A stockholder of a Delaware corporation has a qualified statutory right under section 220 of the Delaware General Corporation Law to inspect the books and records of the corporation. Upon demonstrating a proper purpose and meeting the statute’s form and manner requirements, the stockholder is entitled to access documents in the corporation’s possession, custody or control that are necessary to satisfy that proper purpose. Recent Delaware decisions addressing whether email communications exchanged between corporate directors or officers on their personal email accounts or personal devices qualify as documents in the corporation’s possession or control have reached varying results.
Traditionally, Delaware courts have concluded that documents in the possession of a current or former outside director to which the corporation lacks access, including emails on personal email accounts, are not subject to inspection because such documents are not in the corporation’s possession or control. This year, two Court of Chancery cases—decided within one day of each other—reached differing conclusions regarding whether such communications are subject to inspection.
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