The Delaware Court of Chancery has allowed for partial waiver of attorney-client privilege to support a company’s advice-of-counsel defense and, in rejecting Third Circuit precedent, largely declined to extend that waiver to advice given to non-board members.
Vice Chancellor John W. Noble had to address a discovery dispute between TradingScreen Inc. and shareholders TCV VI LP and TCV Member Fund LP. TradingScreen had argued it made a good-faith decision, based on the advice of counsel, to deny redemption of shares it was contractually obligated to buy back from the TCV parties. TradingScreen argued the special committee designated to address the buy-back request determined full payment would threaten its ability to remain a going concern.
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