Friday, January 15, 2021
Attorney-Client Privilege in Business Networks
In my ongoing work for the Tennessee Bar Association, I was alerted to a recent Delaware Chancery Court decision of note. The decision is embodied in a December 22, 2020 letter to counsel written by Chancellor Andre G. Bouchard in the case captioned In re WeWork Litigation (Consol. Civil Action No. 2020-0258-AGB). It offers an illustration of the attorney-client privilege challenges that may exist in business associations that operate within networks consisting of affiliated or associated business firms.
The In re WeWork Litigation letter opinion involves a document production dispute. The controversy relates to communications engaged in by discovery custodians employed at Sprint, Inc. but working on behalf of SoftBank Group Corp. Specifically, the Sprint employees assisted SoftBank with document discovery relating to its involvement with The We Company (“WeWork”), a plaintiff in the case. (Sprint is not involved in any substantive way in the litigation. However, at times relevant to the chancellor's opinion, SoftBank owned 84% of Sprint.) The controversy centers around the conduct of Sprint CEO Michael Combes and a Sprint employee, Christina Sternberg. Each provided SoftBank’s chief operating officer with document discovery assistance. As Chancellor Bouchard aptly noted, these Sprint employees “wore multiple hats.” (This comment in the letter opinion reminded me of the U.S. Supreme Court opinion in United States v. Bestfoods, in which the court quotes from Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 779 (5th Cir. 1997): "directors and officers holding positions with a parent and its subsidiary can and do ‘change hats’ to represent the two corporations separately, despite their common ownership.")
Of particular relevance to the dispute, Combes and Sternberg engaged in document production matters with SoftBank’s legal counsel and used their Sprint email accounts in that activity. In response to plaintiffs' discovery requests, SoftBank determined to withhold from production 89 documents that were conveyed to or from Combes’s and Sternberg’s Sprint email accounts. SoftBank's argument was that the communications were privileged. The chancellor’s opinion addresses a motion to compel production of those 89 documents.
Chancellor Bouchard granted the motion to compel production of the documents, finding that Combes and Sternberg did not have a reasonable expectation of privacy when using the Sprint email accounts. As a result, the documents could not constitute “confidential communications” under Delaware Rule of Evidence 502. Importantly, both Combes and Sternberg were afforded--and could have used--other email accounts (affiliated with WeWork or SoftBank, respectively) in their discovery work for SoftBank.
I noted in my summary of this opinion for the Tennessee Bar Association that the case "offers important cautions to businesses desiring to ensure that communications and transmitted documents can be kept in confidence." It is telling in this regard that proprietary email accounts were afforded to Combes and Sternberg to best ensure confidential treatment of their discovery communications, yet no attempt was made to monitor the relevant use of those email accounts as a matter of document control and discovery policy. Accordingly, I noted that it seems prudent, in light of Chancellor Bouchard’s decision, to suggest that business firms and their legal counsel review operative existing document custody and retention guidance (in the form of compliance policies and the like) to evaluate whether they include appropriate control mechanisms geared to best ensuring the confidential treatment of privileged communications and documents. As the facts of the In re WeWork Litigation opinion indicate, this may be especially important for businesses that operate within a networked system of firms.