confidential. Delaware v. Outten, 1992 Del. Super. LEXIS 484, at 13-4 (Del. Super. Ct. Dec. 1, 1992).

“[W]here a lawyer [is] expressly authorized by his client to communicate to opposing counsel matters to be considered in negotiations for settlement of a controversy, such matters [are] not confidential communications protected by attorney/client privilege.” Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992).

1.6:220 Lawyer’s Duty to Safeguard Confidential Client Information

Comment [16] “A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1 and 5.3.” DLRPC 1.6 cmt. 16.

Comment [17] “When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.” Id. cmt. 17.

The lawyer must safeguard communications with the lawyer’s client that the client intends to be confidential. Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992). This does not include communications the client agrees can be shared with opposing counsel in settlement negotiations. Id. However, the duty does pertain to reasons the client might give for not signing a negotiated agreement and any specific advice the lawyer might have given the client for not doing so. Id. at 73

1.6:230 Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

No relevant information available.

1.6:240 Use or Disclosure of Confidential Information of Co-Clients

In Nemours Found. v. Gilbane Bldg. Co., the Court, applying Delaware’s Rules of Professional Responsibility, found that the attorney of one of the former co-clients must protect confidential information and thus was disqualified from representing both former co-clients when their interests became adverse. 632 F. Supp. 418, 422 (Del D. 1986). The Court came to this conclusion because the attorney had been “privy to confidences of both” clients and that the clients’ “‘commonality of interest’ necessitated a sharing of work product, privileged information, and other confidential information.” Id.

1.6:250 Information Imported in Lawyer Counseling Programs

No relevant information available.

1.6:260 Information Learned Prior to Becoming a Lawyer

In an ethics opinion by a committee of the Delaware State Bar Association, it was held that information a law student obtained while working for a firm prevented that student from working on anything related to the litigation when acting as a lawyer with another firm representing the other party to the litigation. The opinion stated that the new law firm may insolate the new lawyer and prevent its other lawyers from being disqualified through imputation. Delaware State Bar Association, Committee on Profession Ethics, Opinion 1986-1.

1.6:300 Exceptions to Duty of Confidentiality—In General

1.6:310 Disclosure to Advance Client Interests or with Client Consent

Comment [14] “Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.” DLRPC 1.6 cmt. 14.

The Delaware Superior Court found it was not a violation of a client’s confidence when a lawyer told the client’s family about misgivings the client was having in agreeing to a plea agreement. The Court held that consent was given when the client gave the OK to see his mother “and other key family members . . . to facilitate a full discussion of his [plea] agreement.” Delaware v. Melendez, No. 04104020056, 2003 Del. Super. LEXIS 409, *37-8 (Del. Super. Ct. Dec. 19, 2003), aff’d on other grounds, Melendez v. State, 2004 Del. LEXIS 377 (Del. Aug. 25, 2004).

Under Delaware law, the position of attorney guardian ad litem can be created. Those holding this position represent the child’s court appointed guardian, or guardian ad litem, and as such, do not represent the child. Thus, an attorney guardian ad litem can act in a manner deemed best for the child, regardless of the wishes of the child. A committee of the Delaware State Bar Association raised concerns as to whether young children could understand this difference when giving confidential information to their lawyers. Delaware State Bar Association, Committee on Professional Ethics, Opinion 2001-1.

1.6:320 Disclosure When Required by Law or Court Order

Comment [12] “Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to comply with the law. See, e.g., 29 DEL. CODE ANN. § 9007A(c) (which provides that an attorney acting as guardian ad litem for a child in child welfare proceedings shall have the “duty of confidentiality to the child unless the disclosure is necessary to protect the child’s best interests”).” DLRPC 1.6 cmt. 12.

Comment [13] “Paragraph (b)(6) also permits compliance with a court order requiring a lawyer to disclose information relating to a client’s representation. If a lawyer is called as a witness to give testimony concerning a client or is otherwise ordered to reveal information relating to the client’s representation, however, the lawyer must, absent informed consent of the client to do otherwise, assert on behalf of the client all nonfrivolous claims that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court's order.” Id. cmt. 13

It is not a violation of Rule 1.6 for a lawyer to have answered questions under court order, under cross-examination, after objecting and being overruled, when that ruling to deny the objection is later overturned by an appellate court. Moyer v. Moyer, 602 A.2d 68, 73 (Del. 1992).

1.6:330 Disclosure in Lawyer’s Self-Defense

The Delaware Office of Disciplinary Council found that disclosure of confidential information was not done in “self-defense” when a lawyer included a detailed letter from the client to the lawyer with a motion to a judge for the lawyer to withdraw as counsel. Inclusion was “beyond what was necessary to support the motion to withdraw,” and even if it was necessary, it could have been shown to the court privatly and not in an open motion. Delaware Office of Disciplinary Council, Private Admonition, Board Case No. 6, 1995, July 14, 1995.

1.6:340 Disclosure in Fee Dispute

Comment [11] “A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.” DLRPC 1.6 cmt. 11.

The exception of allowing disclosure in a fee dispute does not pertain to situations where failure to recover a fee stems from court decisions under Del. Code. Ann. 19 §2127(a) (2004). Exume v. Mountaire of Delmarva, No. 90A-FE-1, 1991 Del. Super. LEXIS 176, *10-11 (Del. Super. Ct. May 1, 1991). This statute deals with situations where a client refuses to settle and the final award is less than the prior settlement offer. In these situations, the lawyer is not permitted to share confidential client information to show that the lawyer advised the client to accept the offer, but that the client refused. Id. at *10-11. The lawyer should raise a “reasonableness” argument for fees and require that the determination of the fee be based on the factors listed in General Motors Corp. v. Cox, 304 A.2d 55 (Del. 1973). Id.

1.6:350 Disclosure to Prevent a Crime

Comment [7] “Paragraph (b)(2) is a limited exception to the rule of confidentiality that permits the lawyer to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or a fraud, as defined in Rule 1.0(d), that is reasonably certain to result in substantial injury to the financial or property interests of another and in furtherance of which the client has used or is using the lawyer’s services.” DLRPC 1.6 cmt. 7.

1.6:360 Disclosure to Prevent Death or Serious Bodily Injury

Comment [6] “ . . . Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.” Id. cmt. 6.

1.6:370 Disclosure to Prevent Financial Loss

see 1.6:350 Disclosure to Prevent a Crime

1.6:380 Physical Evidence of Client Crime [see 3.4:210]

Rule 3.4 provides that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.” DLRPC 3.4(a). The Delaware Superior Court in People v. Burrell, noted in dicta that evidence of a crime, presented by the defendant client to his attorney, is “not subject to privilege and must be delivered to the prosecution . . .” 1999 Del. Super. LEXIS 370, *20-21 (Del. Super. Ct. Aug. 16, 1999).

1.6:390 Confidential and Conflict of Interest

Rule 1.9. Duties to former clients. b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter. DLRPC 1.9. To do so would “cast a substantial threat of taint over the integrity of [the] litigation.” Bowden v. Developers Diversified Realty, C.A. No. 97C-10-020WLW, 1999 Del. Super. LEXIS 423, *8 (Del. Super. Ct. July 1, 1999).

Rule 1.10. Imputation of conflicts of interest: General rule. When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. DLRPC 1.10.

1.6:395 Relationship with Other Rules

Comment [1] “This Rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer's representation of the client. See Rule 1.18 for the lawyer's duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal information relating to the lawyer's prior representation of a former client, and Rules 1.8(b) and 1.9(c)(1) for the lawyer's duties with respect to the use of such information to the disadvantage of clients and former clients.” DLRPC 1.6 cmt. 1.

Comment [15] “ . . . A lawyer's decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See Rule 3.3(c).” Id. cmt. 15.

Rule 1.8. Conflict of Interest: Current Clients: Specific Rules. (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (3) information relating to representation of a client is protected as required by Rule 1.6.

Rule 1.9. Duties to former clients. b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter. To do so would “cast a substantial threat of taint over the integrity of [the] litigation.” Bowden v. Developers Diversified Realty, C.A. No. 97C-10-020WLW, 1999 Del. Super. LEXIS 423, *8 (Del. Super. Ct. July 1, 1999).

Rule 1.10. Imputation of conflicts of interest: General rule. When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. DLRPC 1.10.

Rule 1.14. Client with diminished capacity. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

Rule 2.3. Evaluation for use by third persons. (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to an evaluation is otherwise protected by Rule 1.6. DLRPC 2.3.

Rule 3.3. Candor toward the tribunal. (c) The duties stated in paragraph (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. DLRPC 3.3.

Rule 4.1. Truthfulness in statements to others. In the course of representing a client a lawyer shall not knowingly: (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. DLRPC 4.1.

Rule 8.1. Bar admission and disciplinary matters. A lawyer shall not (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admission or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6. DLRPC 8.1.

Rule 8.3. Reporting professional misconduct. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6. DLRPC 8.3.

1.6:400 Attorney-Client Privilege

“In Delaware, although the attorney-client privilege is highly regarded, it is not absolute, and must yield to the interests of justice.” Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 623 A.2d 1118, 1123 (Del. Super. Ct. 1992). “The purpose of the attorney-client privilege is to allow potential litigants to obtain legal counsel uninhibited by any fear such confidential communications might be disclosed. The privilege serves the important public policy of facilitating free discussions between a client and attorney and should not be lightly disregarded.” Finley Assocs. v. Sea & Pines Consol. Corp., 714 F. Supp. 110, 117 (D. Del. 1989).

The Delaware Rules of Evidence differ from federal cases to the extent that they depart from the efforts to narrow the lawyer-client privilege. Ramada Inns, Inc. v. Dow Jones & Co., 523 A.2d 968, 971 (Del. Super Ct. 1986).

For a history behind the attorney-client privilege, see Clausen v. National Grange Mut. Ins. Co., 730 A.2d 133, 136-8 (Del. Super. Ct. 1997).

1.6:410 Privileged Communications

Under Delaware Rules of Evidence, “[a] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or the client’s representative and the client’s lawyer or the lawyer’s representative, (2) between the lawyer and the lawyer’s representative, (3) by the client or the client’s representative or the client’s lawyer or a representative of the lawyer to a lawyer or representative of a lawyer representing another in a matter of common interest, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.” Del. R. Evid. 502(b) (2004). Said another way, “[t]he standard for invoking the attorney-client privilege is as follows: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.” Davenport Group v. Strategic Investment, C.A. No. 14426-NC, 1995 Del. Ch. LEXIS 109, *1-2 (Del. Ch. Aug. 24, 1995) (claim dismissed by Davenport Group MG, L.P. v. Strategic Inv. Partners, 685 A.2d 715, 1996 Del. Ch. LEXIS 6 (Del. Ch. 1996), aff’d, Davenport Group MG, L.P. v. Citibank, N.A., 687 A.2d 194, 1996 Del. LEXIS 346 (Del. 1996)) (following United States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D. Mass. 1950).

“The word ‘communications’ has been defined to include any means by which information or though is conveyed from one person to another,” including the “sending or handing [of] written material to another person . . .” Ramada Inns, Inc. v. Dow Jones & Co., 523 A.2d 968, 971-2 (Del. Super Ct. 1986). This includes “all communications, whether written or oral, made for the purpose of facilitating the rendition of professional legal services.” Zirn v. VLI Corp., 621 A.2d 773, 781 (Del. 1993). It also can include preliminary drafts of board meeting documents, the final version of which were meant for public disclosure. Lee v. Engle, C.A. No. 13323, 1995 Del. Ch. LEXIS 149, *18 (Del. Ch. Dec. 15, 1995), clarified by Lee v. Engle, 1998 Del. Ch. LEXIS 122 (Del. Ch. June 19, 1998). It also does not need to be confidential “in the sense of being unknown or unknowable by anyone else.” Raley v. Stango, C.A. No. 1047, 1985 Del. Ch. LEXIS 514, *3 (Del. Ch. Sept. 13, 1985).

“The privilege only protects the communications themselves and does not prevent disclosure of the underlying facts which are the substance of the communications,” in other words, a client cannot refuse to answer a question about a fact that just happens to be included in a communication with the client’s lawyer and a “party may be compelled to disclose relevant information even when the information was received through a communication which is itself confidential.” Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 623 A.2d 1118, 1122 (Del. Super. Ct. 1992).

“In order for a communication to be privileged, it is essential that the client expressly make the communication confidential or make it under circumstances such that he could reasonably assume it would be kept confidential.” Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 623 A.2d 1118, 1122 (Del. Super. Ct. 1992). Preparing that same “communication with the intention or expectation that it will be revealed to another person, who is not necessary for the rendition of the legal services or communication” will render it lacking in confidentiality and thus not covered by the privilege. Id. at 1122. In Hoechst, an insurance company was defending and indemnifying a company against certain claims, but over a period of time that relationship soured to a point where the insurer refused to pay for additional claims. The court found that communications between the company and its lawyer were not privileged for the period where the company was still expecting the insurers to defend and indemnify them, because the company “could not reasonably expect the insurers to provide a defense and indemnify [the company] for its claims without having access to information about the claims through the communications . . .” Id. at 1122-3.

“The attorney-client privilege only protects legal advice, as opposed to business or personal advice.” Lee v. Engle, C.A. No. 13323, 1995 Del. Ch. LEXIS 149, at *4-5 (Del. Ch. Dec. 15, 1995), clarified by Lee v. Engle, 1998 Del. Ch. LEXIS 122 (Del. Ch. June 19, 1998). When the communication contains a mixture of business and legal advice, such that it “is not readily divisible into separate categories,” it may still be regarded as privileged. Sealy Mattress Co. of New Jersey, Inc. v. Sealy Inc., C.A. No. 8853, 1987 Del. Ch. LEXIS 451, *7 (Del. Ch. June 19, 1987). But “in each instance it must be established that a [communication] was made for the sole or primary purpose of facilitating legal services. SIPCA Holdings S.A. v. Optical Coating Laboratory, Inc., C.A. No. 15129, 1996 Del. Ch. LEXIS 118, *8 (Del. Ch. Sept. 23, 1996) (motion to compel denied SICPA Holdings, S.A. v. Optical Coating Lab., 1996 Del. Ch. LEXIS 137 (Del. Ch. Oct. 10, 1996)).

An example of a time when communication would not be privileged: “A meeting is held to consider [‘a competitor announcing a new product line or the companies stock being accumulated’]. Representatives of relevant or affected aspects of the corporation are present (e.g. finance, marketing, legal, and perhaps others) to contribute to a correct definition of the problem, designing of a responsive strategy and the implementation of it. A lawyer will be expected to contribute appropriate observations at such a meeting . . . At the conclusion of the meeting a plan is adopted and then implemented. Litigation against the corporation follows in which the reasons the company pursued this plan are relevant. . . . The discussions that occur at our hypothetical corporate meeting are discussions among a body of persons for the purpose of formulating an appropriate business strategy. As such they are, in a sense, ultimately disclosures for the benefit of the responsible business decision-maker. Legal considerations may, of course, play a part in the formulation of a business policy or strategy, but unless the claimant of a privilege can specifically identify a disclosure made specifically to a lawyer for the purpose of assisting in the rendition of legal services (and not made at the meeting for the purpose of business strategy), the fact that a lawyer gave incidental (or important) advice in the course of such a meeting does not protect disclosure of statements made at the meeting.” SIPCA Holdings S.A. v. Optical Coating Laboratory, Inc., C.A. No. 15129, 1996 Del. Ch. LEXIS 118, *5-7 (Del. Ch. Sept. 23, 1996).

The burden is on the person claiming attorney-client privilege to establish that the communication meets the requirement to be covered by the privilege. Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992). “[T]hat burden is particularly difficult where none of the indicia of a legal communication appear on the document’s face.” In re Circon Corp., Consol. C.A. No. 15165, 1998 Del. Ch. LEXIS 121, *11 (Del. Ch. July 6, 1998). In Circon, the Court found no privilege, Id. at *19-20, for documents that were not addressed to the attorney and did “not ask legal questions or respond to legal advice.” Id. at *14. In Balin v. Amerimar Reality Co., despite the fact that the moving party “had instructed his secretary not to show the memoranda to anyone, the documents in question were labeled ‘strictly confidential’ and kept on a separate computer disk rather than on the company’s computer network, and the disk was normally stored in a locked file,” no privileged attached because the disk contained several memoranda that were not claimed as privilege, the memorandum was not addressed to the attorney although other privileged ones were, it was not sent to the attorney until the following week, and the “secretary could not recall any special instructions on how to handle the memoranda.” C.A. No. 12896, 1995 Del. Ch. LEXIS 41, *24-27 (Del Ch. Apr. 10, 1995). The Court stated that all the moving party needed to have done was “address the memoranda to his attorney and separate the ‘privileged’ memoranda from the nonprivileged ones.” Id. at 27. By so addressing the memorandum, it would have created a prima facie case “that the communication was confidential and made to facilitate the rendition of professional legal services,” thus deserving attorney-client privilege protection.” Id. at 29.

The court can look to other extrinsic evidence and infer from the circumstances that communications are between a lawyer and client when, on their face, the documents do not suggest such. In re Circon Corp., Consol. C.A. No. 15165, 1998 Del. Ch. LEXIS 121, *15 (Del. Ch. July 6, 1998).

1.6:420 Privileged Persons

“[Attorney-client] privilege belongs to the client, but the client may, expressly or implicitly, waive the protections afforded by the privilege.” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 259 (Del. 1995). Under Delaware rules of evidence, privilege “may be claimed by the client, the client’s guardian or conservator, the personal representative of a deceased client or the successor, trustee or similar representative of a corporation, association or other organization, whether or not in existence. A person who was the lawyer or the lawyer’s representative at the time of communication is presumed to have the authority to claim the privilege but only on behalf of the client.” Del. R. Evid. 502(c) (2004).

Under Delaware Rules of Evidence, the privilege can extend to the principle’s agents. Del. R. Evid. 502(b) (2004). Delaware has followed the U.S. Supreme Court in Upjohn Co. v. United States, 449 U.S. 383 (1981) and rejected the “control group test” in corporate attorney-client privilege, in favor of allowing privilege to be maintained when those seeing the communication are deemed essential in knowing the contents of the communications. Int’l Bus. Machines Corp. v. Comdisco, Inc., C.A. No. 91-C-07-119, 1992 Del. Super. LEXIS 67, at *4-5 (Del. Super. Ct. 1992) following James Julian, Inc. v. Ratheon Co., 93 F.R.D. 138, 7 (D. Del. 1982).

In American Legacy Found. v. Lorillard Tobacco Co., the court found that due to the close relationship between a public relation firm and the company’s lawyer, “confidential communication with a public relations firm may be protected by attorney-client privilege.” C.A. No. 19406, 2004 Del. Ch. LEXIS 157, at *20-1 (Del. Ch. Nov. 3, 2004). Ultimately, however, the court found that the company had not met its burden since it failed to show that the confidential communication related to legal advice. Id. at 19.

“[W]hen an attorney has been retained to represent both insured and insurer in a third-party action, communications by either party will not be privileged as to the other, even if their interests later diverge.” Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 623 A.2d 1118, 1124-5 (Del. Super. Ct. 1992).

See 1.6:470 Privilege for Organizational Clients; 1.6:475 Privilege for Governmental Clients; and 1.6:480 Privilege of Co-Clients for other examples and explanations of “privileged person.”

1.6:430 Communications “Made in Confidence”

In a libel case, material passed from a lawyer to the management and/or editors of the lawyer’s client was considered to be done in confidence and “not [to] be divulged outside the management-editorial circle.” Ramada Inns, Inc. v. Dow Jones & Co., 523 A.2d 968, 972 (Del. Super Ct. 1986).

In an ethics opinion of a committee of the Delaware State Bar Association, the committee found that a lawyer may make communications in confidence when using email or a cell phone absent extraordinary circumstances. The test they proposed was whether the lawyer reasonably anticipated the possibility of interception and used the example of sharing email accounts with another. To determine if an extraordinary circumstance exists, they suggest the lawyer determine if there is a significant risk of inadvertent disclosure, and if not, then the communication can generally be made in confidence using email or a cell phone. Delaware State Bar Association, Committee on Professional Ethics, Opinion 2001-2.

In Int’l Bus. Machines Corp. v. Comdisco, Inc., the Court found that an e-mail containing confidential information remained confidential “although several persons were copied on the communications, [because] these people had a need to know the information in the memo to perform their duties.” C.A. No. 91-C-07-199, 1992 Del. Super. LEXIS 67, at *4-5 (Del. Super. Ct. Mar. 11, 1992).

1.6:440 Communications from Lawyer to Client

Under Delaware Rules of Evidence, confidentiality applies “equally to a communication made by the client to the attorney and to a communication made by the attorney to the client.” Ramada Inns, Inc. v. Dow Jones & Co., 523 A.2d 968, 972 (Del. Super Ct. 1986).

1.6:450 Client Identity, Whereabouts, and Fee Arrangements

“As a general rule, the client’s identity is incidental to the attorney-client relationship. Therefore, it is not usually protected from discovery under the attorney-client privilege.” Brett v. Berkowitz, 706 A.2d 509, 514 (Del. 1998). “A client’s identity is privileged information in exceptional cases: (1) where revealing the identity would provide the ‘last link’ in the chain of evidence leading to the conclusion that the client had committed a crime; and (2) where the revelation of the client’s identity would simultaneously reveal ‘confidential communications’ between the lawyer and client.” Id. at 514. In the “last link” exception, “[t]he lawyer refuses to reveal the identity of the client because doing so may cause criminal charges to be brought against the client.” Id. at 514. The second exception exists for cases such as domestic relation cases. In those cases “discovery would disclose simultaneously that those female clients were either considering divorce or in need of advice in a domestic relations matter. Because of the privacy interests of clients seeking advice in those areas, the disclosure of their identities would be a violation of the attorney-client privilege.” Id. at 515. In Brett, a woman alleging her attorney sexually harassed her was denied a request to compel discovery of the names of other female clients of the attorney to see if she could find others to have similarly suffered. Id. at 513.

1.6:460 Legal Assistance as Object of Communication

When a former client communicates with a former lawyer, when the lawyer has clearly stated that the lawyer cannot represent the client, the communication is not for legal assistance and thus not privileged. Delaware v. Outten, 1992 Del. Super. LEXIS 484, at 13-4 (Del. Super. Ct. Dec. 1, 1992).

1.6:470 Privilege for Organizational Clients

“The attorney-client privilege finds full application where a corporation is the client seeking professional advice and assistance.” Zirn v. VLI Corp., 621 A.2d 773, 781 (Del. 1993). “The corporation may only assert the privilege through its agents, i.e. its officers and directors, who must exercise the privilege in a manner consistent with their fiduciary duty to act in the best interests of the corporation and not for themselves as individuals. Thus, the privilege . . . is not absolute and, if the legal advice relates to a matter which becomes the subject of a suit by a shareholder against the corporation, the invocation of the privilege may be restricted or denied entirely.” (citations omitted) Id. at 781. (for exceptions and further explanation see 1.6:650 Exception for Organizational Fiduciaries).

“[A]s a general matter, a corporation cannot assert the privilege to deny a director access to legal advice furnished to the board during the director’s tenure,” Moore Bus. Forms, Inc., v. Cordant Holdings Corp., C.A. Nos. 13911 & 14595, 1996 Del. Ch. LEXIS 56, *12 (Del. Ch. June 4, 1996), unless it is done “by an ex ante agreement among the contracting parties.” Id. at *16. To do otherwise would be analogous to allowing “privilege to be asserted against the client.” Id. at *18. In Moore Business Forms, Inc. the Court found that even when the director had recused himself when the material being claimed as privileged was discussed, the director still had access to privileged information, because he recused himself out of courtesy so the board could have a frank discussion, with the understanding that no board action would be taken when he was gone. Id. at *19-20.

On the other hand, in SBC Interactive, Inc. v. Corp. Media Partners, the Court held that the partnership could invoke attorney-client privilege against a partner when the partner had initiated the partner’s right to withdraw from the partnership. C.A. No. 15987, 1997 Del. Ch. LEXIS 170, *12 (Del. Ch. Dec. 8, 1997) (summary judgment granted, SBC Interactive v. Corporate Media Partners, 1997 Del. Ch. LEXIS 180 (Del. Ch. Dec. 24, 1997), aff’d, SBC Interactive v. Corporate Media Partners, 714 A.2d 758, 1998 Del. LEXIS 302 (Del. 1998)). The court pointed to the lack of evidence that the partner considered the partnership’s attorney as the partner’s attorney, the fact that the interests of the partner and partnership were undeniably different at the time the privileged information was drafted, and the partner’s actions were consistent with these facts. Id. at *11. The court found that there was no expectation or reliance on behalf of the partner or the partnership’s attorney. Id. at *13.

In determining to whom privilege extends in an organization, Delaware follows Upjohn Co. v. United States, 449 U.S. 383 (1981), which rejected the “control group test” in corporate attorney-client privilege, and stated privilege is maintained when those copied on the communication are deemed essential in knowing the contents of the communications. Int’l Bus. Machines Corp. v. Comdisco, Inc., C.A. No. 91-C-07-119, 1992 Del. Super. LEXIS 67, at *4-5 (Del. Super. Ct. 1992) following James Julian, Inc. v. Ratheon Co., 93 F.R.D. 138, 7 (D. Del. 1982).

The privilege of a Homeowners’ Association does not extend to all the property owners within the Association, but rather to the Association itself through its officers. Cove on Herring Creek Homeowners’ Association, Inc. v. Riggs, 2001 Del. Ch. LEXIS 157, *4-5 (Del. Ch. Dec. 28, 2001) (summary judgment granted, Cove on Herring Creek Homeowners' Ass'n v. Riggs, 2003 Del. Ch. LEXIS 36 (Del. Ch. Apr. 9, 2003), aff’d, Riggs v. Cove on Herring Creek Homeowners Ass'n, 832 A.2d 1252, 2003 Del. LEXIS 472 (Del. 2003)).

Attorney client privilege exists when legal advice is communicated by a town solicitor to individual council members regarding council business. Interfaith Housing Del. Inc., v. Georgetown, 841 F. Supp. 1393, 1398 (D. Del. 1994). “Because of their joint obligations and commonality of interest, the members of the Town Council share in its attorney-client privilege when a third party sues both the town and each councilmember.” Id. at 1398. Council can waive this privilege of individual council members and the privilege does not apply to disputes arising between various members of the town council. Id. at 1398, n.4.

“An agent can only waive a corporation’s privilege if the agent is acting within the scope of his or her authority.” Interfaith Housing Del. Inc., v. Georgetown, 841 F. Supp. 1393, 1399 (D. Del. 1994). The court found that a corporation’s president and the mayor of a city have power within the scope of their authority, but not an unauthorized councilperson. Id. at 1399.

Two companies in negotiations for a merger do not share a common interest until agreement is reached, and thus communications involving the two parties prior to the merger agreement are not covered by attorney-client privilege. Zirn v. VLI Corp., 621 A.2d 773, 780 (Del. 1993).

1.6:475 Privilege for Governmental Clients

Attorney client privilege exists when legal advice is communicated by a town solicitor to individual council members regarding council business. Interfaith Housing Del. Inc., v. Georgetown, 841 F. Supp. 1393, 1398 (D. Del. 1994). “Because of their joint obligations and commonality of interest, the members of the Town Council share in its attorney-client privilege when a third party sues both the town and each councilmember.” Id. at 1398. Council can waive this privilege of individual council members and the privilege does not apply to disputes arising between various members of the town council. Id. at 1398, n.4.

1.6:480 Privilege of Co-Clients

Under the Delaware Rules of Evidence, “[t]here is no privilege . . . (6) [a]s to a communication relevant to a matter of common interest between or among 2 or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.” Del. R. Evid. (d)(6) (2004). “The rule assures that the attorney-client privilege will protect confidential communications involving counsel for separate clients so long as the clients share a common interest sufficient to justify invocation of the privilege.” American Legacy Found. V. Lorillard Tobacco Co., C.A. No. 19406, 2004 Del. Ch. LEXIS 157, at *10 (Del. Ch. Nov. 3, 2004). An example of this is “[w]hen an attorney has been retained to present both insured and insurer in a third-party action, communications by either party will not be privileged as to the other, even if their interests later diverge.” Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 623 A.2d 1118, 1123-4 (Del. Super. Ct. 1992).

Simultaneous representation does not waive attorney-client privilege of the co-clients as to third parties, Oliver v. Boston Univ., C.A. No. 16570-NC, 2004 Del. Ch. LEXIS 51, at *4-5 (Del. Ch. Apr. 26, 2004), unless a fiduciary relationship exists between one of the parities and the third party (see Deutsch v. Cogan, 580 A.2d 100, 107-08 (Del. Ch. 1990)). Also, “when one or more clients with common interests waives the attorney-client privilege in a dispute with a third party, that one individual’s waiver does not effect a waiver as to the others’ attorney-client privilege.” Interfaith Housing Del. Inc., v. Georgetown, 841 F. Supp. 1393, 1402 (D. Del. 1994). In Interfaith, the individual members of the city council were being sued along with the council itself. One of the individual members, without apparent or actual authority, waived some privileged information through partial disclosure. The Court held that this information could be used against that councilperson, but not the other defendants. Id. at 1402. Furthermore, Delaware Rule of Evidence 502(b)(3) stops a party having a common interest with a second party, who receives privileged information from the second party, from sharing that information with a third party over the objection of the second party by creating a duty of confidentiality. Tenneco Auto., Inc. v. El Paso Corp., C.A. Np. 18810-NC, 2001 Del. Ch. LEXIS 138, at *5-6 (Del. Ch. Nov. 5, 2001). In Tenneco, the Court found that “because [party one] received the documents as privileged communications addressing a common interest shared by [party one] and [party two], [party one could not] waive the attorney-client privilege on its own. Id. at *6. The Court further explained that although neither party one nor party two could claim privilege between them, “the privilege still attaches as to discovery sought by the [third outside party].” Id. at *7

Two companies in negotiations for a merger do not share a common interest until agreement is reach, and thus communications involving the two parties prior to the merger agreement are not covered by attorney-client privilege. Zirn v. VLI Corp., 621 A.2d 773, 780 (Del. 1993).

1.6:490 Common-Interests Arrangements

A joint defense agreement (“JDA”) “is evidence of both . . . anticipation of litigation and shared common interest.” American Legacy Found. v. Lorillard Tobacco Co., C.A. No. 19406, 2004 Del. Ch. LEXIS 157, at *4 (Del. Ch. Nov. 3, 2004). American Legacy Foundation deals with litigation stemming from a huge 1999 Master Settlement Agreement between the nation’s largest tobacco companies and 46 States’ Attorney Generals. The plaintiff, a tobacco company, sued over ads paid for by the settlement, which they claimed violated the settlement. Id. at *1-2. The settlement created the defendant, a non-profit corporation, to institute advertising to reduce youth smoking. Id. at *2. Plaintiff wanted to be in on communications between defendant and its advertising agency. Id. at *3. In anticipation of possible future litigation, defendant and the ad agency signed a JDA. Id. at *4. Plaintiff contended that the JDA did not apply, because under the suit brought by the plaintiff, the ad agency could not be a defendant. Id. at *6. The Court held that the JDA preserved the lawyer-client privilege because there was foreseeable future litigation involving the ad agency. Id. at *15-16. “The fact that [the plaintiff] has not sued [the ad agency] does not mean that [the defendant] and [the ad agency] did not have, and do not continue to have, a valid JDA. The absence of actual litigation against [the ad agency] is inconsequential . . .” Id. at *16.

1.6:495 Duration of Attorney-Client Privilege

Communications by a former client to the former lawyer are not covered by attorney-client privilege when the lawyer states that he cannot represent the client in the matter that the client is discussing. Delaware v. Outten, 1992 Del. Super. LEXIS 484, at 13-4 (Del. Super. Ct. Dec. 1, 1992).

“The existence of the attorney-client privilege . . . is determined as of the time the communication is made, not at the time when the discovery of the communication is sought.” Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 623 A.2d 1118, 1123 (Del. Super. Ct. 1992).

1.6:500 Waiver of Attorney-Client Privilege

Waiver of attorney-client privilege is the “voluntary and intentional relinquishment of a known right. Nevertheless, waiver of the attorney client privilege may be implicit, even if contrary to the party’s actual intent. . . [W]aiver 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.” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 259 (Del. 1995)

“An agent can only waive a corporation’s privilege if the agent is acting within the scope of his or her authority.” Interfaith Housing Del. Inc. v. Georgetown, 841 F. Supp. 1393, 1399 (D. Del. 1994). The standard the court used was whether a reasonably prudent person would assume the agent had the authority to waive the organization’s attorney-client privilege. Id. at 1399. The court found that a corporation’s president and the mayor of a city have power to waive privilege within the scope of their authority. Id. at 1399. It refused to extend those findings to a city councilperson where no evidence of actual or apparent authority existed. Id. at 1399-1400.

“Waiver of attorney-client privilege does not automatically relinquish the protection provided by the work product doctrine.” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 260 (Del. 1995).

Refreshing witness’s memory. No relevant case addresses whether Delaware Rule of Evidence 612(b) gives the trial judge discretion to override attorney-client privilege when privileged material is used to refresh a witness’s memory prior to testifying.

1.6:510 Waiver by Agreement, Disclaimer, or Failure to Object

Not objecting “to a potential adversary’s possession of a privileged document before a pleading has been filed or the document has been raised in legal proceeding” does not lay claim to a waiver by estoppel theory. Cove on Herring Creek Homeowners’ Association, Inc. v. Riggs, 2001 Del. Ch. LEXIS 157, *11 (Del. Ch. Dec. 28, 2001) (summary judgment granted, Cove on Herring Creek Homeowners' Ass'n v. Riggs, 2003 Del. Ch. LEXIS 36 (Del. Ch. Apr. 9, 2003), aff’d, Riggs v. Cove on Herring Creek Homeowners Ass'n, 832 A.2d 1252, 2003 Del. LEXIS 472 (Del. 2003)). The failure to object does not extend to a period prior to the request to admit privileged information into evidence. In Fingold v. Computer Entry Systems Corp., the moving party’s motion failed because the motion was inappropriate and untimely. CA. No. 10539, 1990 Del.Ch. LEXIS 11, *3 (Del. Ch. Jan. 26, 1990). The original objection was only for attorney work product immunity and the issue of attorney-client privilege first came up in the supporting brief. Id. at *2. Also, the moving party “failed to set forth the factual basis for their privilege claim, such as a delineation of the particular portions of, or topics discussed in, [the] lengthy documents that [were] claimed to have confidential client-communicated information.” Id. at *3.

1.6:520 Waiver by Subsequent Disclosure

Under Delaware Rules of Evidence, “[a] person upon whom these rules confer a privilege against disclosure waives the privilege if he or his predecessor[,] while holder of the privilege[,] voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.” Del. R. Evid. 510 (2004). Exceptions. This does not apply when the privileged matter’s disclosure “was (1) compelled erroneously or (2) made without opportunity to claim the privilege.” Del. R. Evid. 511 (2004).

Fairness. “[V]oluntary disclosure by the privilege holder (the client) or consent to disclosure of any significant part of the privileged matter operates as a waiver of the privilege.” Clausen v. National Grange Mut. Ins. Co., 730 A.2d 133, 138 (Del. Super. Ct. 1997). “Partial disclosure of facts protected by [attorney-client privilege] is not enough, however. Implicit waiver also requires that the partial disclosure place the party seeking discovery at a distinct disadvantage due to an inability to examine the full context of the partially disclosed information. . . . [Which usually means] the opposing party will have no alternative source for obtaining the concealed information if the privilege is upheld.” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 260 (Del. 1995).

“The purpose underlying the rule of partial disclosure [resulting in the waiving of privilege] is one of fairness to discourage the use of the privilege as a litigation weapon . . . A party should not be permitted to assert the privilege to prevent inquiry by an opposing party where the professional advice, itself, is tendered as a defense or explanation for disputed conduct.” Zirn v. VLI Corp., 621 A.2d 773, 781-2 (Del. 1993). In Zirn, the Court found that when material “deemed material to shareholder’s decision to tender stock” was partially disclosed, it could no longer by protected be attorney-client privilege. Id. at 780.

Disclosure beyond attorney-client. “Whether disclosure of a communication beyond the client and lawyer destroys the basis for the claim of privilege or not inevitably involves a judgment as to whether in the circumstances the person making the disclosure in fact regarded that disclosure as confidential and, if there was an expectation of confidentiality, whether the law will sanction that expectation. Thus, for example where a client seeks legal advice as to the proper structuring of a corporate transaction and it is also prudent to seek professional guidance from an investment banker, it would hardly waive the lawyer-client privilege for a client to disclose facts at a meeting concerning such transaction at which both his lawyer and his investment banker were present.” Jedwab v. MGM Grand Hotels, Inc., No. 8077, 1986 Del. Ch. LEXIS 383, at *4 (Del. Ch. Mar. 20, 1986).

Sharing confidential information with a public relations firm may not result in waiver of the attorney-client privilege when there is a close relationship between the firm and the lawyer and the communication relates to legal advice. American Legacy Found. V. Lorillard Tobacco Co., C.A. No. 19406, 2004 Del. Ch. LEXIS 157, at *19-21 (Del. Ch. Nov. 3, 2004). But “a statement or communication made by a client to his attorney with intent and purpose that it be communicated to others is not privileged.” Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992). Specifically, “. . . where a lawyer [is] expressly authorized by his client to communicate to opposing counsel matters to be considered in negotiations for settlement of a controversy, such matters [are] not confidential communications protected by attorney/client privilege.” Id. at 72. The disclosure does not extend to reasons the client gives lawyers for not signing a negotiated settlement, or specific advice the lawyer might give the client as to why the client should sign, because that “clearly [goes] beyond the scope of any information [the attorney would be expected] to disclose to others or authorized by her client to disclose.” Id. at 73.

Limits of partial disclosure. In Interfaith Housing Del. Inc., v. Georgetown, 841 F. Supp. 1393 (D. Del. 1994), the court held that a statement, ‘on advice of counsel’ by a defendant councilperson resulted in that councilperson waiving her attorney-client privilege, but only as to the specific subject talked about during that statement, and did not waive the privilege of the other defendants. Id. at 1399

Unpermitted disclosure. The unpermitted disclosure to a possible adverse party of a piece of privileged information does not create a waiver of the privilege. In Cove on Herring Creek Homeowners’ Association, Inc. v. Riggs, 2001 Del. Ch. LEXIS 157, *7-10 (Del. Ch. Dec. 28, 2001) (summary judgment granted, Cove on Herring Creek Homeowners' Ass'n v. Riggs, 2003 Del. Ch. LEXIS 36 (Del. Ch. Apr. 9, 2003), aff’d, Riggs v. Cove on Herring Creek Homeowners Ass'n, 832 A.2d 1252, 2003 Del. LEXIS 472 (Del. 2003)), the court held that the Association had not waived its attorney-client privilege when a defendant received a copy of privileged material delivered in his mailbox, with “no return address or identifying characteristics revealing who had delivered it to him.” The Board “jealously guarded” the letter, “no Board member was authorized to disseminate” it, and “none of the Board members admitted having disclosed the letter.” Id. *7-8. The court found that because the letter had not been “disseminated at the direction or behest of the Association or by any officer or board member of the Association in his or her official capacity,” the Association had not waived their privilege when the letter was found by the defendant in his mailbox. Id. at *9.

Privilege claim dismissal subsequently overturned. When privileged information is disclosed upon court order in testimony or cross-examination, and the party wishing to protect the privilege properly objects, the privileged status of that information is not waived when the court order is later overturned. Moyer v. Moyer, 602 A.2d 68, 73 (Del. 1992).

Email disclosure. Emailing confidential information to numerous people does not waive attorney-client privilege, so long as the “people had a need to know the information in the memo to perform their duties.” Int’l Bus. Machines Corp. v. Comdisco, Inc., C.A. No. 91-C-07-199, 1992 Del. Super. LEXIS 67, at *4-5 (Del. Super. Ct. Mar. 11, 1992).

Preliminary drafts of documents retain their privilege status despite their final version later being filed with the Securities and Exchange Commission. Jedwab v. MGM Grand Hotels, Inc., No. 8077, 1986 Del. Ch. LEXIS 383, at *4 (Del. Ch. Mar. 20, 1986). Applying Jedwab, the Court of Chancery, in Lee v. Engle, found that work-product (and attorney-client privilege) protects the “preliminary drafts of board meeting documents and the publicly-filed documents they withheld.” Lee v. Engle, C.A. No. 13323, 1995 Del. Ch. LEXIS 149, at *15 (Del. Ch. Dec. 15, 1995), clarified by Lee v. Engle, 1998 Del. Ch. LEXIS 122 (Del. Ch. June 19, 1998).

Refreshing witness’ memory. No relevant case addresses whether Delaware Rule of Evidence 612(b) gives the trial judge discretion to override attorney-client privilege when privileged material is used to refresh a witness’s memory prior to testifying.

see also 1.6:530 (Waiver by Putting Assistance or Communication in Issue) for further example.

1.6:530 Waiver by Putting Assistance or Communication in Issue

“Under the ‘at issue’ exception, the holder of the [attorney-client] privilege waives it one of two ways: (1) the party holding the privilege injects the communications themselves into the litigation; or, (2) the party injects an issue into litigation, the truthful resolution of which requires an examination of the confidential communication.” E. I. Du Pont De Nemours and Co. v. Admiral Ins. Co., No. 89C-AU-99, 1992 Del. Super. LEXIS 517, at *5 (Del. Super. Ct. Dec. 23, 1992), citing Hoechst Celanese Corp. v Nat’l Union Fire Ins., 623 A.2d 1099 (Del Super. Ct. 1991).

A client may have waived his attorney-client privilege when making “factual assertions . . . in the defense of a claim which incorporates, expressly or implicitly, the advice and judgment of the lawyer.” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 259 (Del. 1995). In order for there to be this sort of waiver, first the “disclosure of otherwise protected fact [must be] relevant to a particular subject matter relied upon as a defense” and second, “the partial disclosure [must place] the party seeking discovery at a distinct disadvantage due to an inability to examine the full context of the partially disclosed information.” Id. at 260. In Tackett, an insurer, in a bad faith claim case, asserted that they had done nothing unusual in their handling of the claim in dispute and that they relied upon their attorney’s review of the claim and its processing. The court agreed with the trial court that because the assertion of proper handling was brought up by the insurer and, because there was “no alternative source for obtaining the concealed information,” it was appropriate to waive the insurer’s attorney-client privilege in this instance. Id. at 259-60. “[When] an insurer makes factual representations which implicitly rely upon legal advice as justification for non-payment of claims, the insurer cannot shield itself from disclosure of the complete advice of counsel relevant to the handling of the claim.” Id. at 260. (For examples of bad faith insurance cases where disclosure of attorney-client privileged information was not ordered, see Clausen v. National Grange Mut. Ins. Co., 730 A.2d 133, 143-4 (Del. Super. Ct. 1997) (finding it had too new a record); Rugar v. Commonwealth Land Title Ins. Co., C.A. No. 93C-04-210, 1996 Del. Super. LEXIS 550, *16-17 (Del. Super. Ct. Nov. 27, 1996) (finding no partial disclosure of facts that implicitly rely on privileged communications).

“[T]he implied waiver [of attorney-client privilege] doctrine may only be invoked to address issues raised by the opposing party.” Int’l Bus. Machines Corp. v. Comdisco, Inc., C.A. No. 91-C-07-199, at *9, 1992 Del. Super. LEXIS 67, (Del. Super. Ct. Mar. 11, 1992). Although a defendant’s defense can waive a plaintiff’s attorney-client privilege when it is foreseeable that such a defense would arise from plaintiff’s claim(s) and the defense puts privileged information “at issue,” Tenneco Auto., Inc. v. El Paso Corp., C.A. Np. 18810-NC, 2001 Del. Ch. LEXIS 138, at *9 (Del. Ch. Nov. 5, 2001), “[a] party cannot force an insurer to waive the protections of the attorney-client privilege merely by bringing a bad faith claim.” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 259 (Del. 1995). In Tenneco, the Court found that it was foreseeable that the defendant would use the defense that “injected” the plaintiff’s privileged information into the litigation, but it concluded, using “rational fairness,” that the defendant could obtain the relevant information from other sources, thus the second part of the test for waiver of attorney-client privilege was not met and the privilege not waived. Id. at *9-10.

In Playtek FP, Inc. v. Columbia Cas. Co., the Court followed Remington Arms Co. v. Liberty Mut. Ins. Co., C.A. No. 89-420-JLL, 1992 U.S. Dist. LEXIS 6691 (D. Del Apr. 24, 1992) and found that merely stating that attorney’s fees were reasonable did not put documents connected to those fees at issue unless the opposing party makes a showing that the claimant plans to rely on information contained therein at trial, and the opposing party has no other way to get the information so enclosed. C.A. No. 88C-MR-233, 1993 Del. Super. LEXIS 62, *7-9 (Del. Super. Ct. Mar. 4, 1993).

Describing a deposition to an opposing party that contains privileged information may not be a waiver of attorney-client privilege when the deposition occurred in another court action, in another state, and that state’s evidence rules precluded the claim of privilege because of their “joint client” exception. In re Sutton, C.A. No. 96M-08-024, 1996 Del. Super. LEXIS 532, *17 (Del. Super. Ct. Aug. 30, 1996). In Sutton, the Court found that the party had “not voluntarily injected into litigation” information that had been disclosed “in a deposition in [a] California action in which the California court had already ruled that [the party’s] claim of attorney-client privilege with respect to communications between [the parties] must fail under California law because of the ‘joint client’ exception to the privilege.” Id. The Court came to this conclusion because the disclosure was outside the opposing parties’ subpoenas and the “California court explicitly ruled that any waiver for purposes of the California litigation did not operate as a waiver of communications regarding [the party’s] potential criminal liability. Id. at *20. Furthermore, the Court held that the party should not have been “deemed to have waived his attorney-client privilege by merely describing deposition testimony which [had] been elicited by his opponent in that [other] litigation.” Id. at *21

1.6:600 Exceptions to Attorney-Client Privilege

Delaware does not recognize the “state need verses privilege” balancing test discussed in United States v. Rogers, 636 F. Supp. 237, 254 (D. Colo. 1986). In re Sutton, C.A. No. 96M-08-024, 1996 Del. Super. LEXIS 532, *28 (Del. Super. Ct. Aug. 30, 1996). In Sutton, the Court found no support for the State’s “proposition that the attorney-client privilege may be . . . trumped by the State’s need to obtain evidence.” Id.

1.6:610 Exception for Disputes Concerning Decedent’s Disposition of Property

Under the Delaware Rules of Evidence, “[t]here is no privilege . . . (2) [a]s to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.” Del. R. Evid. 502 (d)(2) (2004).

1.6:620 Exception for Client Crime of Fraud

Under the Delaware Rules of Evidence, “[t]here is no privilege . . . (1) [i]f the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” Del. R. Evid. 502 (d)(1) (2004). Delaware follows the line of cases coming out of Clark v. United States, 289 U.S. 1, 15 (1933), requiring more than mere allegations of fraud to invoke this privilege exception. In re Sutton, C.A. No. 96M-08-024, 1996 Del. Super. LEXIS 532, *31 (Del. Super. Ct. Aug. 30, 1996). Merely alleging crime or fraud is not enough, the moving party must be able to demonstrate “prima facie [but not necessarily definitive] evidence showing a reasonable basis exists to believe that certain communications between [the client] and [the client’s lawyer] were in furtherance of a crime or fraud,” for the communications to fall within the crime or fraud exception to the attorney-client privilege. Finley Assocs. v. Sea & Pines Consol. Corp., 714 Supp. 110, 118 (D. Del. 1989). The evidence presented must rise to a level such that there is a “factual basis adequate to support a good faith belief by a reasonable person, [citation omitted], that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.” In re Sutton, C.A. No. 96M-08-024, 1996 Del. Super. LEXIS at *41. The evidence must be that the communication was done in furtherance of the crime, but evidence of the “commission of the elements of a crime or fraud” or of the crimes completion is not necessary. Id. at *36.

In Sutton, the State argued that communications regarding a document that was presented at trial and which the Court later determined was falsified were not privileged, because the drafting of them was in furtherance of a crime, perjury. The Court found otherwise. It pointed to the fact that there was no evidence that either the client or the attorney falsified the document and just because an attorney-client relationship existed at the time the document was offered, it did not automatically mean that the relationship existed when the document was drafted. C.A. No. 96M-08-024, 1996 Del. Super. LEXIS at *38-9.

In Finley Associates, a contract dispute arose over interest in a seaside property. Privilege was claimed for information between the defendant and his former lawyer regarding the offering of a property to a third party, who was representing a party in discussions with the defendant to purchase an interest. The plaintiff offered evidence, including statements from the real-estate broker and a lawyer to show that these discussions occurred. The court found the evidence presented was sufficient to determine that the communications likely fell under the crime or fraud exception and to compel the former lawyer’s testimony on the subject even though “[s]ome of the deposition testimony cannot be reconciled . . .” Finley Assocs., 714 Supp. at 118.

1.6:630 Exception for Lawyer Self-Protection

Under the Delaware Rules of Evidence, “[t]here is no privilege . . . (4) [a]s to a communication necessary for a lawyer to defend in a legal proceeding an accusation that the lawyer assisted the client in criminal or fraudulent conduct.” Del. R. Evid. 502 (d)(4) (2004). Also, “[t]here is no privilege . . . (3) [a]s to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer.” Del. R. Evid. 502 (d)(4) (2004).

1.6:640 Exception for Fiduciary-Lawyer Communications

(see 1.6:470 Privilege for Organizational Clients & 1.6:650 Exception for Organizational Fiduciaries)

In situations involving trusts, “[i]f it is determined that the beneficiaries were ultimately the persons intended to benefit from the legal assistance requested” then attorney-client privilege may not be invoked against the beneficiaries for documents corresponding to that request. Riggs Nat’l Bank of Washington, D.C. v. Zimmer, 355 A.2d 709, 711 (Del. Ch. Apr. 1976). In Riggs, the Court found that the documents were not drafted in litigation against the trustees (the litigation to which the documents were originally drafted was a petition for instructions). Id. Rather, it found that “the ultimate or real clients were the beneficiaries of the trust, and the trustee, [in the] capacity of fiduciary, was, or at least should have been, acting only on behalf of the beneficiaries in administering the trust.” Id. The Court noted that “the payment to the law firm out of the trust assets [was] a significant factor.” Id. at 712.

1.6:650 Exception for Organizational Fiduciaries

(see also 1.6:470 Privilege for Organizational Clients)

In order for the beneficiary shareholder to gain otherwise privileged information, the shareholder must show “good cause.” Zirn, 621 A.2d at 781. The Delaware Supreme Court adopted a standard for “good cause” determinations from the Fifth Circuit case, Garner v. Wolfinbarger, 430 F.2d 1093, 1104 (5th Cir. 1970) (as opposed to the approach in Valente v. Pepsico, Inc., 68 F.R.D. 361 (D. Del 1975). Garner stated, “[t]here are many indicia that may contribute to a decision of presence or absence of good cause, among them the number of shareholders and the percentage of stock they represent; the bona fides of the shareholders; the nature of the shareholders' claim and whether it is obviously colorable; the apparent necessity or desirability of the shareholders having the information and the availability of it from other sources; whether, if the shareholders' claim is of wrongful action by the corporation, it is of action criminal, or illegal but not criminal, or of doubtful legality; whether the communication related to past or to prospective actions; whether the communication is of advice concerning the litigation itself; the extent to which the communication is identified versus the extent to which the shareholders are blindly fishing; the risk of revelation of trade secrets or other information in whose confidentiality the corporation has an interest for independent reasons.” Id. at 781. The Court in Zirn found there was “good cause” in a case where the directors were attempting “to shield from shareholder-beneficiaries information directly affecting the financial interests of those beneficiaries. Id. at 781. Similarly, in Deutsch v. Cogan, 580 A.2d 100 (Del. Ch. 1990), the court held that members of the board of directors of a company involved in a merger could not use attorney-client privilege to deny company shareholders access to information about the decision to merge. Id. at 108. The court applied the Garner factors and concluded “[u]nder these circumstances the defendant cannot assert the lawyer-client privilege as to the documents in categories 1-4 because the shareholder plaintiffs have shown ‘good cause’ why the lawyer-client privilege should not attach,” but refused to find the same for other documents. Id. at 108. (see also Oliver v. Boston Univ., C.A. No. 16570-NC, 2004 Del. Ch. LEXIS 51, at *10-11 (Del. Ch. Apr. 26, 2004), Lee v. Engle, C.A. No. 13323, 1995 Del. Ch. LEXIS 149, at *4-11 (Del. Ch. Dec. 15, 1995), clarified by Lee v. Engle, 1998 Del. Ch. LEXIS 122 (Del. Ch. June 19, 1998), and Sealy Mattress Co. of New Jersey, Inc. v. Sealy Inc., C.A. No. 8853, 1987 Del. Ch. LEXIS 451, *9-10 (Del. Ch. June 19, 1987). (applying a factor test similar to Garner)).

“[A] corporation may only assert the privilege through its agents, i.e. its officers and directors, who must exercise the privilege in a manner consistent with their fiduciary duty to act in the best interests of the corporation and not for themselves as individuals. Thus, the privilege . . . is not absolute and, if the legal advice relates to a matter which becomes the subject of a suit by a shareholder against the corporation, the invocation of the privilege may be restricted or denied entirely” through the showing of good cause by the shareholder. Zirn v. VLI Corp., 621 A.2d 773, 781 (Del. 1993). The [fiduciary] doctrine, where the shareholder needs to show the fiduciary corporation was not acting in good faith in order to have communications between the corporation and its lawyer(s) not covered by the lawyer-client privilege, “is not technically an ‘exception’ to the lawyer-client privilege under Delaware Evidence Rule 502, but nonetheless results in its not being applied.” Deutsch v. Cogan, 580 A.2d 100, 104 (Del. Ch. 1990). It “is based upon a commonality of interest or a “mutuality of interest” between [the fiduciary] and the limited partners [or shareholders]. If the requisite ‘mutual interest’ is shown, then the limited partner [or shareholder] seeking access to a partnership’s [or company’s] confidential communications with counsel must proceed to show ‘good cause’ in order to avail themselves of the [pseudo] fiduciary duty exception.” Metro. Bank and Trust Co. v. Dovenmuehle Mortgage, Inc., C.A. No. 18023-NC, 2001 Del. Ch. LEXIS 153, at *8 (Del. Ch. Dec. 20, 2001). Factors in determining whether “good faith” has been shown “may include, among other things: 1) the assertion of a colorable claim; 2) the necessity of the information and the unavailability of the information from another source; 3) the extent to which the communication is identified as opposed to the extent to which the shareholder [or limited partner] is merely fishing for information; and 4) the requested documents do not disclose strategies or theories relating to the defense of the suit [i.e. documents that would qualify under the work-product doctrine].” Continental Ins. Co. v. Rutledge & Co., Inc., C.A. No. 15539, 1999 Del. Ch. LEXIS 12, at *6 (Del. Ch. Jan. 26, 1999) (internal quotes excluded). “‘Mutuality of interest’ will have lapsed by the time the general partner [or company] and the limited partner [or shareholder] can reasonably anticipate litigation about an identified dispute.” Metro. Bank and Trust Co., 2001 Del. Ch. LEXIS 153, at *10. In Continental Insurance, the Court easily determined that the “mutuality of interest” has ceased when the plaintiffs took steps to withdraw from the partnership. Continental Ins. Co., 1999 Del. Ch. LEXIS 12, at *10-11. While in Metropolitan, the facts were more complicated and the court determined the “mutuality of interest” had ceased when a letter was sent by the general partner to all of the limited partners except to the limited partner who brought the claim at the center of the case. Metro. Bank and Trust Co., 2001 Del. Ch. LEXIS 153, at *11.

1.6:660 Invoking the Privilege and Its Exceptions

“The burden of proving that the privilege applies to a particular communication is on the party asserting the privilege.” Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992). “An improperly asserted claim of privilege is no claim of privilege at all. The documents must be sufficiently described to provide the court with a basis upon which to weigh the assertion of privilege. A bare allegation that information contained in the documents is privileged will be insufficient to justify withholding such documents. Each category of documents identified . . . will be reviewed in accordance with this standard. The sufficiency of description . . .is satisfied by a showing of: (a) the identity and corporate position of the person or persons interviewed or supplying the information; (b) the place, approximate date, and manner of recording or otherwise preparing the instrument; (c) the names of the person or persons . . . participating in the interview and preparation of the document; and (d) the name and corporate position, if any, of each person to whom the contents of the document have heretofore been communicated by copy, exhibition, reading, or substantial summarization.” (citations omitted). Council of Unit Owners of Sea Colony East v. Carl M. Freeman Assoc., Inc., C.A. Nos. 86C-AU-52, et al., 1990 Del. Super. LEXIS 364, *3-4 (Del. Super. Ct. 1990). Also, the moving parties must “set forth the factual basis for their privilege claim, such as a delineation of the particular portions of, or topics discussed in, [the] documents that [are] claimed to have confidential client-communicated information.” Fingold v. Computer Entry Systems Corp., CA. No. 10539, 1990 Del.Ch. LEXIS 11, *3 (Del. Ch. Jan. 26, 1990).

Standard of Review. “The standard of review for a master’s decision on a pre-trial, non-dispositive issue [of the existence of attorney-client privilege] is whether the master’s decision is clearly erroneous.” Asbestos Litigation, 623 A.2d 546, *2 (Del. Super. Ct. 1992). A. reviewing court “exercises de novo review on the question of whether a trial court correctly applied the attorney-client privilege . . .” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 258 (Del. 1995).

Privilege order later overturned. When privileged information is disclosed upon court order in testimony or cross-examination and the party wishing to protect the privilege properly objects, the future claim of that information as privileged is not waived when the court order is later overturned. Moyer v. Moyer, 602 A.2d 68, 73 (Del. 1992).

1.6:700 Lawyer Work-Product Immunity

Work-product immunity is intended to protect “the privacy of lawyers in their work and encourage freedom of lawyers from interference in the task of preparing their clients’ cases for trial.” Riggs Nat. Bank of Washington, D.C. v. Zimmer, 355 A.2d 709, 715 (Del. Ch. 1976). “At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his clients’ case.” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 261 (Del. 1995). It “is designed to prevent disclosure of the results of investigation or mental processes and strategies which have been developed for use in litigation.” Ramada Inns, Inc. v. Drinkhall, 490 A.2d 593, 596 (Del. 1985). “The purpose behind the protection of work product is to ‘promote the adversary system by safeguarding the fruits of an attorney’s trial preparations from the discovery attempts of the opponent. Saito v. McKesson HBOC, Inc., C.A. No. 18553, 2002 Del. Ch. LEXIS 125, *11 (Del. Ch. Oct. 25, 2002), clarified by Saito v. McKesson HBOC, Inc., 2002 Del. Ch. LEXIS 139 (Del. Ch. Nov. 13, 2002), aff’d, McKesson Corp. v. Saito, 818 A.2d 970, 2003 Del. LEXIS 121 (Del. 2003). When deciding whether to uphold work product immunity, the Court must balance the policy decision that “an attorney or party’s agent should not be deterred from adequately preparing for trial because of the fear that their efforts will be freely disclosed to opposing counsel” with the policy that “the rules should be construed to allow discovery of all relevant information, so that issues may be tried on the true facts.” Mullins v. Vakili, 506 A.2d 192, 198 (Del. Super. Ct. 1986).

For a history behind the work-product immunity, see Clausen v. National Grange Mut. Ins. Co., 730 A.2d 133, 138-41 (Del. Super. Ct. 1997) and/ or Mullins v. Vakili, 506 A.2d 192, 194-200 (Del. Super. Ct. 1986).

1.6:710 Work-Product Immunity

The concept of work-product is separate from attorney-client privilege, but “both arise from the attorney-client relationship. The work product privilege . . . serves a different purpose, one related to the adversary system of litigation – the protection of an attorney’s private files and recorded impressions from discovery by opposing counsel.” Zirn v. VLI Corp., 621 A.2d 773, 782 (Del. 1993).

Under the Delaware Rules of Civil Procedure, “a party may obtain discovery of documents and tangible things otherwise discoverable . . . and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the Court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Del. Ch. Ct. R. 26.

The language in Del. Ch. Ct. R. 26 is not mandatory “as establishing an impenetrable barrier to discovery of opinion work product,” but rather requires “additional protection of opinion work product . . .” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 261-2 (Del. 1995). As such, it “generally provides a lesser degree of protection from discovery than the attorney-client privilege,” but “its coverage encompasses a greater amount of materials.” Id. at 261.

The work product produced for one litigation may carry the immunity to another if “the two cases are closely related in parties and subject matter.” Ramada Inns, Inc. v. Drinkhall, 490 A.2d 593, 596 (Del. 1985). The Court in Ramada found no such relation because “neither identity of parties nor identity of litigation subject exists between [the two suits]” thus it held the work product immunity that existed for the one did not carry over for that same material to the other. Id. “The lapse of time between two cases is a consideration . . .” Ashcraft v. A. C. & S., Inc., C. A. Nos. 87C-FE-170, et al., 1989 Del. Super. LEXIS 456, *3 (Del. Super. Ct. Nov. 3, 2004). In Ashcraft, the Court found that because the first case had concluded thirty years before and “[c]learly, the objective of protecting litigation strategy, which underlies work product protection, cannot be served by secreting a document whose function ended many years ago,” thus work product immunity was not extended to that second case. Id. at *4.

“In Delaware, the following factors must be considered in determining whether materials are protected by the work product doctrine: (1) whether the documents were prepared in anticipation of litigation; (2) whether the materials contain legal analysis and opinion or purely factual matters; (3) whether the materials were prepared or requested by the party or a representative; (4) whether the materials were routinely prepared; and (5) whether specific claims were present or whether discussions or negotiations had occurred at the time the materials were prepared.” Monsanto Co. v. Aetna Casualty and Surety Co., No. 88C-JA-118, 1994 Del. Super. LEXIS 261, *9-10 (Del. Super. Ct. May 31, 1994). (provides a good step by step analysis). See also Continental Casualty Co. v. General Battery Corp., C.A. No. 93C-11-008, 1994 Del. Super. LEXIS 541, *18-19 (Del. Super. Ct. Nov. 16, 1994).

Anticipation of Litigation

“To fall within the purview of the work product immunity, the material need only be prepared in anticipation of any litigation or trial.” (emphasis added) Hoechst Celanese Corp. v. Nat. Union Fire Ins. Co. of Pittsburgh, C.A. No. 89C-SE-35, 1995 Del. Super. LEXIS 320, at *19-20 (Del. Super. Ct. Mar. 17, 1995). The suit does not actually have to be filed for the work product doctrine to apply. Continental, Ins. Co. v. Rutledge & Co., Inc., C.A. No. 15539, 1999 Del. Ch. LEXIS 12, at *6 (Del. Ch. Jan. 26, 1999). Also, the material need not be prepared for the case sought, if the case to which it was prepared is closely related. In re Sutton, C.A. No. 96M-08-024, 1996 Del. Super. LEXIS 532, *45-6 (Del. Super. Ct. Aug. 30, 1996). Additionally, the material may be prepared in anticipation of some future litigation and before the incident in the current case occurred. Wolhar v. General Motors Corp., 712 A.2d 457, 462 (Del. Super. Ct. 1997).

There is no one test for determining if a “document or tangible thing” is prepared in anticipation of litigation. Mullins v. Vakili, 506 A.2d 192, 198 (Del. Super. Ct. 1986). “The Court must consider the facts of each case.” Id. Factors to consider are the “substantial probability of litigation” and “immediacy” of the litigation. Id. The Court should look to the factual information to determine if it can fairly be said that the document was “prepared or obtained because of the prospect of litigation…keeping in mind the purpose of [the work product doctrine] is to protect the integrity of the adversary process.” Id.

In Mullins, the court found documents were protected which were prepared by a doctor’s insurance carrier’s claim adjustor prior to the filing of a medical practice claim, but after the doctor received a letter from an attorney informing the doctor that the attorney was representing a former patient of the doctor’s concerning procedures performed by the doctor. Mullins v. Vakili, 506 A.2d 192, 200 (Del. Super. Ct. 1986). The Court noted that the documents were “prompted by a letter the plaintiff’s attorney addressed to the defendant” rather than prompted by “the event out of which the claim arises.” Id. at 199. The Court also noted that the incident occurred two months prior to the letter and “when an attorney notifies a doctor two months after an incident out of which a claim arises that he represents the doctor’s patient, it may be reasonably inferred that litigation of some sort is likely.” Id. The Court also noted that litigation is more reasonably anticipated when representation is in regard to the doctor’s care rather than “actual events relating to that care.” Id.

In Carlton Inv. v. TLC Beatrice Int’l Holdings, Inc., the Delaware Chancery Court discussed making an “in anticipation of litigation” determination. “In order to determine whether documents produced prior to the commencement of litigation were produced “in anticipation of litigation” under the [work-product] Rule, one may ask first, do the documents reflect the collection of information with respect to historical fact relating to a potential claim that is actually considered in connection with that research activity? Documents satisfying this test (e.g. witness statements) represent documents created in anticipation of litigation. If documents do not meet this gather-of-historical-fact test standard, they still may qualify as being created in anticipation of litigation, but they are likely to be so only if they directly reflect considerations of legal strategies, tactics or theories of foreseen future litigation. In other words, it is insufficient to qualify for the limited immunity of Rule 26(b)(3), if a document is created for a purpose other than, or in addition to, the defense of a future litigation claim. Examples would be: a draft of a contract; a draft of a required or elective filing; a memorandum of a negotiation; or, other document that is designed to be, or lead to, a transaction document. C.A. No. 13950, 1996 Del. Ch. LEXIS 111, *10-11 (Del. Ch. Sept. 17, 1996).

In formation gathered can be done in anticipation of litigation even if done before the incident that generates the actual claim has occurred. Wolhar v. General Motors Corp., 712 A.2d 457, 462 (Del. Super. Ct. 1997). In Wolhar the defendant gathered certain information in a “Litigation Study” looking at potential litigation stemming from potentially defective breaking systems in some of their vehicles. After the study had been completed, plaintiff was in an accident in a vehicle involving the potentially faulting breaking system and brought suit against the defendant. The Court held that the study was protected as work product even though it had been gathered before plaintiff’s accident. Id.

Legal Analysis and Opinion

“The core areas of work product are clear enough: (1) fact gathering in anticipation of litigation or for trial and (2) strategy or tactical advice concerning the operation, so to say, of the litigation mechanism. Categories of information or documents falling outside these core areas may be problematic.” Carlton Inv. V. TLC Beatrice Int’l Holdings, Inc., C.A. No. 13950, 1996 Del. Ch. LEXIS 111, *6 (Del. Ch. Sept. 17, 1996). The work product must disclose “advice with respect to the conduct of future litigation [and not] simply relate to the transaction under consideration . . .” Carlton Inv. V. TLC Beatrice Int’l Holdings, Inc., C.A. No. 13950, 1996 Del. Ch. LEXIS 111, *3 (Del. Ch. Sept. 17, 1996).

In Mullins v. Vakili, the Court found that because an insurance claim adjustor’s notes contained evaluations of the merits of the case and “predominantly factual data,” work product immunity applied. 506 A.2d 192, 200 (Del. Super. Ct. 1986). The Court distinguished notes take by claim adjustors for medical malpractice claims verses other insurance claims. “Unlike many types of insurance claims where fault is not an issue and litigation merely involves the interpretation and application of the terms of the policy and the liability of the insurer under the policy, in a medical malpractice case the issues center on the alleged negligence of the doctor with the insurer initiating the preparation of the doctor’s defense and disputing any negligence on the part of the doctor.” Id.

Preparer

In order for documents to be covered under the work product rule, “[a]n attorney’s involvement is not necessary.” Clausen v. National Grange Mut. Ins. Co., 730 A.2d 133, 140 (Del. Super. Ct. 1997). But they must have been prepared by the party or an authorized representative. Monsanto Co. v. Aetna Casualty and Surety Co., No. 88C-JA-118, 1994 Del. Super. LEXIS 261, *9-10 (Del. Super. Ct. May 31, 1994). If prepared by a non-lawyer, it does not have to be done with prior consultation with counsel. Mullins v. Vakili, 506 A.2d 192, 196 (Del. Super. Ct. 1986). But “the fact that the non-attorney did or did not consult with counsel during the preparation of the document in question is, however, relevant though not conclusively determinative, as to whether the document was prepared in anticipation of litigation.” Id.

In Lee v. Engle, the court determined that material put together was not work product, because the person, despite having a prior legal degree, was not hired in the capacity of an attorney by the defendant until after the litigation began. C.A. No. 13323, 1995 Del. Ch. LEXIS 149, at *13 (Del. Ch. Dec. 15, 1995), clarified by Lee v. Engle, 1998 Del. Ch. LEXIS 122 (Del. Ch. June 19, 1998).

Routine Preparation

To be protected by the work product doctrine, the material cannot be “prepared only in the ordinary course of business.” Clausen v. National Grange Mut. Ins. Co., 730 A.2d 133, 140 (Del. Super. Ct. 1997). “Materials prepared in the routine or ordinary course of business are less likely to be considered work product.” Monsanto Co. v. Aetna Casualty and Surety Co., No. 88C-JA-118, 1994 Del. Super. LEXIS 261, *9-10 (Del. Super. Ct. May 31, 1994). Thus, “[m]aterial assembled during routine investigations by counsel are not protected as work product.” Ramada Inns, Inc. v. Drinkhall, 490 A.2d 593, 596 (Del. 1985). “Indeed, where the material sought was prepared with the primary purpose of assisting in a party’s day to day business, the material is not protected, even if there exists a likelihood of ultimate litigation. Thus, in determining whether the privilege should apply to a particular document, the critical question is whether preparation for litigation or trial was a primary motivation in the development of the document. A generalized alterness to the possibility of litigation is not sufficient to bring material within the purview of the work product doctrine.” Hoechst Celanese Corp. v. Nat. Union Fire Ins. Co. of Pittsburgh, C.A. No. 89C-SE-35, 1995 Del. Super. LEXIS 320, at *19-20 (Del. Super. Ct. Mar. 17, 1995). But when the routine business is preparation for litigation, the work product immunity would still apply. Mullins v. Vakili, 506 A.2d 192, 200 (Del. Super. Ct. 1986). (notes of a claims adjustor for a medical malpractice claim).

Timeliness of Preparation

“[C]ourts should examine the timing of the preparation and ascertain whether specific claims were present or whether discussion or negotiation had occurred at the time the materials were prepared.” Continental Casualty Co. v. General Battery Corp., C.A. No. 93C-11-008, 1994 Del. Super. LEXIS 541, *19 (Del. Super. Ct. Nov. 16, 1994).

Names and Contact Information of Fact Witnesses. Under Delaware law, it has been held that “the identity of person[s] who have been interviewed or who have given statements” falls “outside of the work product doctrine’s protection and [can] be discovered without any showing of need.” Nat’l Union Fire Ins. Co. of Pittsburg, C.A. No. 87C-SE-11, 1991 Del. Super. LEXIS 25, *8 (Del. Super. Ct. Jan. 15, 1991).

Ordinary (of fact) v. opinion. “As [Rule 26] indicates, work product is divided into two general categories: (1) ‘factual’ work product, and (2) ‘opinion’ work product, the material containing an attorney’s mental impressions, conclusions, opinions, or legal theories.” Clausen v. National Grange Mut. Ins. Co., 730 A.2d 133, 140 (Del. Super. Ct. 1997). “Factual [ordinary] work product is discoverable in certain circumstances, while opinion work product is, for most practical purposes, undiscoverable.” Continental Casualty Co. v. General Battery Corp., C.A. No. 93C-11-008, 1994 Del. Super. LEXIS 541, *17 (Del. Super. Ct. Nov. 16, 1994).

1.6:720 Ordinary Work Product

“Factual or ordinary work product includes written witness statements and all other trial preparation material not involving an attorney’s thought processes . . .” Lee v. Engle, C.A. No. 13323, 1995 Del. Ch. LEXIS 149, at *12 (Del. Ch. Dec. 15, 1995), clarified by Lee v. Engle, 1998 Del. Ch. LEXIS 122 (Del. Ch. June 19, 1998).

Under the Delaware Rules of Civil Procedure, need for disclosure of factual or ordinary work product arises “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Del. Ch. Ct. R. 26(b)(3). (emphasis added).

Unique, immediate impressions of fact. In Mullins v. Vakili, the Court found that the plaintiff failed to show substantial need for notes taken by an insurance claim adjuster of statements made by the defendant doctor when the statements were made two-months after the incident, because they were not “unique, immediate impressions of the facts.” 506 A.2d 192, 200 (Del. Super. Ct. 1986).

1.6:730 Opinion Work Product

Opinion work product “includes attorney’s mental impressions, conclusions, opinions, and legal theories.” E. I. Du Pont De Nemours and Co. v. Admiral Ins. Co., No. 89C-AU-99, 1992 Del. Super. LEXIS 517, at *8 (Del. Super. Ct. Dec. 23, 1992)

Under the Delaware Rules of Civil Procedure, “[i]n ordering discovery of such materials when the required showing has been made, the Court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Del. Ch. Ct. R. 26(b)(3). The language in Del. Ch. Ct. R. 26(b)(3) does not “establish…an impenetrable barrier to discovery of opinion work product,” but rather requires “additional protection of opinion work product . . .” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 261-2 (Del. 1995). Rule 26(b)(3) requires “additional protection of opinion work product, [but does not] require its absolute protection. Id. at 262.

In order for a party to overcome Rule 26(b)(3) opinion work product protections, they must show “that it has a more ‘substantial need’ to review opinion work product than would be required for that party to review non-opinion work product.” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 262 (Del. 1995). “[T]he mental impressions must be directed to the pivotal issue in the current litigation and the need for the material must be compelling.” Id. at 262. “[W]aiver of opinion work product protection should only be made in cases of the most egregious conduct by the holder of the privilege. In order to waive a privilege, an individual must know of a particular right and voluntarily and intentionally choose to relinquish it. A waiver does not always have to be expressed, it may also be implied from the circumstances. Saito v. McKesson HBOC, Inc., C.A. No. 18553, 2002 Del. Ch. LEXIS 125, *12 (Del. Ch. Oct. 25, 2002), clarified by Saito v. McKesson HBOC, Inc., 2002 Del. Ch. LEXIS 139 (Del. Ch. Nov. 13, 2002), aff’d, McKesson Corp. v. Saito, 818 A.2d 970, 2003 Del. LEXIS 121 (Del. 2003).

In Tackett, in a bad faith insurance claim, the insurer relied on advice of its counsel to deny a claim. The Court held that the plaintiff had met this burden, because “[a] plaintiff seeking to establish a claim of bad faith in a first-party insured-insurer contractual relationship must show that the insurer lacked reasonable justification in delaying or refusing payment of a claim. As part of its standard claims handling procedure, [the insurer] sought the advice of . . . its outside counsel. Because [the insurer] typically consults with an attorney regarding the value of an insured’s claim, [the insurer’s] rejection of counsel’s advice in [the] case created critical evidence supporting a claim for bad faith, i.e., the rejection of the advice provided significant evidence tending to show a lack of reasonable justification to deny the claim.” The insurer then claimed that the denial was unreasonable, relying on the affidavit of one of its lawyers who had reviewed the claim. Id. at 262-3. For a bad faith insurance case where disclosure of work product information was not ordered, see Clausen v. National Grange Mut. Ins. Co., 730 A.2d 133, 143-4 (Del. Super. Ct. 1997) (finding it had too new a record).

Separating non-opinion and establishing need. In Merisel, Inc. v. Turnberry Capitol Mgmt., L.P., the counterclaimant wanted notes taken by claimant’s attorney during conference calls. C.A. No. 15906-NC, 1998 Del. Ch. LEXIS 136, *4 (Del. Ch. Aug. 5, 1998). Plaintiff refused on grounds that these notes contained the opinion work-product of the attorney and that counterclaimant could get the material by deposing those that took part in the conference call. Counterclaimant countered that the attorney was just taking minutes and not acting as an attorney preparing for anticipated litigation, and that they needed the notes because those interviewed no longer remembered the content of the conversation. Also, those party to the conversation were majority shareholders of the plaintiff and thus would be reluctant to divulge the information. The Court requested to see the material in camera and “[t]o the extent [the attorney] took notes of ‘who said what,’ as any attendee could have, those notes may be segregable and produced.” But “[t]o the extent [the attorney] gathered historical facts or recorded her subjective thoughts with a view toward rendering legal advice to plaintiff and developing a litigation strategy . . . the notes may be protected by the work product doctrine.” Id. at *4. The Court found that counterclaimant had not “exhausted all other avenues for obtaining the relevant information,” because they had “not yet disposed all participants in the conference calls” and the counterclaimant had not met the burden of showing what was needed to overcome the work product doctrine. Id. at *5-6.

“[P]roduction of opinion work product should not be ordered without an in camera examination by the trial court . . .” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 263 (Del. 1995).

1.6:740 Invoking Work-Product Immunity and Its Exceptions

(see 1.6:720 Ordinary Work Product and 1.6:730 Opinion Work Product for information specific to those types).

Invoking & review

“[P]roduction of opinion work product should not be ordered without an in camera examination by the trial court” requiring a showing “of a factual basis adequate to support a good faith belief by a reasonable person that [the] in camera review of the materials may reveal evidence to establish the claim. . . . If the party seeking disclosure meets this burden, the trail court may exercise its discretion in reviewing the materials and require production under the compelling need standard.” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 263 (Del. 1995).

Burden. “Under Delaware law, the burden with respect to a claim of [work product] privilege is on the party asserting such a claim. An improperly asserted claim of privilege is no claim of privilege at all. The documents must be sufficiently described to provide the court with a basis upon which to weigh the assertion of privilege. A bare allegation that information contained in the documents is privileged will be insufficient to justify withholding such documents. Each category of documents identified . . .will be reviewed in accordance with this standard. The sufficiency of description . . .is satisfied by a showing of: (a) the identity and corporate position of the person or persons interviewed or supplying the information; (b) the place, approximate date, and manner of recording or otherwise preparing the instrument; (c) the names of the person or persons . . . participating in the interview and preparation of the document; and (d) the name and corporate position, if any, of each person to whom the contents of the document have heretofore been communicated by copy, exhibition, reading, or substantial summarization.” (citations omitted) Council of Unit Owners of Sea Colony East v. Carl M. Freeman Assoc., Inc., C.A. Nos. 86C-AU-52, et al., 1990 Del. Super. LEXIS 364, *3-4 (Del. Super. Ct. 1990).

Disclosure requirements and consequences. Delaware does not have the equivalent of Federal Rules of Evidence Rule 26(b)(5) that waives privilege when a party withholds information and does not include a descriptive summary of the material withheld. Wolhar v. General Motors Corp., 712 A.2d 457, 463 (Del. Super. Ct. 1997). Delaware Rules of Evidence, Rule 33(b)(4) requires that objections be “stated with ‘specificity,’ but does not mention or require the submission of a descriptive summary of the materials withheld.” Id. “The Delaware Rules do not expressly require such a submission contemporaneously with the assertion of privilege.” Id. at 464. In Wolhar, the Court found that the defendant had been late in its submission of the privilege logs, but was “not so untimely as to require the harsh sanction of waiver.” Id.

Standard of Review. De novo review is used by a reviewing court “on the question of whether a trial court correctly applied . . . the work product doctrine.” Id. at 258.

Exceptions – “Substantial Need”

(See 1.6:720 Ordinary Work Product and 1.6:730 Opinion Work Product for specific rules and examples applying to each category of work product).

The rational behind the “substantial need/ undue hardship test” is that “[w]here the benefit to the resolution of the case outweighs the potential injury to the party from whom discovery is sought, disclosure may be required.” In re Sutton, C.A. No. 96M-08-024, 1996 Del. Super. LEXIS 532, *47 (Del. Super. Ct. Aug. 30, 1996).

In Rowlands v. Lai, the court found substantial need when the defendant could not be located and the party to whom the defendant made statements chose not to answer questions pertaining to conversations with the defendant during the discovery process. C.A. No. 95C-06-006 (JTV), 1999 Del. Super. LEXIS 161, *6 (Del. Super. Ct. Apr. 6, 1999).

Exceptions – Fiduciaries

In Riggs Nat’l Bank of Washington, D.C. v. Zimmer, the Court applied what appears to be a slightly lower standard of substantial need in cases involving beneficiaries and a trust’s attorney. The Court found substantial need where the “production of the opinion would fill a needed factual gap not available, at least not with the same degree of accuracy, from any other source.” 355 A.2d 709, 716 (Del. Ch. Apr. 1976). The Court in Riggs concluded that public policy weighs against allowing the invocation of work-product immunity against beneficiaries by an attorney working on behalf of the trust. Id. at 716.

1.6:750 Waiver of Work-Product Immunity by Voluntary Acts

Knowingly

Work product immunity may be deemed waived when done knowingly rather than by “simple mistake.” Monsanto Co. v. Aetna Casualty and Surety Co., No. 88C-JA-118, 1994 Del. Super. LEXIS 261, *17 (Del. Super. Ct. May 31, 1994) (following Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103 (S.D.N.Y. 1985).

Egregious

“Because work product is accorded such great protection, waiver is rarely found except in the most egregious of circumstances.” Rowlands v. Lai, C.A. No. 95C-06-006 (JTV), 1999 Del. Super. LEXIS 161, *5 (Del. Super. Ct. Apr. 6, 1999). “Delaware courts vigorously protect work product and treat waiver as an extremely harsh result. Waivers are meant to punish those who do not protect the secrecy of their work product from adversaries during discovery but then wish to prevent that disclosed work product from being introduced as evidence at trial.” Saito v. McKesson HBOC, Inc., C.A. No. 18553, 2002 Del. Ch. LEXIS 125, *28 (Del. Ch. Oct. 25, 2002), clarified by Saito v. McKesson HBOC, Inc., 2002 Del. Ch. LEXIS 139 (Del. Ch. Nov. 13, 2002), aff’d, McKesson Corp. v. Saito, 818 A.2d 970, 2003 Del. LEXIS 121 (Del. 2003).

Disclosure, but not waiver

“Disclosure of work product does not negate its protection unless the disclosure is ‘inconsistent with the maintenance of secrecy from the disclosing party.’” Saito v. McKesson HBOC, Inc., C.A. No. 18553, 2002 Del. Ch. LEXIS 125, *13 (Del. Ch. Oct. 25, 2002), clarified by Saito v. McKesson HBOC, Inc., 2002 Del. Ch. LEXIS 139 (Del. Ch. Nov. 13, 2002), aff’d, McKesson Corp. v. Saito, 818 A.2d 970, 2003 Del. LEXIS 121 (Del. 2003). The question of whether a disclosure constitutes a waiver centers around: “1) did the disclosing party believe its disclosure was confidential; and 2) will the law sanction that expectation.” Id. at *14. “The factors which determine whether privileged documents lose their protections once disclosed to an adversary are as follows: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of discovery and extent of disclosure; and (4) overall fairness, judged against the care or negligence with which the privilege is guarded.” Monsanto Co. v. Aetna Casualty and Surety Co., No. 88C-JA-118, 1994 Del. Super. LEXIS 261, *17-18 (Del. Super. Ct. May 31, 1994). “The application of the factors is simply a balancing process.” Id. at 18.

In Monsanto Co. v. Aetna Casualty and Surety Co., the Court found that the fact that the party claiming the immunity did not mark any of the documents “confidential” or “privileged” was out weighed in their favor by the fact that they “wasted no time in rectifying erroneous disclosure once they became aware of it…the scope of the discovery …was great,” and overall fairness favored the claiming party. No. 88C-JA-118, 1994 Del. Super. LEXIS 261, *19-21 (Del. Super. Ct. May 31, 1994). The fairness conclusion was reached because the papers were produced “in good faith compliance with a discovery request, there was no reason to believe that protected material would be included, it was unclear how the opposing party came into possession of the papers, and the claiming party took prompt action to retrieve the papers. Id. at *20-21.

Common Interest” exception

“Disclosures to a third party do not waive attorney work product when the disclosing party and its recipient share some common interest.” Saito v. McKesson HBOC, Inc., C.A. No. 18553, 2002 Del. Ch. LEXIS 125, *14 (Del. Ch. Oct. 25, 2002), clarified by Saito v. McKesson HBOC, Inc., 2002 Del. Ch. LEXIS 139 (Del. Ch. Nov. 13, 2002), aff’d, McKesson Corp. v. Saito, 818 A.2d 970, 2003 Del. LEXIS 121 (Del. 2003). “This ‘common interest exception’ or ‘joint prosecution privilege’ will attach when the persons sharing the information have a common adversary or share a common interest in litigation.” Id. at *15. “The traditional example of this is co-defendant situations.” Id. In Saito, the Court found that the defendant and the SEC did not share a “common interest” to satisfy the exception when the defendant cooperated with the SEC and shared information it later wanted to claim as having work product immunity. Id. at *16. The defendant knew it was the target of a SEC probe, there were investigations from two different agencies’ enforcement arms, the enforcement agents “were not ‘friendly’” to the defendant, and the defendant conceded that the SEC “expressly disavowed sharing a common interest with the defendant.” Id. at *17-18.

Confidentiality Agreement

“Another instance in which a disclosing party’s expectations of privacy may be heightened is when that party secures a confidentiality agreement before agreeing to disclosure of privileged information.” Saito v. McKesson HBOC, Inc., C.A. No. 18553, 2002 Del. Ch. LEXIS 125, *14 (Del. Ch. Oct. 25, 2002), clarified by Saito v. McKesson HBOC, Inc., 2002 Del. Ch. LEXIS 139 (Del. Ch. Nov. 13, 2002), aff’d, McKesson Corp. v. Saito, 818 A.2d 970, 2003 Del. LEXIS 121 (Del. 2003). See selective waiver.

Selective waiver to law enforcement

The Court in Saito v. McKesson HBOC, Inc. adopted a rule that allowed for selective waiver of work product, when the selective disclosure is made to a law enforcement agency and pursuant to a confidential agreement. C.A. No. 18553, 2002 Del. Ch. LEXIS 125, *39 (Del. Ch. Oct. 25, 2002), clarified by Saito v. McKesson HBOC, Inc., 2002 Del. Ch. LEXIS 139 (Del. Ch. Nov. 13, 2002), aff’d, McKesson Corp. v. Saito, 818 A.2d 970, 2003 Del. LEXIS 121 (Del. 2003).

Partial disclosure

“The [work product] privilege may be surrendered upon disclosure of part of a privileged document; however the privilege is only surrendered as to the subject matter of the disclosed information.” Rowlands v. Lai, C.A. No. 95C-06-006 (JTV), 1999 Del. Super. LEXIS 161, *4-5 (Del. Super. Ct. Apr. 6, 1999).

Work product waiver and attorney-client privilege

“Waiver of attorney-client privilege does not automatically relinquish the protections provided by the work product doctrine.” Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 261 (Del. 1995).

1.6:760 Waiver of Work-Product Immunity by Use in Litigation

“Under exceptional circumstances a party may be deemed to have waived the work product immunity if he raises issues, asserts defenses, or presents evidence in the litigation that necessarily requires disclosure of opinion work product.” Phillips Petroleum Co. v. Arco Alaska Inc., No. 7177, 1986 Del. Ch.. LEXIS 489, *9 (Del. Ch. Dec. 16, 1986), quoted in Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 258 (Del. 1995). “Implicit in this waiver concept are the conditions that the subject matter work product must be directly at issue and that the need for production of the work product must be compelling. [citations omitted]. Although applied consistently with concepts of fairness, the waiver exception is also to be narrowly construed. Phillips Petroleum Co. v. ARCO Alaska, Inc., C.A. No. 7177, 1986 Del. Ch. LEXIS 489, *10 (Del. Ch. Dec. 16, 1986). “[A] waiver of the attorney-client privilege does not always necessarily, or as a general matter, operate as a wavier of the protection afforded to related work product.” Id. at *10-11

In Tackett, involving a wrongful handling of an insurance claim case, the Court found that to deny waiver “would require a plaintiff, and the Court to accept as true the insurer’s assertion that it handled the claim in a proper manner,” which went against the notion of fairness in litigation. Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 263 (Del. 1995).

In Philip Petroleum, the judge did independent analysis to see if work product immunity had been waived after determining that attorney-client privilege had been waived. The Court found it needed to answer two questions, (1) the linkage between the documents and party’s use “to prove its own subjective intent,” and (2) the compelling need of the opposing party to gain the documents through discovery. Phillips Petroleum Co. v. ARCO Alaska, Inc., C.A. No. 7177, 1986 Del. Ch. LEXIS 489, *11 (Del. Ch. Dec. 16, 1986). The Court found that because no one involved with the drafting of the documents could recall their contents, a compelling need was created. Although there was no proof of a factual connection, the Court held the opposing party was entitled to examine the document and depose persons in connection with it. Finally, the Court concluded that “[b]y introducing the [document] in the arbitration to show its intent as to the redetermination agreement, [the work-product claiming party] put the subject matter of its corporate intent into issue,” so the opposing party had “a compelling need to obtain . . . documents that are relevant to that issue.” Id. at 13-14.

When one claims attorney’s fees, protected information related to reasonableness is put “at issue” and work product protection is waived. E. I. Du Pont De Nemours and Co. v. Admiral Ins. Co., No. 89C-AU-99, 1992 Del. Super. LEXIS 517, at *10 (Del. Super. Ct. Dec. 23, 1992)

Refreshing a witness’s memory. Delaware Rule of Evidence 612(b) can give the trial judge discretion to cause work product immunity to be waived, when work product material is used to refresh a witness’s memory prior to testifying. Lowe v. White and Spicer, C.A. No. 88C-DE-4, 1990 Del. Super. LEXIS 441, at *2-3 (Del. Super. Ct. Nov. 2, 1990).

1.6:770 Exception for Crime or Fraud

No relevant information available.