Barry M. Klayman and Mark E. Felger

In Shareholder Representative Services v. RSI Holdco, C.A. No. 2018-0517-KSJM (Del. Ch. May 29), Vice Chancellor Kathleen McCormick addressed the question of when a buyer may use the acquired company's privileged, pre-merger attorney-client communications in post-closing litigation against the seller? In this case, the sellers had secured a provision in the merger agreement which preserved their ability to assert privilege over pre-merger attorney-client communications. The provision also expressly precluded the buyer from using or relying on those privileged communications in post-closing litigation against the sellers. Nevertheless, the buyer argued that, because the sellers did not remove or segregate the privileged communications from the acquired company's computers and email servers transferred to the surviving company, they had waived any privilege and the buyer could use the communications in litigation against the sellers. The vice chancellor disagreed.

The factual background of the dispute was neither complicated nor uncommon. The buyer acquired the sellers' company pursuant to an agreement and plan of merger. Through the merger, the buyer obtained possession of the sellers' computers and servers containing approximately 1,200 pre-merger emails between the sellers and their outside counsel advising them in the transaction. At the time the communications were made, they were presumptively privileged. The privileged emails were not removed or segregated from the sellers' other communications when the merger closed.

Section 13.12 of the merger agreement addressed pre-merger privileged communications. That section: preserved any privilege attaching to pre-merger communications as a result of the representation of sellers by sellers' counsel in connection with the merger; assigned control over those privileges to a representative of the sellers; required the sellers and buyer to take steps necessary to ensure that the privileges remained in effect; and prevented the buyer and its affiliates from using or relying on any of those privileged communications in post-closing litigation against the sellers.

The sellers commenced this litigation against the buyer, claiming that the buyer had breached the merger agreement and a related agreement by failing to pay a holdback amount withheld from the purchase price. The buyer asserted counterclaims against the sellers. The dispute over the privileged emails had surfaced earlier during negotiations over various purchase price adjustments. The buyer had informed the sellers that it had discovered the allegedly privileged emails and took the position that they were not privileged, which the sellers disputed. In the Court of Chancery action, the buyer filed a motion for disposition of the privilege dispute, seeking full, unfettered access to the emails. The sellers cross-moved for entry of a protective order.

In Great Hill Equity Partners IV v. SIG Growth Equity Fund I, 80 A.3d 155 (Del. Ch. 2013), then Chancellor Leo Strine held that, by operation of Section 259 of the Delaware General Corporation Law, all assets of an acquired company, including privileges over attorney-client communications, transfer to the surviving company unless the sellers take affirmative action to prevent transfer of those privileges. Strine found that the sellers in that case had not retained their ability to assert any privilege over the pre-merger, attorney-client communications, because they had not included language in the merger agreement preserving their right to assert privilege over those communications, nor had they done anything to prevent the surviving company from taking possession of those communications. Strine advised that, in the future, sellers should use “their contractual freedom” to exclude from transferred assets the attorney-client communications they wished to retain as their own.

The sellers in the case before McCormick did just that. They obtained a provision in the merger agreement that preserved their privilege over the emails and assigned control over the privilege to their representative. They also included language providing that “none of the parties may use or rely on any of the privileged communications in any action or claim against or involving any of the parties [to the merger agreement] after the closing.”

The buyer argued that the “no-use” clause did not apply to the communications because the emails were no longer privileged at the time of the dispute because any privilege had been waived by the sellers' post-closing conduct. McCormick noted that the merger agreement defined “privileged communications” as any privileged attorney-client communication between sellers and their counsel “prior to the closing date.” She held that the definition was unambiguous and controlling, and regardless of whether the sellers waived any privilege subsequent to the closing date, the plain language of the “no-use” clause in the merger agreement barred the buyer from using or relying on the emails in the pending litigation.

Moreover, the premise of the buyer's subsequent waiver argument was that the sellers had failed to take steps to remove or segregate the privileged communications from the computer systems before the merger and had done nothing after the merger to retrieve those computer records. McCormick rejected the waiver argument on several grounds. First, she said the  argument would undermine the teaching of Great Hill, that parties could negotiate for contractual protections of pre-merger privileged communications. Second, she said the argument would render the express language of the no-use clause  meaningless. Finally, she said that for the privilege to have been waived post-closing, it would have necessarily been due in part to the buyer's own failure to comply with the merger agreement, which required the parties (including the buyer) to take “steps necessary to ensure that any privilege … shall survive the closing, remain in effect and be assigned and controlled by the [sellers' representative].”

McCormick concluded that the merger agreement operated to preserve the sellers' privilege over the emails; that the sellers' representative had the authority to assert that privilege in the litigation; and that the buyer and its affiliates were barred from using or relying on the privileged emails in the litigation.

Great Hill suggested that the seller of a business could use contractual provisions to protect pre-merger, privileged communications between the seller and its counsel in negotiating the sale agreement. In RSI Holdco, the court validated that course of action against a challenge that would have negated the utility of such contractual protections. The very course that the buyer argued as the basis for its waiver argument—he failure of the sellers to segregate or remove privileged communications prior to the consummation of the merger—would have eviscerated the utility of the contractual protections negotiated by the sellers, presumably to avoid having to undertake the burden and expense of doing so. For those engaged in negotiations for the sale of their business, RSI Holdco provides specimen language that can be used to protect pre-closing, privileged communications and prevent their use in subsequent litigation between the parties, while avoiding the costs of having to screen and scrub files and computer systems prior to the actual closing of the sale.

Barry M. Klayman is a member in the commercial litigation group and the bankruptcy, insolvency and restructuring practice group at Cozen O'Connor. He regularly appears in Chancery Court.

Mark E. Felger is co-chair of the bankruptcy, insolvency and restructuring practice group at the firm.