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Polsinelli - Financial and Fiduciary Litigation

November 2013


A Tale of Two States: Access to Attorney-Client Privilege Materials in Intra-Corporate Disputes Involving Close Corporations


Financial and Fiduciary Litigation Professionals:


Robert A. Henderson

Practice Area Chair


John M. Kilroy, Jr.

Practice Area Vice Chair


Todd H. Bartels
Charles R. Berry
Stacy A. Carpenter
Lauren Wojtowicz Cohen
Peter A. Corsale
John J. Curry, Jr.
Michael P. Cutler
S. Jay Dobbs
Michael S. Foster
William J. Gust
Larry K. Harris
Melissa S. Ho
Wesley D. Hurst
Paula S. Kim
Rodney L. Lewis
James P. Martin
Brendan L. McPherson
James R. Miller
Mark A. Olthoff
Robert A. Penza
Robert J. Selsor
Leon B. Silver
Paul D. Sinclair
Helmut Starr
Thomas H. Wagner
Robert E. Ward II
Paul R. Wood


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Most people communicating with their lawyer rightfully believe their discussions are privileged and cannot be disclosed to others without permission. However, when litigation ensues, because the attorney-client privilege interferes with full discovery and testimony, the privilege is strictly construed. Particularly in the context of disputes between shareholders, directors, officers and corporations, the lines have become blurred whether, and to what extent, otherwise privileged communications may be discovered in litigation. Two courts recently reached opposite results in deciding whether privileged communications should be produced to the parties' adversaries in litigation. While both courts were careful to note that they were basing their decisions upon the peculiar facts in the case, the differing results are remarkable.

In Chambers v. Gold Medal Bakery, Inc., 983 N.E.2d 683 (Mass. 2013), the Massachusetts Supreme Court held that directors/shareholders of a closely-held company who were adverse to the corporation did not have the right to obtain privileged corporate communications. The Court recognized that, although directors may generally have a right to access the company's books and records, and have fiduciary duties to manage the corporation, those principles are premised on the notion that the interests are not adverse to those of the corporation.

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About Financial and Fiduciary Litigation

The Financial and Fiduciary Litigation practice delivers common sense advocacy in the most highly-regulated and complex areas of the law. Whether in Chancery Court in Delaware, federal or state courts throughout the United States, or before regulatory agencies, exceedingly knowledgeable trial lawyers work closely with the firm's corporate finance transactional attorneys to provide seamless representation of our clients. [More ...]



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