Bass, Berry & Sims attorneys Brant Phillips and Joe Crace authored an article examining the question of who holds the privilege after a transaction closes. The article outlines important case outcomes to answer two specific issues related to the topic:
- When, if ever, the parties to a potential merger can share privileged documents without waiving the privilege.
- Which party controls the attorney-client privilege attached to the acquired company's pre-closing communications after the acquisition has occurred.
As the authors point out in the article, "This discussion highlights that parties to any transaction should pay close attention to the law that might govern any dispute over privilege. As noted above, different jurisdictions have treated these issues in different ways, and whether certain communications are considered privileged or whether the privilege would be deemed waived by certain disclosures might depend on what law applies."
The full article, "Preserving the Attorney-Client Privilege in Change-of-Control Transactions," was published in the October 2015 issue of The M&A Lawyer (this publication is available only with subscription).