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In his most recent article published in The Legal Intelligencer, Buchanan Ingersoll & Rooney litigator Kenneth L. Racowski discusses control of a seller’s attorney-client privilege in litigation involving mergers, asset acquisitions or other change-in-control transactions. Noting two recent cases, Racowski analyzes the current law in key jurisdictions and offers practical advice on how best to address the treatment of attorney-client privileged material in a transaction.

Racowski delves into the question under New York, Delaware and Pennsylvania state law, as well as treatment under federal law, and how each jurisdiction has handled these types of matters differently. He suggests addressing privilege early in negotiations, knowing the differences in the law of your jurisdiction, adding contractual provisions that explicitly address privilege and taking proactive steps to avoid a waiver.

“Understanding the impact of these two cases is important for both transactional attorneys and litigators advising their clients, whether sellers or buyers, on how best to address the treatment of pre-closing, attorney-client privileged communications and documents post-closing,” he writes. 

Read what else Racowski suggests in his article – “Post-Closing Control of Seller's Attorney-Client Privilege in M&A” (The Legal Intelligencer, June 30, 2015) Subscription required.