The Wheels Are Falling Off the Privilege Bus: What Deal Lawyers Need to Know to Avoid the Crash
Over the last several years, the rise of electronic discovery, the increasing focus of inhouse counsel on business roles, and the increasing complexity of mergers and acquisitions have expanded signifi cantly the volume and type of potentially privileged documents created in connection with mergers and acquisitions. Despite the commonly held perceptions of clients and deal lawyers alike, many communications sent to or from lawyers are not privileged. In addition, courts—and, in particular, the Delaware Court of Chancery—are taking a closer look at the privilege determinations being made by litigants before them. These shifts have important practical impacts on lawyers and clients. This article examines these circumstances and recent decisions in the courts to provide practical advice for deal lawyers.