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Court Of Chancery Explains Privilege Limits Involving Corporate Investigations

Posted In Discovery

Akorn Inc. v. Fresemus Kabi A.G., C.A. 2018-0300-JTL (May 22, 2018) and Sandys v. Pincus, C.A. 9512-CB (July 2, 2018)

Corporate investigations present complicated issue surrounding what must later be produced in litigation. Context means everything in those disputes. Discovery into the decision by a SLC is much more limited than in other litigation, for example. But these two transcript rulings are useful for their insights into how the Court of Chancery handles disputes over discovery into the investigation process.

The Akorn case, for example, makes it clear that using lawyers to investigate technical factual matters will not shield the process from discovery into the investigation. Moreover, just adding a lawyer to a CC or BC will not alone make that communication privileged.

The Sandys case holds that the documents given to a SLC and notes of witness interviews relied on by the SLC are also discoverable, even in the limited area of testing the SLC’s independence and processes.