In 2013, then Chancellor Leo Strine determined that under Section 259 of the Delaware General Corporation Law the attorney-client privilege held by the target company follows to the surviving company after a merger. Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 80 A.3d 155, 156-58 (Del. Ch. 2013). This triggered several posts, including Is The Attorney-Client Privilege An Asset?, More On Asset Sales And The Attorney-Client Privilege, and Attorney-Client privilege In M&A Transactions.

Recalling these 10-year old posts, I took note of a decision by the Delaware Superior Court in bioMerieux, Inc. v. Rhodes, 2024 WL 2076661 (Del. Super. Ct. May 9, 2024). In that case, Judge Sheldon K. Rennie noted the general rule, but noted that the result could be avoided by contractually providing to whom the privilege should pass. In bioMerieux, the merger agreement provided that the privilege regarding the merger agreement, escrow agreement and the transactions contemplated thereby "shall be the sole privilege of the Company Securityholders and the Securityholders’ Representative". Thus, the only issue was whether the disputed communication "regarded" the merger agreement. Judge Rennie decided that it did.