The attorney-client privilege is the oldest privilege recognized by Anglo-American jurisprudence, and its origins can be traced to ancient Rome. It is critical to encouraging frank and full communications between clients and their attorneys, thereby promoting the public interest in legal compliance and the proper administration of justice. The attorney-client privilege is, however, an exception to the fundamental principle that the public has a right to every person’s evidence and the fundamental responsibility of every person to give testimony. Thus, although thought to be sacrosanct, the attorney-client privilege is confined, and the courts have struggled to define its limits.

Certain exceptions are now ingrained generally in the law, such as those applying to communications in contemplation of a crime or fraud and communications to a joint attorney. Another, the fiduciary exception, established in the seminal case of Garner v. Wolfinbarger, 430 F.2d 1093. 1103 (5th Cir. 1970), which limits application of the attorney-client privilege “where the corporation is in suit against its stockholders on charges of acting inimically to stockholder interests,” is widely accepted, but has been the subject of controversy as the courts have expanded and applied the exception in an increasing variety of circumstances.

CONTINUE READING for the full analysis of the Wal-Mart Stores v. Indiana Electrical Workers Pension Trust Fund IBEW, 2014 WL 3638848 (Del. Supr. July 23, 2014) decision and how the Garner exception applies to a Section 220 books and records action.