January 01, 2016

Privilege: Acquisition and Merger: Whose Privilege Is It Now?

Edna Selan Epstein

Consider five scenarios:

  1. Two corporations have merged. One claims an attorney-client privilege with respect to its pre-merger general communications with its attorneys in litigation with the surviving corporation.
  2. Two corporations have merged. One claims an attorney-client privilege with respect to its pre-merger specific communications with its attorneys in litigation with the surviving corporation.
  3. A selling corporation has sold all of its assets. The selling corporation claims attorney-client privilege with respect to documents it inadvertently left on computer and backup systems that were a part of the sale.
  4. A selling corporation has sold all of its assets. Before the sale, it has deleted all documents it deemed to be privileged. The purchasing corporation seeks to retrieve those deleted documents. Paper versions and backup files exist.
  5. Two corporations enter into a merger or a sale-of-assets agreement. The agreement excludes from the transaction any attorney-client privileged communications.
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