Debate Continues over Former Directors’ Access to Privileged Company Documents

August 24, 2005

Courts have taken different positions on whether former corporate directors who are now adverse to the company may have access during discovery to privileged documents to which they were entitled to access while directors. A Delaware court has said yes, while the Wisconsin Supreme Court has said no.

The Montana Supreme Court agreed with Delaware. The Court agreed with the former director’s argument that “since he was entitled to access these communications at the time they occurred, it would be a perversion of the attorney-client privilege to now deny him access to that information simply because he is no longer a director.” Inter-Fluve, Inc. v. Montana Eighteenth Judicial Dist. Court, 112 P.3d 258, 262 (Mont. 2005).

It will be interesting to see if a consensus ever develops on this issue.