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Delaware Joins Trend of Eroding Attorney-Client Privilege Protection of Investigation Materials


In a decision with potentially far-reaching ramifications for companies conducting internal investigations, the Delaware Supreme Court in Wal-Mart Stores, Inc. v. Indiana Elec. Workers Pension Trust Fund IBEW (July 23, 2014) ordered Wal-Mart to hand over attorney-client privileged documents describing how it set up its investigation into Mexican bribery allegations. The Delaware Supreme Court held that, under the Garner exception, which allows stockholders to invade a corporation’s attorney-client privilege to prove a fiduciary breach by those in control of the corporation upon showing of good cause, Wal-Mart was required to comply with the stockholders’ request for information relating to the investigation, the potential of a cover-up, and the reports provided to the board of directors.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Gail D. Zirkelbach
Partner – Los Angeles
Phone: +1 213.443.5549

David J. Ginsberg
Partner – Los Angeles
Phone: +1 213.443.5545

Crowell & Moring LLP is an international law firm with approximately 550 lawyers representing clients in litigation and arbitration, regulatory and policy, and transactional matters. The firm is internationally recognized for its representation of Fortune 500 companies in high-stakes litigation, as well as its ongoing commitment to pro bono service and diversity, equity and inclusion. The firm has offices in Brussels, Doha, London, Los Angeles, New York, Orange County, San Francisco, Shanghai, and Washington, D.C.

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