The recent decision of Paul Morris v. Spectra Energy Partners (DE) GP, LP et al., C.A. No. 12110-VCG (Del. Ch. May 7, 2018) provides a helpful analysis of the attorney-client privilege in Delaware and certain exceptions thereto. In this master limited partnership dispute, plaintiff asserted that the general partner’s conflicts committee acted in bad faith by knowingly approving a transfer of assets for approximately $500 million less than they were worth.
A discovery dispute arose as to whether emails between counsel for the general partner’s conflicts committee, and the members of that committee and its financial advisor, were privileged. The Court considered the “at issue” and the Garner exceptions to the attorney-client privilege, the latter of which was set forth in Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970). This pithy letter opinion provides a helpful primer on the applicability of these exceptions.