NY Court Grants Former Directors Access to Privileged Files for Defense
A New York appellate court has affirmed the "unequivocal right" of former directors and officers to access attorney-client privileged documents created during their tenure when needed to defend themselves in a subsequent action.
New York's Appellate Division, First Department, ruled in People v. Greenberg that former corporate directors and officers have an "unequivocal right" to access attorney-client privileged documents created during their service when their conduct is later questioned. The case involved former AIG executives who sought legal memoranda from the company to support their defense against government allegations, arguing they had relied in good faith on advice of counsel.
This ruling significantly impacts corporations and their directors. It clarifies that even after an executive departs, they may be able to compel production of privileged materials for their defense, potentially complicating a company's strategy in settling with government agencies or controlling sensitive information. The decision aligns New York law with a similar 2007 precedent from the Delaware Chancery Court, creating a more consistent standard in key corporate jurisdictions. Corporate counsel must now consider this right when managing internal investigations and D&O indemnification, as a company's waiver of privilege may not prevent former executives from later demanding access to that same information.