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Barry M. Klayman and Mark E. Felger Barry M. Klayman and Mark E. Felger

Who controls the privilege for a seller’s pre-sale attorney-client communications in the case of an asset purchase transaction? In DLO Enterprises v. Innovative Chemical Products Group, C.A. No. 2019-0276-MTZ, 2020 Del. Ch. Lexis 202 (Del. Ch. June 1, 2020), Vice Chancellor Morgan T. Zurn held that the rule in such cases, unlike the rule in merger cases, is that the privilege for communications regarding an asset purchase agreement and associated negotiations does not pass to the purchaser by default operation of law, but remains with the seller unless the buyer contracts for something different. The vice chancellor also considered how to resolve the issue of the seller’s pre- and post-sale privileged communications that come into the buyer’s possession because they are on email accounts transferred to the buyer in the transaction.

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