Corporate clients, just like individuals, can enjoy the benefits and protections of the attorney-client relationship, including privilege. One of the most important decisions a corporation may make is whether to merge with, acquire, or be acquired by another company. When engaging in this process, both sides will generally engage in extensive due diligence. It is also common for corporate representatives to share important information, and perhaps the dirty laundry, with their attorneys within the confines of the attorney-client privilege.

Issues can arise postmerger regarding which entity “owns” those privileged communications. For example, if the company being sold has had privileged communications with its attorney, can the surviving company access those communications postmerger? Or are those communications the private property of the sold company?