Presenting a live 90-minute webinar with interactive Q&A Attorney-Client Privilege in M&A Deals: Lessons From Recent Cases for Preserving and Controlling the Privilege MONDAY, DECEMBER 21, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Lisa R. Bugni, Partner, Alston & Bird , Atlanta Gregory A. Markel, Partner, Cadwalader Wickersham & Taft , New York The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Attorney-Client Privilege in M&A Deals: Lessons from Recent Cases for Preserving and Controlling the Privilege Gregory A. Markel greg.markel@cwt.com www.alston.com Cadwalader, Wickersham & Taft LLP
PRE-CLOSING PRIVILEGE ISSUES 6
Basic Elements of Attorney-Client Privilege A communication; Made between eligible persons ( i.e., attorney, client or agent); In confidence; and For the purpose of obtaining or providing legal assistance for the client. Restatement (Third) of the Law Governing Lawyers § 68. 7
Work-product Doctrine Under the work- product doctrine, “tangible material or its intangible equivalent” that is collected or prepared in anticipation of litigation is not discoverable. Work product not absolute privilege If the party unable to obtain the information has no other means of obtaining the information without undue hardship privilege will not apply The materials may have been prepared by anybody as long as they were prepared with an eye towards the realistic possibility of impending litigation. Originated with Hickman v. Taylor
Attorney-Client Privilege Issues in M&A Deals The attorney-client privilege is usually waived when a communication is disclosed to a third party. This raises issues in M&A deal settings because companies in the course of these transactions generally disclose sensitive information to prospective deal parties and to other members of the transaction team, such as investment bankers, other financial advisors and consultants. The common interest doctrine serves to protect such confidential communications. The doctrine generally allows “persons who have common legal interests to coordinate their positions without destroying the privileged status of their communications with their lawyers.” Restatement (Third) of the Law Governing Lawyers § 76 cmt. b. However, the scope of that protection varies depending on jurisdiction. 9
History of the Common Interest Doctrine The common interest privilege is an expansion of the attorney-client privilege, which protects from disclosure confidential communications made for the purpose of providing legal advice between an attorney and his or her client. See Upjohn Co. v. United States , 449 U.S. 383, 390 (1981). Courts initially developed the precursor to the common interest doctrine — the joint defense privilege — to allow the attorneys of criminal co-defendants to share confidential information about defense strategies without waiving the privilege. See Chahoon v. Commonwealth , 62 Va. 822, 841-42 (1871). In 1942, the Minnesota Supreme Court extended the joint defense privilege from the criminal to the civil context in finding that co-defendants in a personal injury suit do not waive the attorney-client privilege by making disclosures to counsel representing co-defendants on the same side of the same litigation. See Schmitt v. Emery , 2 N.W.2d 413, 416 (Minn. 1942). Once the doctrine spread to the civil context and began to protect plaintiffs as well as defendants, most courts adopted the broader term “common interest doctrine.” 10
Preserving Privilege – The Common Interest Doctrine In order for the common interest privilege to apply, the parties must show that: (1) the communication is protected by attorney-client privilege and (2) the communication is made in order to further a legal interest or strategy common to the parties. See , e.g. , Ambac Assur. Corp. v. Countrywide Home Loans, Inc. , 124 A.D.3d 129, 134 (1st Dep't 2014). Communications concerning business or commercial issues are not privileged even if the parties to the communication have a common interest. In re Quest Software Inc. Shareholders Litig. , No. CV 7357- VCG, 2013 WL 3356034, at *4 (Del. Ch. July 3, 2013); see Ambac , 124 A.D.3d at 134. Questions about the applicability of the common interest privilege frequently arise because (1) individuals often play both business and legal roles in transactions and (2) conversations often cover both business topics and legal advice or legal strategy. 11
Preserving Privilege – The Common Interest Doctrine Since 1980, Delaware has had a codified common interest privilege as follows: “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . (3) by the client or the client’s lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another in a matter of common interest. ” Del. R. Evid. 502(b)(3). 12
Preserving Privilege – The Common Interest Doctrine Delaware Reads Common Interest Broadly In re Quest Software Inc. S’holders Litig. , 2013 WL 3356034 (Del. Ch. July 3, 2013) Quest shareholders sought the discovery of documents from Quest, including unredacted versions of all notes, minutes and draft minutes of the special committee meetings regarding the merger at issue in the litigation. Shareholders argued that Quest had waived the attorney-client privilege over these communications by disclosing them to third parties, including counsel for Morgan Stanley, the financial advisor for the Special Committee. The Delaware Chancery Court, however, ruled that these documents were protected by the common interest doctrine, because “the parties all shared a legal interest in the potential legal risk” of accepting the deal at issue. 13
Preserving Privilege – The Common Interest Doctrine Delaware Reads Common Interest Broadly (continued) Delaware law “sanctions the privilege's application to attorney - client communications including an investment banker, especially within the context of a pending transaction,” where the discussions “involved legal issues regarding the transaction.” 3Com Corp. v. Diamond II Holdings, Inc. , 2010 WL 2280734, at *4-6 & n.18 (Del. Ch. May 31, 2010). Analysis depends on whether parties’ positions were adverse to each other “at the time each challenged communication was made. If the parties were in common interest with respect to the matters addressed, the communication will remain privileged.” Id . at *8. 14
Preserving Privilege – The Common Interest Doctrine New York Has Recently Undergone a Shift Towards Broader Coverage Ambac Assur. Corp. v. Countrywide Home Loans, Inc. , 124 A.D.3d 129 (1st Dep’t 2014) The court broke with the previous approach followed in New York, wherein application of the common interest privilege required pending or reasonably anticipated litigation . It held that the common interest privilege could apply to preclosing communications between Bank of America and Countrywide and their counsel where the parties (a) signed a merger agreement without contemplating litigation; (b) signed a confidentiality agreement governing preclosing exchanges of information; and (c) needed shared advice of counsel “in order to accurately navigate the complex legal and regulatory process involved in completing the transaction.” 15
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