Preserving a Seller’s Attorney-Client Privilege After Great Hill

January 2, 2014

Publication| Corporate & Chancery Litigation

In Great Hill Equity Partners IV v. SIG Growth Equity Fund I, Del. Ch., C.A. No. 7906-CS (Nov. 15, 2013), alawsuit arising from a private-company merger, the buyer discovered certain of the seller’s privilegedcommunications, including privileged communications concerning the merger negotiation, in computer filesthat had been delivered to the buyer in the merger. The Delaware Court of Chancery held that under Section259 of the Delaware General Corporation Law, the seller’s attorney-client privilege, including the seller’sprivileged communications concerning the merger negotiation, vested in the surviving corporation, which,following the merger, was a wholly owned and controlled subsidiary of the buyer. In this article, we identifyseveral issues that emerge from the decision for practitioners’ consideration.

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