In a ruling this week, Vice Chancellor Lori Will addressed
whether one-half of an evenly divided board could gain access
privileged communications between the corporation and its long-time
outside counsel. In re Aerojet Rocketdyne
Holdings, 2022 Del. Ch. LEXIS 106. She ruled that the
attorney-client privilege could not be used to deny access to
incumbent directors, stating that the "defendants have no
greater claim to the Company's privileged than the
plaintiffs, who are joint clients of Company
counsel".
The Vice Chancellor's ruling gives no indication that she is
applying anything other than Delaware law. This would
seem appropriate in a Delaware court, but shouldn't a choice of
law analysis be applied in deciding the scope of outside
counsel's engagement? For example, did the
counsel's engagement letter include a choice of law
provision?
