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Delaware Court of Chancery Delaware Court of Chancery

The Delaware Superior Court recently elaborated on the common interest doctrine in the context of a merger. In American Bottling v. Repole, C.A. No. N19C-03-048 AML CCLD, Judge Abigail LeGrow held that privileged communications shared with a third party during the final stages of a merger were not subject to the common interest doctrine. Under the common interest doctrine, the attorney-client privilege will not be waived, despite disclosure to a third party, when the communication at issue was between a client or his lawyer and another lawyer who is representing another person in a matter of common interest. This doctrine will only apply, however, when the parties’ shared interest involves primarily legal issues, not a commercial common interest. This commercial versus legal distinction was at the heart of the court’s conclusion in American Bottling.

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