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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