A number of courts have recently debated whether companies may assert a privilege claim when former directors seek the production of privileged documents to which they had access while serving as directors. At first blush, it would seem odd to deny access to documents which would have been freely available to directors during their tenure on the board.
Some courts have found that corporations may not withhold such privileged documents from former directors, while others have taken the opposite approach. The court in Genova v. Longs Peake Emergency Physicians, P.C., 72 P.3d 454, 463 (Colo. Ct. App. 2003) agreed with the latter approach. Noting that the former director was now adverse to the company, the court held that “the privilege may be asserted against an adverse litigant”—even if the litigant previously had access to the privileged documents.
With the increasing frequency of corporate litigation involving adverse former directors, lawyers should become familiar with this debate, and the rule that the pertinent court is likely to follow.