Litigation involving mergers, asset acquisitions or other change-in-control transactions can give rise to complicated questions concerning the attorney-client privilege. In recent years, a developing body of case law has emerged regarding the control of the attorney-client privilege in the context of mergers and acquisitions. Specifically, courts in different jurisdictions have reached different conclusions as to the ownership and control of the seller’s pre-closing attorney-client privilege following a merger or asset purchase.
Two recent cases—Great Hill Equity Partners IV v. SIG Growth Equity Fund I, 80 A.3d 155 (Del. Ch. Nov. 15, 2013), and Newspring Mezzanine Capital II v. Hayes, No. 14-1706 (E.D. Pa. Dec. 9, 2014)—have shifted what had arguably been the default rule for over a decade.
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