Who Owns Privileged E-Mails in a §363 Sale Case? Is Ownership Waived When the Debtor’s Computer Servers Are Sold?
Publication| Bankruptcy & Corporate Restructuring
While Postorivo is one of the first cases addressing who owns the privilege in these scenarios, it will not be the last. In a world where 90 percent of the important documents in discovery are electronically stored information, and in an environment where asset sales are far more common than true debt-to-equity reorganizations, this issue undoubtedly will recur. We will have to await further developments in the case law to have certainty on many issues.