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Directors need access to basic information about the corporation they manage in order to fulfill their fiduciary duties. Current directors of a corporation have a near-absolute right to inspect the corporation’s books and records, including the privileged legal advice the corporation seeks and obtains. Recent case law exploring the boundaries of this right illustrates that in practice the analysis is more nuanced. The Appellate Division, First Department, ruled last month in Barasch v. Williams Real Estate,1 that a corporate director and shareholder whose interests are adverse to those of the corporation is not entitled to obtain the corporation’s attorney-client privileged communications concerning that director’s rights. Relatedly, courts continue to debate whether former directors are entitled to obtain privileged communications between the corporation and its lawyers made during their tenure on the board in order to support a post-tenure claim or defense.

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