It is routinely the case that, following entry into an agreement of merger, two merging entities will share documents as part of their overall due-diligence process to effectuate the ultimate closing of the merger. Such shared materials can include sensitive documents relating to pending or anticipated litigation involving the company that is being acquired in the merger, which begs the question of whether, in subsequent litigation, a third party, such as the individual or entity with which the target company had anticipated litigation, may obtain discovery of the materials that were shared between the merging entities prior to the merger.