Del.'s Adoption Of Garner — And Practical Ways To Respond
Law360, New York (August 27, 2014, 10:17 AM EDT) -- On July 23, 2014, the Delaware Supreme Court in Wal-Mart Stores Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW held that plaintiff stockholders, who make a showing of good cause, can inspect documents concerning a corporation's internal investigation even if those documents were otherwise covered by the attorney-client privilege and even if the plaintiffs' inspection demands are made in Section 220 litigation.[1] In so ruling, the Supreme Court expressly adopted the "fiduciary" exception to the attorney-client privilege first announced in a Fifth Circuit appellate decision dating from 1970, Garner v. Wolfinbarger.[2] The court also ruled that Garner does not apply to efforts to protect nonopinion work product, which should be analyzed under Court of Chancery Rule 26(b)(3)....
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