The Availability of the Attorney-Client and Work-Product Privileges in Shareholder Litigation
In Garner v. Wolfinbarger, the United States Court of Appeals for the Fifth Circuit broke important ground in the law of the attorney-client privilege. The court held that in securities litigation in which the officers and directors of a corporation are charged with having acted inimically to shareholder interests, a plaintiff is entitled to show "good cause" why the privilege should not be invoked by the corporation to preclude discovery of relevant evidence. This decision has been applauded and followed by most federal courts. At the same time, the efficacy of such principles has been substantially undercut by unwarranted glosses placed upon Garner by a handful of district courts. This article will explore the antecedents and progeny of the Garner decision. It will demonstrate the analytical errors which have threatened to undermine the salutary purposes of the Garner doctrine, suggest the proper framework for resolution of the Garner questions recurring in shareholder litigation, and review legal authority which may provide access to relevant attorney-client communications that remain unavailable after simple application of the Garner doctrine.
Donald B. Lewis, The Availability of the Attorney-Client and Work-Product Privileges in Shareholder Litigation, 32 Clev. St. L. Rev. 189 (1983-1984)