Hexion Specialty Chemicals Inc., et al. v. Huntsman Corp., Del. Ch., C.A. No. 3841-VCL, Lamb, V.C., letter op.

In a suit brought by Hexion seeking a declaratory judgment relating to a proposed merger between Hexion and Huntsman, plaintiff Hexion moved to compel the production of an e-mail, inadvertently produced by Huntsman and subject to a claim of attorney-client privilege. The e-mail in question was sent by Huntsman’s outside counsel to other outside counsel and Huntsman’s general counsel, and included as a recipient an individual from Merrill Lynch, who was then advising the Huntsman board on financial matters in connection with the merger. The individual from Merrill Lynch thereafter forwarded the email to other individuals within Merrill Lynch. Hexion argued that the disclosure of the email to Merrill Lynch constituted a waiver of the attorney-client privilege. The Court found that the underlying e-mail was subject to the attorney-client privilege, and that the presence of the Merrill Lynch representatives on the e-mail did not destroy that privilege. Citing Jedwab, the Court held that the privilege was maintained because the Merrill Lynch executive was also working for Huntsman on the same transaction that was the subject of the e-mail and their advice was being solicited in connection with the legal issues arising out of the merger.

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