This article examines an aspect of the law of attorney-client privilege that is often of critical importance to corporate and transactional lawyers, as well as their litigation brothers and sisters: Who owns the privilege when a dispute arises between a parent and a former subsidiary? The article will examine a trio of cases and draw from them some important lessons for both in-house and outside counsel representing entity clients.
The first case chronologically, and the leading case in New York, is Tekni-Plex v. Meyner and Landis, 89 N.Y.2d 123, 674 N.E.2d 663, a New York Court of Appeals decision from 1996. The case involved the sale in 1994 of Tekni-Plex, a manufacturer and packager of products for the pharmaceutical and other industries. The sale of the company, incorporated under the laws of Delaware in 1967, was by way of a merger agreement, to TP Acquisition Company (Acquisition), whereby the sole shareholder of Tekni-Plex, Tom Y.C. Tang, sold the company to Acquisition for $43 million.
