In re lululemon athletica inc. 220 Litigation ( 2015 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
)
IN RE LULULEMON ATHLETICA INC. ) CONSOLIDATED
220 LITIGATION ) C.A. No. 9039-VCP
)
)
MEMORANDUM OPINION
Date Submitted: December 1, 2014
Date Decided: April 30, 2015
Carmella Keener, Esq., Jessica Zelden, Esq., P. Bradford deLeeuw, Esq., ROSENTHAL,
MONHAIT & GODDESS, P.A., Wilmington, Delaware; Blake A. Bennett, Esq.,
COOCH & TAYLOR, P.A., Wilmington, Delaware; Joshua Littlejohn, Esq., Max
Gruetzmacher, Esq., Mt. Pleasant, South Carolina; Gustavo Bruckner, Esq., Ofer Ganot,
Esq., POMERANTZ LLP, New York, New York; Attorneys for Plaintiff Laborers’
District Council Construction Industry Pension Fund and Plaintiff Hallandale Beach
Police Officers and Firefighters’ Personnel Retirement Fund.
John L. Reed, Esq., Scott B. Czerwonka, Esq., DLA PIPER LLP (US), Wilmington,
Delaware; Stellman Keehnel, Esq., Andrew Escobar, Esq., DLA PIPER LLP (US),
Seattle, Washington; Attorneys for Defendant lululemon athletica inc.
PARSONS, Vice Chancellor.
In this books and records action under 8 Del C. § 220, I previously ordered the
defendant corporation to produce books and records relating to the plaintiffs‘
investigation of potential insider trading or Brophy claims against the company‘s founder
and then-chairman of the board of directors, as well as potential claims for
mismanagement against the other directors. The company produced documents pursuant
to that order, but the plaintiffs found the production inadequate and moved to enforce the
Court‘s order. Their motion presents several questions for resolution: (1) whether the
company must search its non-employee directors‘ personal email accounts for documents
responsive to my previous order; (2) whether certain documents properly were designated
as privileged; and (3) even if those documents are privileged, whether the plaintiffs have
shown ―good cause‖ under the circumstances to obtain them anyway.
For the reasons stated in this Memorandum Opinion, I deny in part and grant in
part the plaintiffs‘ motion to enforce. Specifically, I conclude that ordering the company
to search its non-employee directors‘ personal email accounts is not warranted, but I find
that the plaintiffs have demonstrated ―good cause‖ to access certain documents withheld
as privileged.
I. BACKGROUND
A. Parties
Defendant, lululemon athletica, inc. (the ―Company‖ or ―lululemon‖), is a
Delaware corporation with its principal place of business in Vancouver, British
Columbia, Canada. Lululemon is a designer and retailer of athletic apparel and operates
throughout North American and Australia. Its stock is traded on the NASDAQ.
1
Plaintiffs, Hallandale Beach Police Officers and Firefighters‘ Personnel
Retirement Fund (―Hallandale‖) and Laborers‘ District Council Construction Industry
Pension Fund (―LDC‖), are both lululemon stockholders.
B. Facts
On December 12, 2012, Dennis Wilson, lululemon‘s founder and then-Chairman
of the Board of Directors, entered into a trading plan pursuant to Securities and Exchange
Commission (―SEC‖) Rule 10b5-1 to sell up to 5.7 million of his shares of lululemon
common stock over a period of up to eighteen months (the ―Trading Plan‖). Wilson‘s
broker at Merrill Lynch had complete discretion to sell the shares during that period
consistent with the terms of the Trading Plan. Specifically, Merrill Lynch could sell
300,000 shares at market price beginning January 10, 2013. From that point through
June 30, 2014, the broker could sell up to 1 million shares per month at a minimum price
of $81.25 per share.1 Between January 10 and January 14, 2013, the broker sold 300,000
shares at an average price of $70.92. In May and June, 2013, Wilson‘s broker sold one
million shares each month, all at prices above $81.25. Whenever Merrill Lynch sold
shares under the Trading Plan, it sent an email notification to lululemon Controller David
1
Pls.‘ Opening Br. Ex. A [hereinafter, the ―Company Production‖], at lulu000118–
19.
2
Negus and Tina Swinton, among others.2 Swinton was the CFO of Wilson‘s ―Family
Office,‖ which operated as his personal investment company.
Of particular importance are the trades that occurred on June 4 and 7, 2013. On
June 5, Christine Day, lululemon‘s then-CEO, informed Wilson that she planned to
resign. She informed the Board to that effect on Friday, June 7. On that same day,
Wilson‘s broker sold 607,545 shares of Wilson‘s lululemon stock, over 200,000 shares
more than he had sold on any other day during the first six months of the Trading Plan.
By selling such a quantity, Wilson reached his one-million-share-per-month cap only
seven days into June. On June 10, 2013, the Company publicly announced Day‘s
resignation, and the per-share price for lululemon stock dropped roughly 22%. After
June 7, 2013, Wilson‘s broker did not make any additional sales under the Trading Plan,
and it expired at the end of June 2014.
On June 12, 2013, the Wall Street Journal (the ―WSJ‖) emailed the Company
about Wilson‘s June 2013 trades, which appeared incredibly well-timed. The WSJ
sought confirmation of certain facts for a story regarding Wilson‘s trades.3 As relevant to
the pending motion, individuals from lululemon and Wilson‘s Family Office, including
both Wilson‘s personal attorney and lululemon‘s attorney, corresponded by email about a
2
See Company Production at lulu000046–47 (authorizing Merrill Lynch to notify
Swinton and Negus under the Trading Plan); see also Company Production at
lulu000156 (example of the email notification).
3
Suzanne Kapner, Timing of Stock Sales Favors Lululemon Insider, WALL ST. J.,
(Jun. 12, 2013),
http://www.wsj.com/articles/SB10001424127887324049504578541821613302146.
3
coordinated response to the WSJ‘s inquiry (the ―WSJ Email Chain‖). The participants in
the WSJ Email Chain included, among others, Wilson and Swinton.4 Some of the emails
in that chain were authored either by Wilson‘s personal attorney or by lululemon‘s
outside counsel. Wilson‘s Family Office ultimately released a statement regarding the
trades,5 but the Company did not comment on it. In addition, on July 2, 2013, Erin
Nicholas, lululemon‘s corporate secretary and one of its in-house counsel, responded to
an email from lululemon director Jerry Stritzke about whether Wilson‘s trades had
complied with the Trading Plan (the ―Nicholas Email‖).
C. Procedural History
On May 3, 2013, Hallandale commenced its 8 Del. C. § 220 (―Section 220‖)
action against lululemon. On October 25, 2013, LDC filed a separate Section 220 action.
I heard argument on the Company‘s motion to dismiss the Hallandale action on February
5, 2014, and held a trial in the LDC action on February 19, 2014. On April 2, 2014, I
issued an oral ruling regarding both actions (the ―April 2014 Order‖).6 I concluded that
Plaintiffs had a proper purpose under Section 220 to seek books and records regarding
Wilson‘s June 7, 2013 trades because there was a credible basis to infer wrongdoing by
Wilson and lululemon. Specifically, in addition to a possible Brophy claim against
4
Pls.‘ Opening Br. Ex. B [hereinafter, the ―Privilege Log‖].
5
Company Production at lulu000037.
6
See In re lululemon athletica inc. 220 Litig., Consol. C.A. No. 9039-VCP (Del.
Ch. April 2, 2014) (TRANSCRIPT) [hereinafter, the ―April 2014 Order‖].
4
Wilson,7 I concluded that Plaintiffs had demonstrated a credible basis to infer possible
mismanagement by the Company in connection with their oversight as to the
questionable trading.8
Based on those findings, I ordered the Company to produce, among other
documents: (1) the Trading Plan; (2) any emails from Wilson to lululemon‘s compliance
office regarding the Trading Plan; (3) any changes to the Trading Plan; (4) all documents
concerning Wilson‘s June trades; and (5) all documents concerning any inquiry by the
board or any member of the board regarding Wilson‘s trades between June 1 and June 30,
2013.9 On April 18, 2014, lululemon produced 195 pages of documents. The next day, it
produced a privilege log referencing sixteen documents it had withheld under the
7
Kahn v. Kolberg Kravis Roberts & Co., 23 A.3d 831, 838 (Del. 2011) (For a
Brophy claim, ―The plaintiff must show that: 1) the corporate fiduciary possessed
material, nonpublic company information; and 2) the corporate fiduciary used that
information improperly by making trades because she was motivated, in whole or
in part, by the substance of that information‖) (footnotes and internal quotation
marks omitted); Brophy v. Cities Serv. Co., 70 A.2d 5 (Del. Ch. 1949).
8
April 2014 Order 30; see also id. at 29-30 (―Based on the nature of the June 7th
trade and the absence of any evidence of public statements or other indications
that the Company‘s board examined the trade or Wilson‘s conduct, Plaintiffs have
established a credible basis for inferring that the Company‘s board may have
mismanaged this situation, in terms of its monitoring.‖).
9
April 2014 Order 38–42. In the April 2014 Order, I ordered the Company to
produce any documents related to any inquiry by the directors or the board
regarding Wilson‘s trading plan from July 1, 2012 to April 2014. At argument on
the pending motion to enforce, however, I limited any subsequent search by the
Company to any inquiry that occurred between June 1 and June 30, 2013. Arg. Tr.
61.
5
attorney-client privilege. The Nicholas Email and the WSJ Email Chain comprise five of
the documents identified on that log.
On June 11, 2014, I consolidated the Hallandale and LDC actions to facilitate
enforcement of the April 2014 Order, and two days later, Plaintiffs filed this motion to
enforce the April 2014 Order. On July 23, before briefing in connection with this motion
had concluded, the Delaware Supreme Court decided Wal-Mart Stores, Inc. v. Indiana
Electrical Workers Pension Trust Fund IBEW.10 In Wal-Mart II, the Supreme Court held
for the first time that the so-called fiduciary exception to attorney-client privilege based
on the Garner v. Wolfinbarger11 decision applied to Section 220 actions.12 Because
Plaintiffs relied extensively on Wal-Mart II in their August 26, 2014 reply brief, I
accepted as a sur-reply Defendant‘s November 24, 2014 letter addressing the implications
of the Wal-Mart II decision. This Memorandum Opinion represents my ruling on
Plaintiffs‘ motion to enforce.
D. Parties’ Contentions
Plaintiffs assert that the dearth of certain documents in lululemon‘s production
indicates that the Company has not complied with the April 2014 Order. In particular,
Plaintiffs seek: (1) ―all communications authored or received by any Board member
(including e-mails located in non-Company e-mail accounts) in June 2013 concerning
10
95 A.3d 1264 (Del. 2014) [hereinafter ―Walmart II‖].
11
430 F.2d 1093 (5th Cir. 1970).
12
Wal-Mart II, 95 A.3d at 1278. I note that prior Court of Chancery cases had found
that exception applicable in the context of Section 220. See infra note 65.
6
Wilson‘s June 2013 stock sales‖; (2) ―all communications authored or received by any
Board member (including e-mails located in non-Company e-mail accounts) concerning
any inquiry or investigation into Wilson‘s June 2013 trade‖; and (3) information
―concerning the ‗disagreement‘ between Wilson and Day that culminated into [sic] Day‘s
resignation on June 5, 2013.‖13 At argument, Plaintiffs waived their request as to item
(3), but they persisted in seeking to compel production of additional documents under
items (1) and (2), if any exist.14
In that regard, Plaintiffs argue that lululemon must search the personal email
accounts of the Board members who are not Company employees (the ―Non-Employee
Directors‖),15 and produce any documents contained therein that fall within the relevant
categories of the April 2014 Order. Plaintiffs contend that it is immaterial that the email
accounts are not Company accounts, because the directors use them to conduct lululemon
business. Lululemon counters that there is no precedent to support requiring such a
search in the context of a Section 220 action, and that, under the circumstances of this
13
Pls.‘ Opening Br. 8.
14
Arg. Tr. 5.
15
From the record currently before this Court, it is not apparent how many of
lululemon‘s directors are non-employees, or, for that matter, how many directors
lululemon has on its board. For purposes of this Memorandum Opinion, neither of
those facts makes a difference. As discussed in more detail infra, the distinction
between employee directors and non-employee directors is significant only
because of the issue of what emails would have been included in the Company‘s
production, by virtue of the location of the email account, i.e., on the Company‘s
server, or not.
7
case, any documents that might come up in a search of the directors‘ personal emails are
not necessary and essential to the purpose of Plaintiffs‘ demand, making a costly and
time-consuming search unwarranted.
Additionally, Plaintiffs seek production of the Nicolas Email and the WSJ Email
Chain, contending that they were improperly designated as privileged. Plaintiffs dispute
the privilege claim as to the Nicholas Email because they maintain that Nicholas was not
acting as an attorney when she responded to an inquiry about the trading plan. They
similarly contend that the WSJ Email Chain is not privileged because any privilege was
waived by the inclusion of third-parties Wilson and Swinton on the emails. In the
alternative, Plaintiffs assert that, under Garner and Wal-Mart II, the five withheld
documents are not privileged as to them.
As to the privilege issues, lululemon responds that the Nicholas Email was
properly withheld because Nicholas, as one of lululemon‘s in-house counsel, was giving
legal advice. With respect to the WSJ Email Chain, lululemon argues that it did not
waive privilege through disclosure because it shared a common interest with Wilson and
Wilson‘s representatives in connection with responding to the WSJ inquiry. Finally,
lululemon contends that Plaintiffs waived any argument regarding the Garner exception
because they failed to raise the argument in their opening brief. Furthermore, even if
Garner does apply, lululemon asserts that Plaintiffs have not satisfied their burden of
showing ―good cause‖ as required under that line of cases.
8
II. THE NON-EMPLOYEE DIRECTORS’ EMAILS
As relevant here, in the April 2014 Order, I ruled that Plaintiffs‘ request for ―All
documents concerning any investigation or inquiry by any member of Lululemon‘s board
of directors . . . or any Company employee, or any representative on behalf of any Board
member of the Company, concerning Mr. Wilson‘s trades in Lululemon stock during the
Relevant Time Period‖ was necessary and essential to Plaintiffs‘ proper purpose of
investigating whether the Board adequately monitored insider trading activity. 16 I also
held that Plaintiffs‘ request for ―All documents concerning Mr. Wilson‘s trades in
Lululemon stock during the Relevant Time Period‖ was necessary and essential, but
limited the scope of the Company‘s required production to documents from the month of
June 2013.17
As to the first category of documents, Plaintiffs complain about the ―dearth‖ of
documents produced by the Company, asserting that they ―expected to see some e-mail
correspondence . . . to or from Wilson and/or e-mails among Board members‖ regarding
Wilson‘s trades, but none appeared in the Company‘s 195 page production.18 Similarly,
Plaintiffs express dismay that the Company produced ―only a single document related to
any investigation or inquiry conducted by the Company, its Board, or anyone else
16
April 2014 Order 41-42.
17
Id. at 40-41.
18
Pls.‘ Opening Br. 9-10.
9
regarding Wilson‘s trades.‖19 Plaintiffs infer that there must be ―gaps‖ in the Company‘s
production, and ask the Court to order ―Lululemon to search for the following: all
communications authored or received by any Board member (including e-mails located in
non-Company e-mail accounts) concerning any inquiry or investigation into Wilson‘s
June 2013 trades.‖20
Lululemon‘s Non-Employee Directors apparently do not have company email
accounts and instead conduct any Company-related business through email accounts of
their own.21 The Company searched its servers for responsive documents in connection
with their production under the April 2014 Order, but it did not inquire about, or
otherwise search, the directors‘ personal email accounts.22 Thus, the main documents
19
Id. at 12. That lone document apparently is an email sent to lululemon‘s regional
managers the same day that the article questioning Wilson‘s trades appeared in the
WSJ. In it, Jessica Price, an employee in ―ops solutions,‖ instructed the email
recipients not to respond to media requests in that regard, but to forward them to a
specified email address. Price also briefly explained the Company‘s position,
stating that, ―In short, Chip‘s stock sales under his 10b5-1 plan are in alignment
with the SEC guidelines for these types of stock sales.‖ Company Production at
lulu000141.
20
Pls.‘s Opening Br. 13.
21
Def.‘s Answering Br. 21; Arg. Tr. 43–44.
22
Presumably, when producing emails in response to discovery requests or a Section
220 demand, a company first images its computer servers, if necessary, and then
searches that copy for responsive emails. See, e.g., Cenveo Corp. v. Slater, 2007
WL 442387, at *2–3 (E.D. Pa. Jan. 31, 2007) (ordering the plaintiff to select a
computer forensic expert to image the defendants‘ computers without substantially
interrupting the defendants‘ business or removing the computers from the
premises); see also In re Info. Mgmt. Servs., Inc. Deriv. Litig., 81 A.3d 278, 286–
87 (Del. Ch. 2013). The servers, however, capture only those emails sent through
10
Plaintiffs seek in this regard are email communications between or among the Non-
Employee Directors, if any exist, because those would not have been captured by the
Company‘s earlier production effort.
A. Legal Standard
In the context of a Section 220 action, stockholders with a proper purpose ―should
be given access to all of the documents in the corporation‘s possession, custody or
control, that are necessary to satisfy that proper purpose.‖23 The rationale for allowing
inspection of corporate books and records is to provide the stockholder with ―enough
information to effectively address the problem‖ through derivative litigation or other
means.24 Nevertheless, even if a stockholder‘s purpose is proper, Section 220 ―does not
open the door to the wide ranging discovery that would be available in support of
litigation,‖25 because ―the stockholder‘s inspection right is a ‗qualified‘ one.‖26
Determining the appropriate scope of inspection under Section 220 is ―fact specific and
them—that is, emails sent over the company‘s network using company email
accounts. Correspondence between the Non-Employee Directors that were not also
sent or copied to an employee director or officer, if any existed, would not appear
on that network, and thus would not be retrieved by any search of the Company‘s
servers.
23
Saito v. McKesson HBOC, Inc., 806 A.2d 113, 115 (Del. 2002).
24
Id.
25
Id. at 114.
26
United Techs. Corp. v. Treppel, 109 A.3d 553, 559 (Del. 2014).
11
will necessarily depend on the context.‖27 This Court ―must circumscribe orders granting
inspection ‗with rifled precision,‘‖28 and the relevant inquiry in confining the scope of
such an order is ―[w]hether or not a particular document is essential to a given inspection
purpose.‖29
B. The Scope of the April 2014 Order
For the reasons that I will discuss shortly, I conclude that in the circumstances of
this case, an order requiring the Company to search the independent directors‘ non-
Company or personal email accounts is unwarranted, because any such emails are not
―necessary and essential,‖ and Plaintiffs‘ request goes beyond the scope of the April 2014
Order. As a threshold matter, however, I note that even if Plaintiffs could establish that
those documents were necessary for their proper purposes, it is not clear that the Court
could require that Plaintiffs receive access to those documents under Section 220. The
statute recognizes a stockholder‘s right to inspect ―[t]he corporation‘s stock ledger, a list
of its stockholders, and its other books and records.‖30 That right extends, for example,
to the books and records of a corporation‘s subsidiary, but only to the extent the
corporation has ―actual custody and control of such records,‖ or ―could obtain such
27
Espinoza v. Hewlett-Packard Co., 32 A.3d 365, 372 (Del. 2011) [hereinafter
―Espinoza II‖]; see also United Techs. Corp., 109 A.3d at 558.
28
Espinoza II, 32 A.3d at 372 (quoting Sec. First Corp. v. U.S. Die Casting & Dev.
Co., 687 A.2d 563, 570 (Del. 1997)).
29
Id. at 372 (emphasis added).
30
8 Del. C. § 220(b)(1).
12
records through the exercise of control over‖ the subsidiary.31 The statute is silent as to
the books and records of the corporation‘s directors, and Delaware courts have not read
Section 220 so broadly as to include, as a general matter, books and records in a
director‘s personal possession.32 If anything, the prevailing rule appears to cut against
the inclusion of such documents.33 Plaintiffs therefore overstate the extent to which Wal-
Mart34 and Wal-Mart II aid their cause on this point.35 If, following those cases, I were to
31
8 Del. C. § 220(b)(2); see also Weinstein Enters., Inc. v. Orloff, 870 A.2d 499,
508-11 (Del. 2005).
32
See Clark Enters., Inc. v. Hollywell Corp., 1982 WL 17855, at *2 (Del. Ch. Apr.
13, 1982) (granting plaintiff stockholder inspection of Hollywell‘s books and
records under Section 220, but noting that ―[t]he personal records and documents
of [Hollywell‘s director and 80% stockholder], copies of which are not found
among Hollywell‘s records and files, are not subject to inspection as a part of this
proceeding. If discovery is sought of [those] personal records, it must be obtained
through other means.‖); see also Dobler v. Montgomery Cellular Hldg. Co., 2001
WL 1334182, at *10 (Del. Ch. Oct. 19, 2001).
33
See 1 EDWARD P. WELCH, ET AL., FOLK ON THE DELAWARE GENERAL
CORPORATION LAW § 220.04[D], at 7-221 (6th ed. 2015).
34
Ind. Electr. Workers Pension Trust Fund IBEW v. Wal-Mart Stores, Inc., 7779-CS,
at 97-98 (Del. Ch. May 20, 2013) (TRANSCRIPT) [hereinafter ―Wal-Mart I‖].
35
In Wal-Mart I, this Court ordered that certain officers and directors who were
designated as custodians in the Section 220 discovery had to search their personal
devices and computers for responsive documents. Id.; see also Ind. Electr.
Workers Pension Trust Fund IBEW v. Wal-Mart Stores, Inc., 7779-CS (Del. Ch.
Oct. 15, 2013) (ORDER) (―Defendant shall: . . . Collect and review data from the
personal computers and devices of all Custodians.‖). Then-Chancellor Strine‘s
ruling in Wal-Mart I did not announce a per se rule that directors‘ personal emails
always are subject to discovery under Section 220; rather, it left open the
possibility that, depending on Wal-Mart‘s policy for use of company information
and documents on non-company devices, information residing in the directors‘
personal computers may or may not have to be produced. Wal-Mart I, at 97-98.
Furthermore, while the Delaware Supreme Court affirmed then-Chancellor
13
conclude that personal documents of the Non-Employee Directors were within the scope
of Plaintiffs‘ Section 220 inspection right, I would have to do so based on a careful
review of the circumstances of the case, and in particular the facts relating to whether the
sought-after documents are within lululemon‘s ―possession, custody, or control.‖36 But,
the factual record as to that issue contains no evidence on which this Court could rely in
ordering the type of discovery Plaintiffs seek. I decline, in light of the incomplete record
before me, to address this issue further, except to note that I reject Plaintiffs‘ suggestion
that Delaware law requires me to order the search that they seek by this motion.37
The issue of whether the Non-Employee Directors‘ personal emails are within the
―control‖ of the Company for purposes of Section 220 ultimately is immaterial to my
decision, however, because I deny that aspect of Plaintiffs‘ motion on two other grounds.
First, in the portions of the April 2014 Order that Plaintiffs invoke as supporting their
argument in this regard, I explicitly ordered the Company to produce documents
responsive to the specified requests to the extent they fell within a prescribed time
Strine‘s judgment en toto, the specific issue of whether Section 220 reaches
directors‘ personal documents was not briefed or argued by the parties on appeal.
36
Saito, 806 A.2d at 115; see also Weinstein Enters., Inc., 870 A.2d at 507-12
(discussing ―control‖ for purposes of Section 220); id. at 510 (―[T]he inquiry in
each specific case is not whether the parent has the power to control the affairs of
the subsidiary, but whether by exercising actual control, the parent corporation
alone can cause the subsidiary to produce its documents.‖); accord Wal-Mart I, at
97-98.
37
Pls.‘ Reply Br. 1-4.
14
period.38 I observed that ―I would not be surprised that there are no documents in this
category,‖ and did not suggest that Plaintiffs would be entitled to another, broader search
for documents if that turned out to be true.39
By requesting production of ―all communications authored or received by any
Board member (including e-mails located in non-Company e-mail accounts) concerning
any inquiry or investigation into Wilson‘s June 2013 trades,‖ Plaintiffs ask the Court to
go considerably beyond the scope of relief granted in the April 2014 Order. In that
regard I note that the Section 220 demands that I considered in issuing the April 2014
Order required that the Company produce ―All documents concerning Mr. Wilson‘s
trades . . .‖ and ―All documents concerning any investigation or inquiry‖ by any Board
member into Wilson‘s trading.40 The term ―documents‖ was defined vaguely, at least
with respect to the source of the documents sought.41 Plaintiffs did not address squarely
38
April 2014 Order 41 (―The Company, however, need only produce documents
from June, 2013 . . .‖); id. at 42 (―I . . . order it to be produced by the Company.‖)
(emphases added).
39
Id. at 42. The Company in fact did produce at least a few documents in this
category, including, for example, an email from Nicholas, in-house counsel for
lululemon, to Director Michael Casey. Company Production at lulu000037. That
email, copying Chief Compliance Officer John Currie, provided Casey with
information about Wilson‘s June 2013 trades, the Trading Plan, and the impending
WSJ article. Id.
40
Pls.‘ Opening Br. Ex. F. (―LDC‘s Demand Letter‖); see also April 2014 Order 40-
42.
41
LDC‘s Demand Letter 1 n.1 (―The term ‗documents‘ as used herein is to be
construed as broadly as possible under the Rules of the Delaware Court of
Chancery, and includes, without limitation, any and all correspondence concerning
15
the issue of ordering the Company to search the Non-Employee Directors‘ non-Company
email accounts, if in fact they contemplated such a search at that time. Nor was that issue
squarely raised in Plaintiffs‘ pre-trial papers,42 or during the trial and related arguments in
February 2014.43 Thus, when the Court granted Plaintiffs‘ demands in the April 2014
Order, it did so only with respect to the issue of what documents, if any, the Company
must produce. Plaintiffs now ask the Court to expand the scope of the April 2014 Order
to include documents, if any exist, that the Non-Employee Directors must produce. In the
circumstances of this case, I find such a retroactive expansion to be unwarranted.
Because it was Plaintiffs‘ burden to establish by a preponderance of the evidence that
each book or record sought was essential to their proper purpose,44 I decline at this late
stage to resolve any remaining ambiguity in Plaintiffs‘ favor.
Second, and more importantly, even if Plaintiffs properly had framed the issue of
whether the Non-Employee Directors‘ personal emails should be within the scope of
relief ordered under Section 220, Plaintiffs likely would have failed to establish that those
communications were ―essential‖ to their proper purposes of investigating potential
Brophy claims against Wilson and potential mismanagement claims against the Board. In
finding the latter purpose ―proper‖ under Section 220, I stated that ―it is legitimate for
the demanded categories, whether sent via mail, facsimile, electronic
communication, or otherwise.‖).
42
Pls.‘ Opening Pre-Trial Br. 13-16.
43
Trial Tr. 22-23.
44
Espinoza II, 32 A.3d at 374; see also id. at 374 n.19.
16
Plaintiffs to want to understand what, if [any], steps the company‘s board took to
determine whether the sales were made in accordance [with] the Trading Plan or
otherwise consistent with the Company‘s policies regarding insider trading.‖45
―Documents are ‗necessary and essential‘ pursuant to a Section 220 demand if
they address the ‗crux of the shareholder‘s purpose‘ and if that information ‗is
unavailable from another source.‘‖46 As noted above, a copy of the Trading Plan was in
the possession of the Company, and each time stock was sold pursuant to the Plan, a
notification was sent to lululemon and to Wilson‘s Family Office. I deem the ―crux‖ of
Plaintiffs‘ proper purpose, therefore, to be whether any Director contacted someone at the
Company to investigate possible insider trading by Wilson. To the extent a director
communicated by email or otherwise with lululemon employees, those communications
would have been produced by the Company. Indeed, as noted above, at least some such
communications were produced.
Apparently finding those documents insufficient, Plaintiffs seek by this motion to
obtain email communications solely between or among Non-Employee Directors,
occurring on non-Company accounts. While such discussions among members of the
Board might be interesting to Plaintiffs, and may be helpful in a later action against those
Board members, they are not ―necessary‖ for Plaintiffs‘ proper purpose here. It is not
enough for Plaintiffs to voice their dissatisfaction with the responsive documents located
45
April 2014 Order 29.
46
Wal-Mart II, 95 A.3d at 1271 (quoting Espinoza II, 32 A.3d at 371-72).
17
and produced by the Company in this regard. Rather, their burden under Section 220 is
to show that the intra-Board communications occurring exclusively on non-Company
email accounts would be necessary and essential to their investigation of potential claims
against Wilson or other Board members; that is, Plaintiffs must show that they cannot
accomplish their investigatory purpose without access to those emails.
Even setting aside that Plaintiffs failed to create a record sufficient to satisfy their
burden as to that issue at trial, the results of the Company‘s production demonstrates the
opposite of what Plaintiffs needed to show: that the Non-Employee Directors‘ personal
emails are not necessary and essential to accomplish their proper purpose. The books and
records related to the crux of Plaintiffs‘ proper purpose consisted of the Trading Plan, and
any inquiries by members of the Board relating to an investigation of possible insider
trading. On the facts of this case, an email exchange solely between Non-Employee
Directors would not constitute an ―investigation,‖ if that communication never
progressed to the further step, for example, of contacting someone at the Company, such
as an employee responsible for compliance or legal affairs at the Company. But, any
director communication rising to the level of an ―investigation‖ in that sense presumably
would have found its way to the inbox of a Company email account and onto its server.
In that case, the document should have been located by lululemon or its counsel and
either produced or included on a privilege log. Plaintiffs already obtained documents of
that nature from the Company, so I consider it neither necessary nor essential to broaden
the scope of relief granted by re-writing the April 2014 Order to include a substantially
new and different search for books and records.
18
III. THE WSJ EMAIL AND THE NICHOLAS EMAIL
Plaintiffs contend that they are entitled to review the WSJ Email Chain and
Nicholas Email because either: (1) they were improperly designated as privileged; or (2)
under Garner, they should have access to those documents regardless of privilege. For
the reasons that follow, I conclude that the WSJ Email Chain and the Nicholas Email
were properly designated as privileged, and that privilege was not waived as to either.
After considering the relevant factors, however, I conclude that Plaintiffs have shown
good cause to access those documents under the fiduciary exception as articulated in
Garner and Wal-Mart.
A. Whether the Nicholas Email and the WSJ Email Chain Were Properly
Designated as Privileged
1. Legal Standard
Before analyzing whether Plaintiffs may review the privileged documents under
Garner, I must decide whether the WSJ Email Chain and the Nicholas Email were
properly designated as privileged.47 Delaware Rule of Evidence 502(b), which governs
the attorney-client privilege, provides:
A client has a privilege to refuse to disclose and to prevent
any other person from disclosing confidential
communications made for the purpose of facilitating the
rendition of professional legal services to the client (1)
between the client or the client‘s representative and the
client‘s lawyer or the lawyer‘s representative, (2) between the
lawyer and the lawyer‘s representative, (3) by the client or the
47
See Khanna v. Covad Commc’ns Gp., Inc., 2004 WL 187274, at *7 (Del. Ch. Jan.
23, 2004) (making privilege determination before deciding whether the plaintiffs
had a proper purpose under Section 220 to review the document).
19
client‘s representative or the client‘s lawyer or a
representative of the lawyer to a lawyer or a representative of
a lawyer representing another in a matter of common interest,
(4) between representatives of the client or between the client
and a representative of the client, or (5) among lawyers and
their representatives representing the same client. 48
2. The Nicholas Email is protected by attorney-client privilege.
Plaintiffs argue that the Nicholas Email is not privileged because Nicholas, who is
both the company‘s in-house counsel and its corporate secretary, was not acting as an
attorney when she sent it. In her email, Nicholas apparently answered an inquiry from
Director Stritzke regarding whether Wilson‘s trades complied with Wilson‘s Trading
Plan. Generally, when an attorney has more than a legal role with the company, her
communications will be privileged only if the legal aspects of the communication
predominate.49
Based on the description in the privilege log,50 I conclude that the Nicholas Email
is privileged. Stritzke emailed Nicholas asking her to review a legal document (the
Trading Plan) and tell him whether certain acts complied with it. No non-attorney
employees of the Company were involved in the email chain, nor is there any reason
based on the log‘s description to think that Stritzke or Nicholas were discussing anything
48
D.R.E. 502(b).
49
MPEG LA, L.L.C. v. Dell Global B.V., 2013 WL 6628782, at *2 (Del. Ch. Dec. 9,
2013).
50
Privilege Log (―Email reflecting legal advice regarding inquiry relating to Rule
10b5-1 plans and trade made by Mr. Wilson‘s broker pursuant to his Rule 10b5-1
plan.‖).
20
other than predominately legal issues. Such a communication is protected by attorney-
client privilege.51
3. The Company did not waive privilege as to the WSJ Email Chain.
Plaintiffs also argue that the WSJ Email Chain improperly was withheld as
privileged. The participants in the WSJ Email Chain included, among others, Wilson and
Tina Swinton, the CFO of the Wilson Family Office. At argument, lululemon
represented that the communications were related to ensuring that the coordinated
statement to the WSJ was ―legally accurate.‖52 Plaintiffs do not dispute that the WSJ
Email Chain contains legal advice, which generally is protected by attorney-client
privilege. Instead, they contend that lululemon waived the privilege when it included
Wilson and Swinton on the WSJ Email Chain. Lululemon responds that privilege was
not waived because Wilson and lululemon had a common legal interest in responding to
the WSJ inquiry. Lululemon further argues that because it and Wilson, the Chairman of
its Board, had a common interest in these communications, sharing privileged materials
with Wilson‘s agent, Swinton, also did not waive privilege.
a. Wilson and lululemon had a common interest.
As a general rule, disclosing privileged communications to a third party will waive
privilege. One exception to that rule involves situations where a lawyer represents more
51
Plaintiffs urge me to review the Nicholas Email in camera. In camera review,
however, is unnecessary here because the nature of the Nicholas Email and the
related privilege log description of it do not give me a reason to doubt the
privileged nature of that communication.
52
Arg. Tr. 56.
21
than one client, or two lawyers represent different clients in a ―matter of common
interest.‖53 Delaware Rule of Evidence 502 extends the privilege to confidential
communications made for the purpose of ―facilitating the rendition of professional legal
services to the client . . . by the client or the client‘s representative or the client‘s lawyer
or a representative of the lawyer to a lawyer or a representative of a lawyer representing
another in a matter of common interest.‖54 The so-called common interest doctrine,
however, does not require that the relevant advice be relayed through attorneys; instead,
privilege will survive when persons with a common interest share the privileged
information.55 For the parties to have a ―common interest,‖ the ―interest must involve
primarily legal issues, rather than relate to a common interest in a commercial venture.‖56
In addition, the disclosure must have been made ―to facilitate the rendition of legal
services.‖57 The party claiming privilege has the burden of demonstrating a common
legal interest.58
53
D.R.E. 510(a); see also In re Quest Software Inc. S’holders Litig., 2013 WL
3356034, at *4 (Del. Ch. July 3, 2013).
54
D.R.E. 502(b).
55
Rembrandt Techs., L.P. v. Harris Corp., 2009 WL 402332, at *8 ( Del. Ch. Feb.
12, 2009) (―The Court finds that separately represented clients sharing a common
legal interest may, at least in certain situations and under close supervision of
counsel, communicate directly with one another regarding that shared interest.‖).
56
In re Quest Software Inc., 2013 WL 3356034, at *4.
57
Id. (internal quotation marks omitted).
58
Id. (footnote omitted).
22
In arguing against application of the common interest doctrine, Plaintiffs rely
primarily on Titan Investment Fund II, LP v. Freedom Mortgage Corp.59 and argue that
lululemon and Wilson did not share a common legal strategy.60 The Titan decision
involved two parties negotiating at arm‘s length over the terms of a potential agreement
to provide joint financing to a third party. During the negotiations, privileged
communications were shared between the two parties. When the third party sought
discovery of the shared communications, the court examined whether the
communications were saved from waiver because of the common-interest doctrine. The
court concluded that the two parties did not have a common interest because: (1) their
interests were adverse for purposes of negotiating a commercial transaction; (2) they
failed to assert any ―clear legal interest that is inherently related to [the] commercial
objective‖;61 and (3) nothing in the record suggested they anticipated becoming parties to
litigation at the time they were sharing legal advice.
In this case, lululemon and Wilson were not adversaries negotiating an arm‘s-
length transaction. Rather, they were attempting to coordinate a statement after the Wall
Street Journal raised questions about the propriety of Wilson‘s trades. Faced with
questions of potential wrongdoing, lululemon and Wilson shared privileged
59
2011 WL 532011 (Del. Super. Feb. 2, 2011).
60
Pls.‘ Reply Br. 12 (quoting Titan, 2011 WL 532011, at *5).
61
Titan, 2011 WL 532011, at *5 (―In other words, [any shared interest] was
designed to further a commercial transaction and did not further a common legal
strategy.‖).
23
communications for the purpose of furthering the common legal strategy of responding to
the inquiry within the parameters of the securities laws and in the reasonable anticipation
that litigation might ensue in which the content of their responses might be subject to
scrutiny. Thus, to the extent their objectives overlapped, it was due primarily to their
common legal, as opposed to commercial, interest. I conclude, therefore, that lululemon
has satisfied its burden of showing a common interest sufficient to support its claim of
privilege as to the WSJ Email Chain.
b. The Company did not waive privilege by including Swinton on the WSJ
Email Chain.
Because Wilson and lululemon had a common legal interest, any disclosure of the
communication to Swinton would not be a waiver of privilege because Swinton was
Wilson‘s representative. By its terms, Delaware Rule of Evidence Rule 502(b) extends
the protections of attorney-client privilege to confidential communications made for the
purpose of facilitating the rendition of professional legal services to the client that are
sent to or from the client‘s representative. Rather than defining the term ―client‘s
representative,‖ the drafters of the Delaware Rules of Evidence instead elected to let the
case law develop its definition.62 Courts have held that a ―privileged communication
should not lose its protection if an executive relays legal advice to another who shares
responsibility for the subject matter underlying the consultation.‖63 Here, under the
62
D.R.E. 502 cmts. (―U.R.E. 502(a)(4) was not adopted in Delaware. It was believed
that a definition of a representative of a client should be left to case law.‖).
63
Rembrandt, 2009 WL 402332, at *8 (internal quotations omitted).
24
Trading Plan, Swinton received notifications from Merrill Lynch every time there was a
trade.64 Moreover, even though Merrill Lynch apparently had sole discretion to sell
Wilson‘s lululemon stock under the Plan, Swinton, as one of the agents in charge of
Wilson‘s Family Office, had responsibility over matters relating to Wilson‘s trading
activity generally. In that respect, the subject matter of the WSJ Email Chain, Wilson‘s
Trading Plan and whether the sales complied with it, generally falls within Swinton‘s
area of responsibility. As Wilson‘s agent for the Trading Plan, Swinton received
privileged advice regarding the Plan and the particular trades in question that appears to
have been directed toward crafting a coordinated response to the Wall Street Journal
inquiry. Thus, I conclude that inclusion of Swinton on the WSJ Email Chain did not
waive privilege as to that document.
B. Whether the Privileged Documents Must Be Produced Under Garner
Although both the Nicholas Email and the WSJ Email Chain are privileged,
Plaintiffs still may be able to compel production of those documents under the fiduciary
exception to privilege as articulated in cases like Garner and Wal-Mart II.65
64
See Company Production at lulu 000046 (authorizing Merrill Lynch to notify
Swinton under the Trading Plan).
65
Plaintiffs failed to argue in their opening brief that they were entitled to access the
Nicholas Email and the WSJ Email Chain, even if they were privileged, under the
Garner test. Instead, after the Supreme Court in Wal-Mart II adopted Garner for
Section 220 actions, Plaintiffs raised the issue for the first time in their reply brief.
As a general rule, the failure to raise an argument in an opening brief constitutes a
waiver of that argument. E.g., Lewis v. AimCo Props., L.P., 2015 WL 557995, at
*2 n.3 (Del. Ch. Feb. 10, 2015). As Defendants correctly point out, there were
previous cases from the Court of Chancery that applied Garner to Section 220
25
1. Legal Standard
In Wal-Mart II, the Delaware Supreme Court for the first time applied the Garner
exception in a Section 220 action. Garner is a decision from the United States Court of
Appeals for the Fifth Circuit that elucidated the ―good cause‖ standard for determining
when a stockholder should have access to corporate communications protected by
attorney-client privilege under the fiduciary exception.66 Underlying the fiduciary
exception is the importance of ―balanc[ing] the legitimate assertion of the attorney-client
privilege by corporate fiduciaries in furtherance of full and frank communications with
counsel on the one hand, with the right of a [stockholder] to discover what advice was
given . . . when a breach of duty by those same fiduciaries is alleged.‖67 Garner itself
enumerated a number of factors that illustrate ―good cause‖ to set aside privilege. The
Supreme Court in Wal-Mart II adopted and applied that analysis, identifying the
following as relevant factors:68
actions, including Grimes v. DSC Communications Corp., 724 A.2d 561 (Del. Ch.
1998), which the Supreme Court in Wal-Mart II cited with approval.
Nevertheless, because the Supreme Court adopted Garner for the first time before
Plaintiffs filed their reply brief and lululemon had an opportunity to respond to the
new argument at length by letter, I deem it appropriate to consider the Garner
argument here.
66
See In re Fuqua Indus., Inc., 2002 WL 991666, at *3 (quoting Garner v.
Wolfinbarger, 430 F.2d 1093, 1104 (5th Cir. 1970)).
67
In re Fuqua Indus., Inc., 2002 WL 991666, at *3.
68
See Wal-Mart II, 95 A.3d at 1278–80. In earlier cases, this Court had suggested
that only a subset of Garner‘s nine factors were relevant in the Section 220
context. See Espinoza v. Hewlett-Packard Co., C.A. No. 6000-VCP, at 19 (Del.
Ch. Mar. 25, 2011) (TRANSCRIPT) [hereinafter ―Espinoza I‖], aff’d on other
26
[1] the number of shareholders and the percentage of stock
they represent; [2] the bona fides of the shareholders; [3] the
nature of the shareholders‘ claim and whether it is obviously
colorable; [4] the apparent necessity or desirability of the
shareholders having the information and the availability of it
from other sources; [5] whether, if the shareholders‘ claim is
of wrongful action by the corporation, it is of action criminal,
or illegal but not criminal, or of doubtful legality; [6] whether
the communication is of advice concerning the litigation
itself; [7] the extent to which the communication is identified
versus the extent to which the shareholders are blindly
fishing; and [8] the risk of revelation of trade secrets or other
information in whose confidentiality the corporation has an
interest for independent reasons.69
For purposes of applying the Wal-Mart and Garner analysis to this case, lululemon has
conceded that Plaintiffs have a large enough stake in the Company and are not ―blindly
fishing.‖70 In addition, lululemon does not argue that the privileged documents are trade
secrets or that Plaintiffs lack a proper purpose. Thus, I focus on the extent to which
Plaintiffs have shown that any of the remaining elements from the quoted excerpt—i.e.,
numbers (3) through (6)—apply here. In conducting that analysis, I note that the plaintiff
grounds, Espinoza II, 32 A.3d 365 (Del. 2011); Grimes, 724 A.2d at 568 (citing
Sealy Mattress Co. of N.J. v. Sealy, Inc., 1987 WL 12500, at *4 (Del. Ch. June 19,
1987)).
69
Wal-Mart II, 95 A.3d at 1276 n.32 (citing Garner, 430 F.2d at 1104).
70
Def.‘s Sur-reply Ltr. 7 n.4.
27
stockholder has the burden of showing ―good cause,‖71 and that the fiduciary exception
―is narrow, exacting, and intended to be very difficult to satisfy.‖72
2. The Garner factors suggest Plaintiffs are entitled to the Nicholas Email and
the WSJ Email Chain
Here, Plaintiffs argue that, even if the WSJ Email Chain and the Nicholas Email
are privileged, they are entitled to access those documents under the fiduciary exception
as recognized in Wal-Mart II and Garner. Based on the following analysis, I agree.
a. Are Plaintiffs’ claims “obviously colorable”?
In Wal-Mart II, the Supreme Court affirmed then-Chancellor Strine‘s order to
produce books and records related to the Wal-Mart board‘s investigation into alleged
bribery of Mexican officials by one of Wal-Mart‘s subsidiaries. In so doing, the Supreme
Court concluded that an ―obviously colorable‖ bribery allegation could support, in part, a
finding of ―good cause‖ under Garner, even though the Section 220 production related to
the subsequent investigation, rather than the alleged bribery itself.73 In this case, I
construe the ―obviously colorable‖ aspect of the analysis as requiring Plaintiffs to show
either that the underlying Brophy claim against Wilson is obviously colorable, or that the
mismanagement claim—relating to the Board‘s subsequent investigation, or lack thereof,
into possible insider trading—is obviously colorable.
71
E.g., Khanna v. Covad Commc’ns Gp., Inc., 2004 WL 187274, at *7 (Del. Ch. Jan.
23, 2004).
72
Wal-Mart II, 95 A.3d at 1278.
73
See Wal-Mart II, 95 A.3d at 1279.
28
Under Section 220, the Court looks to whether the stockholder has a proper
purpose; that is, when investigating corporate wrongdoing, whether there is a credible
basis to infer that wrongdoing may have occurred.74 While not an inconsequential
standard, a ―credible basis‖ is ―the lowest possible burden of proof.‖75 The facts relating
to Wilson‘s trading support an obviously colorable Brophy claim, at least at this
procedural stage. As I noted in connection with the April 2014 Order: (1) Wilson was
one of the few people who knew that lululemon‘s CEO was going to resign; (2) the
magnitude and the timing of Wilson‘s June 7, 2013 trades were highly suspicious; and (3)
Wilson hit his one-million-share-per-month cap only seven days into June.76 Plaintiffs‘
mismanagement claim similarly was obviously colorable in the sense that they had
reasonable suspicion about the trades, and were justified in seeking books and records
relating to what, if anything, the lululemon directors did to ensure that those trades were
74
Seinfeld v. Verizon Commc’ns, Inc., 909 A.2d 117, 122-23 (Del. 2006).
75
Id. at 123. Plaintiffs initially contended that showing a credible basis was
sufficient for Garner‘s ―obviously colorable‖ element. Pls.‘ Reply Br. 6 (―In light
of the fact that in its [April 2014] Order this Court determined that Plaintiffs have
stated a proper purpose and that the categories of documents sought in the demand
(and limited slightly by the Court) are ‗necessary and essential‘ to that purpose,
there can be little doubt that Plaintiffs have stated a colorable claim.‖). At the
Argument, however, they conceded that ―credible basis‖ and ―obviously
colorable‖ likely were two different standards. Arg. Tr. 20–23. I need not
determine the congruence or difference between those standards, however,
because I find Plaintiffs‘ claims to be ―obviously colorable.‖
76
Arg. Tr. 21–23.
29
lawful and in accordance with Company policy. Thus, Plaintiffs have alleged obviously
colorable claims for Garner purposes.
b. Are the communications necessary and unavailable from other sources?
As previously discussed, courts in a Section 220 action order the production only
of books and records that are necessary and essential to the stockholder‘s proper purpose.
The Supreme Court articulated this aspect of the Garner inquiry as whether ―[the
documents] address the ‗crux of the shareholder‘s purpose‘ and if that information ‗is
unavailable from another source.‘‖77 In determining whether the fiduciary exception to
privilege applies, courts look to ―the apparent necessity or desirability of the shareholders
having the information and the availability of it from other sources.‖78 I consider the
necessary and essential prong for Section 220 to be similar, if not identical, to this aspect
of the Garner analysis.
Under Garner, courts have found that privileged documents are not necessary and
essential if the stockholder has the underlying information.79 For example, in Saito v.
McKesson, the company announced shortly after a merger that it had to make certain
77
Wal-Mart II, 95 A.3d at 1271 (quoting Espinoza II, 32 A.3d at 371–72).
78
Garner, 430 F.2d at 1104.
79
Espinoza I, at 25 (finding that the stockholder had failed to show that the
information from the investigative report detailing the CEO‘s sexual harassment
was unavailable from another source when he already had the documents and
information underlying the report); Saito v. McKesson HBOC, Inc., 2002 WL
31657622, at *13 (Del. Ch. Oct. 25, 2002) (finding plaintiff had failed to
demonstrate the documents were necessary when he had the information
underlying the legal analysis).
30
accounting restatements as a result of irregularities discovered in the target‘s books.80
The stockholder sought, among other things, books and records related to legal advice
given to the company‘s board pre- and post-merger. The Court first found that, under
Garner, the stockholder was entitled to pre-merger legal advice to determine the
information that the board had at the time it was considering the merger. 81 The Court
denied, however, the plaintiff‘s requests for post-merger legal advice because the
stockholder had the information underlying that advice.82
With those principles in mind, I first consider the Nicholas Email. In this regard,
Plaintiffs sought documents related to their investigation of possible Brophy claims
against Wilson and possible claims of mismanagement against the Board regarding their
inquiry into the propriety of Wilson‘s trades. The Nicholas Email was identified on the
privilege log as a responsive document, likely because it relates to an inquiry from a
director regarding Wilson‘s trades. The Company contends, however, that because it
already has produced the Trading Plan, as well as numerous related documents and
communications, production of the Nicholas Email is unnecessary. In addition, counsel
80
Saito, 2002 WL 31657622, at *1–2.
81
Id. at *13 (―Plaintiff‘s purpose, however, is to determine what the board knew
when approving the merger. The legal advice given to the board in conjunction
with the merger is relevant and necessary in determining what information the
board relied upon.‖).
82
Id. at *14 (―Plaintiff has obtained the necessary underlying information through
documents previously provided to him by defendant during discovery. Plaintiff
does not have a right to defendant‘s legal analysis of that same information.‖).
31
for the Company has stated that Plaintiffs have all of the information underlying the
Nicholas Email.83
The content of Director Stritzke‘s communication to the individuals at the
Company who would be in charge of compliance and other legal issues, however, goes
directly to the crux of Plaintiffs‘ proper purpose, especially as it relates to the Board‘s
investigation into Wilson‘s trading. Indeed, part of my determination as to whether
Plaintiffs should have access to the Non-Employee Directors‘ private email accounts was
that any communication between or among Board members that reasonably could be
called an ―investigation‖ would have touched at some point the Company‘s network,
insofar as Company employees‘ email data is stored and searchable by the Company.
The Nicholas Email is just that sort of communication, and I find it necessary for
Plaintiffs‘ investigatory purpose. Based in part on my ruling as to the Non-Employees‘
personal email accounts, the Nicholas Email almost certainly is unavailable to Plaintiffs
by any other means. Thus, this aspect of Garner cuts in favor of setting aside privilege as
to the Nicholas Email.
Second, I find that the WSJ Email Chain also is necessary for purposes of this
element of the Garner analysis, although it presents a much closer question than the
Nicholas Email. In this regard, Plaintiffs seek communications, including legal advice,
underlying the coordinated response of Wilson and the Company to the Wall Street
Journal article. Based on the production already made by the Company, Plaintiffs
83
Arg. Tr. 41.
32
evidently have at least some of the information underlying WSJ Email Chain—i.e., the
Trading Plan, the statement reflecting the June 7 trade itself, and related documents and
communications. On the other hand, lululemon did not make a statement in response to
the WSJ inquiry, and Plaintiffs do not know what, if anything, lululemon‘s counsel told
Wilson, his representatives, or his attorneys in this regard, or what other information
Nicholas may have had regarding the Wilson June 7 trades.
Having considered these circumstances, I consider the WSJ Email Chain,
including the legal advice contained in it, to be directly related to Plaintiffs‘ proper
purpose of investigating their potential Brophy claim against Wilson and their potential
claim of mismanagement against the Directors. As to whether Plaintiffs already have all
the underlying information pertaining to the WSJ Email, the record is less clear. To the
extent they do not, it is unlikely the missing information would available from any other
source. Thus, while this element of the Garner analysis does not cut as strongly in favor
of lifting the privilege as it did in the case of the Nicholas Email, I conclude that it
weighs slightly in favor of production.
c. Does the alleged wrongdoing constitute a criminal act?
Lululemon argues that in light of the existence of the Trading Plan, which now has
been produced, ―Plaintiffs cannot credibly allege that any criminal or illegal acts
occurred.‖84 While lululemon repeatedly avers that the Trading Plan conclusively
demonstrates that no insider trading took place, such a conclusion would be premature
84
Def.‘s Sur-reply Ltr. at 16.
33
based on the truncated record before me. While the Trading Plan may weigh against a
finding that insider trading occurred, and, indeed, ultimately might absolve Wilson of
liability, its mere existence and the fact that its mechanics literally may have been
adhered to do not, in and of themselves, preclude insider trading. It remains conceivable
that Wilson or someone else associated with Wilson or the Company may have tipped off
the broker handling the Trading Plan and thereby engaged in wrongful trading. The
suspicious nature of the timing and size of the June 7, 2013 trade still remains. In sum,
the claims that provided the foundation of Plaintiffs‘ proper purpose in this case stem
from an underlying allegation of criminal conduct, namely insider trading; therefore, this
element of Garner is satisfied.
d. Do the communications relate to advice concerning this litigation?
Under Garner the courts look to whether the evidence sought relates to advice
about the present litigation itself, or instead to the underlying events and conduct that
gave rise to the plaintiffs‘ proper purpose. According to Wal-Mart II, setting aside
privilege is more justified in the latter situation than the former.85 This aspect of the
analysis is not applied rigidly, however, and depends on the specific facts of the case.86
For example, in Espinoza v. Hewlett-Packard Co., after the CEO was investigated for
85
Wal-Mart II, 95 A.3d at 1280 (―‗[As to] whether the communication is advice
concerning the litigation itself, no, this is not after those litigations. So I don‘t
think it‘s trying to get into [advice about] how to defend against what the plaintiffs
are doing. This is during the real-time of Wal-Mart dealing with this thing.‘‖)
(quoting Wal-Mart I, at 86.).
86
Espinoza I, at 21.
34
possible sexual harassment, he resigned with severance pay rather than risk being fired
for cause. A stockholder then sought the company‘s books and records to investigate
whether the severance package the company paid to the exiting CEO constituted waste.
In analyzing the Garner factors to determine if good cause existed to set aside privilege
as to an interim report by the company‘s outside counsel investigating the alleged sexual
harassment, this Court considered the document to be related to legal advice about the
litigation itself, even though aspects of the report obviously dealt with the underlying
facts and events that preceded the litigation.87 Similarly, in Saito, this Court denied the
stockholder‘s request for post-merger advice based in part on finding that it related to the
litigation itself.88 In that regard, the Court concluded that ―[the company‘s] legal analysis
is also related to the litigation at hand. The improprieties at issue were discovered post-
merger. At that point, defendant obtained legal advice to prepare for the ensuing
litigation. To grant plaintiff access to this information, in my opinion, would be
improper.‖89
In this case, it does not appear that this factor weighs against application of the
fiduciary exception. Plaintiffs seek privileged communications relating to legal advice
87
Id. I note that this element of the Garner analysis was not emphasized in the
circumstances of the Espinoza case, which relied more heavily on the ―necessity‖
element of Garner in determining that the privilege should be protected there. Id.
at 21-24.
88
Saito, 2002 WL 31657622, at *14.
89
Id.
35
given to the Company almost immediately after the suspicious trading was discovered.
The legal advice contained in the Nicholas Email and the WSJ Email Chain was given to
help the Company determine the appropriate legal response to that revelation. It is
possible that the participants in the privileged communications at issue contemplated the
potential of litigation; indeed as I noted above, that is part of the reason these
communications are privileged. But, I consider these two sets of documents to be more
analogous to the ―real-time‖ evidence that the Court in Wal-Mart II found to be subject to
the Garner exception than to either the Espinoza or the Saito situations.90 I therefore
conclude that this part of the Garner test weighs at least slightly in favor of allowing
Plaintiffs to view the documents notwithstanding the privilege.91
e. On balance, the Garner factors weigh in favor of allowing Plaintiffs to view
the challenged documents.
The Garner decision focused on the equitable concerns implicated in a situation
―where the client asserting the privilege is an entity which in the performance of its
functions acts wholly or partly in the interests of others, and those others, or some of
them, seek access to the subject matter of the communications.‖92 In so doing, Garner
90
Wal-Mart II, 95 A.3d at 1280.
91
I consider this factor of the analysis to distinguish between: (1) communications
about the ―present litigation itself‖ (Espinoza I, at 21), or advice about ―how to
defend against what the plaintiffs are doing‖ (Wal-Mart II, 95 A.3d at 1280); and
(2) communications that might relate to a non-specific contemplation of future
litigation. The Nicholas Email and the WSJ Email Chain fall more in the latter
category and, therefore, are more likely to be subject to the fiduciary exception.
92
Garner, 430 F.2d at 1101.
36
was respectful of the importance of protecting the attorney-client privilege, but also
cognizant of an important precept of corporate law, which is that ―when all is said and
done management is not managing for itself.‖93
Thus, while Garner and Wal-Mart II enumerate a ―panoply of factors‖94 that
courts should consider in determining whether stockholder plaintiffs have ―good cause‖
to set aside attorney-client privilege under the fiduciary exception, I decline to apply
those factors mechanically. Instead, I have reviewed all of the factors and, cognizant of
the principles on which the fiduciary exception is founded, considered whether or not
their cumulative weight tends toward a showing of ―good cause‖ to access the withheld
documents.
The Company conceded that the documents sought are identifiable and limited in
number; that Plaintiffs are substantial stockholders; that Plaintiffs have a proper purpose
under Garner; and that the communications did not involve trade secrets. In the
preceding analysis, I found that Plaintiffs‘ claims of alleged wrongdoing are obviously
colorable. Moreover, the documents Plaintiffs seek in this regard do not relate to the
present litigation, but rather to the real-time events underlying the action that gave rise to
Plaintiffs‘ proper purpose. I also found that the Nicholas Email and to a lesser extent the
93
Id.; see also Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946, 955 (Del. 1985)
(―[C]orporate directors have a fiduciary duty to act in the best interests of the
corporation‘s stockholders.‖) (citing Guth v. Loft, Inc., 5 A.2d 503, 510 (Del.
1939)).
94
Wal-Mart II, 95 A.3d at 1279.
37
WSJ Email Chain are necessary to Plaintiffs and unavailable from another source.
Furthermore, no one factor predominates under the Garner analysis. Rather, the various
elements are ―indicia that may contribute to a decision of presence or absence of good
cause.‖95 Taking into consideration all the Garner factors, the particular circumstances
of this case, and the relevant case law, I conclude that Plaintiffs have met their burden of
showing good cause. I hold, therefore, that Plaintiffs are entitled to review the Nicholas
Email and the WSJ Email Chain under Garner‘s fiduciary exception to privilege.
IV. CONCLUSION
For the reasons stated in this Memorandum Opinion, I deny Plaintiffs‘ motion in
part and grant it in part. I decline to order lululemon to search its directors‘ non-
Company email accounts. I grant Plaintiffs‘ request to review the WSJ Email Chain and
the Nicholas Email, because they have demonstrated good cause under Garner and Wal-
Mart II. Those documents shall be produced within five business days of the date of this
Memorandum Opinion.
IT IS SO ORDERED.
95
Garner, 430 F.2d at 1104.
38