Yes, the attorney-client privilege is recognized in Delaware and codified in the Delaware Uniform Rules of Evidence (D.R.E.).  See D.R.E. 502.  

Not applicable.  The attorney-client privilege is expressly codified in D.R.E. 502. Delaware is a common-law jurisdiction. 

There is no material difference in the application of attorney-client privilege in criminal and civil cases.  However, there is an open question as to whether, in certain circumstances, the attorney-client privilege must give way to a defendant’s right of confrontation.  See Buckham v. State, 185 A.3d 1, 14-15 (Del. 2018).  The resolution of this issue could create a distinction in the application of attorney-client privilege in criminal and civil cases.  Absent the exceptions outlined in D.R.E. 502, and the limitations to the work product protection discussed below, there does not appear to be any basis for government authorities to force the disclosure of privileged or protected information. 

The attorney-client privilege fully applies where the corporation is the client seeking legal advice.  Zirn v. VLI Corp., 621 A.2d 773, 781 (Del. 1993) (citing Upjohn v. United States, 449 U.S. 383 (1981)).  Delaware courts generally follow the Upjohn approach.  See Deutsch v. Cogan, 580 A.2d 100, 104 (Del. Ch. 1990); Tabas v. Bowden, 1982 WL 17820, at *4 (Del. Ch. Feb. 16, 1982).   

Delaware courts do not treat in-house and outside counsel differently for purposes of the attorney-client privilege.  PharmAthene, Inc. v. SIGA Technologies, Inc., 2009 WL 2031793 (Del. Ch. July 10, 2009); Grimes v. LCC Int’l, Inc., 1999 WL 252381 (Del. Ch. Apr. 23, 1999).  It should be noted, however, that the attorney-client privilege applies to communications seeking or providing legal advice, not business advice (even if the business advice is sought from or provided by a lawyer), which can be an issue when communications are with in-house counsel serving multiple roles.  

N/A

N/A

Yes, the common interest doctrine is codified in D.R.E. 502.  See also Glassman v. Crossfit, Inc., 2012 WL 4859125, at *3 (Del. Ch. Oct. 12, 2012).

“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 . . . 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.”  D.R.E. 502(b)(3).

No, a written agreement is not required to assert a claim of common interest privilege.  See In re Quest Software Inc. Shareholders Litig., 2013 WL 3356034, at *4 (Del. Ch. July 3, 2013) (upholding claim of common interest privilege where defendants did not have written agreement).

There are no professional rules with respect to litigation funding, but the practice is allowed.  See Charge Injection Technologies, Inc. v. E.I. DuPont De Nemours & Co., 2016 WL 1359894, at *3 (Del. Super. Mar. 9, 2016) (finding that litigation funding agreement did not constitute champerty or maintenance).  However, to avoid claims of champerty and maintenance: (i) the litigation funding agreement should not assign ownership of the claims to the financier; (ii) the financier should not have any rights to direct or control the litigation; and (iii) the plaintiff should retain the unfettered right to settle the litigation at any time and for any amount.  Id.

Yes, the Court of Chancery has found that documents and communications relating to third-party funding qualify for work product protection.  See Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A., 2015 WL 778846, at *9 (Del. Ch. Feb. 24, 2015) (“Allowing work product protection for documents and communications relating to third-party funding places those parties that require outside funding on the same footing as those who do not and maintains a level playing field among adversaries in litigation. Thus, even though claim funding is the business of financing lawsuits, which means the Discovery Documents serve a business purpose, those documents simultaneously also are litigation documents and work product protection is appropriate.”).

Yes, “[i]f the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud” the attorney-client privilege does not apply.  D.R.E. 502(d)(1).  

The crime-fraud exception is codified in D.R.E. 502(d)(1).  Princeton Ins. Co. v. Vergano is the most cited Court of Chancery case interpreting the crime-fraud exception.  883 A.2d 44 (Del. Ch. 2005).  In that case, the Court explained that the crime-fraud exception only comes into play in the following circumstances: (i) “when the client obtains the advice of the lawyer in order to help shape a future course of criminal or fraudulent activity[,]” (ii) “when the client tries to use the attorney as a secret repository for evidence of criminal or fraudulent behavior, by giving the attorney the smoking gun, be it an actual pistol or a ‘hot’ document[,]” and (iii) “when the client confesses that he abused the lawyer's services for an improper purpose and will escape the consequences of his improper behavior absent the lawyer's disclosure[.]”  Id. at 56-57. 

The work product doctrine is not codified in the Delaware Uniform Rules of Evidence.  Instead, the traditional work product doctrine has been codified in: (i) Chancery Court Rule 26(b)(3), and (ii) Superior Court Civil Rule 26(b)(3). 

The work product doctrine protects materials prepared in anticipation of litigation or for trial by or for another party or for that other party’s representative.  See In re Oracle Corp. Derivative Litig., 2019 WL 6522297, at *20 (Del. Ch. Dec. 4, 2019).  “To qualify for work product immunity ‘materials [must] be written specifically in preparation for threatened or anticipated litigation.’”  Id. (quotation omitted) (alteration in original).  A party may discover materials covered by the work product protection “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”  Ch. Ct. R. 26(b)(3).

No.  See In re Best Lock Corp. S'holder Litig., 2000 WL 1876460, at *6 (Del. Ch. Dec. 18, 2000) (“Article V of the Delaware Rules of Evidence does not recognize an accountant-client privilege[.]”); Lee v. Engle, 1995 WL 761222, at *6 (Del. Ch. Dec. 15, 1995) (“Delaware does not recognize the accountant-client privilege[.]”); State v. Wright, 1994 WL 807898, at *1 (Del. Super. Ct. July 20, 1994) (“[T]here is no accountant-client privilege recognized in Delaware[.]”).

To an extent.  Chancery Court Rule 174 states that “[t]he Vice Chancellor presiding in a case, with the consent of the parties, may refer any case or issue in a case to . . . a designated mediator for voluntary mediation[.]”  Ch. Ct. R. 174.  In the event of a voluntary mediation pursuant to Rule 174, “any ‘communication made in or in connection with the mediation that relates to the controversy being mediated, whether made to the mediator or a party, ... is confidential’ and is ‘not subject to disclosure in any judicial or administrative proceeding’ (emphasis added). The only exceptions to this rule of confidentiality are where all the mediation parties agree in writing to waive confidentiality, or where the material was not prepared specifically for mediation and is otherwise subject to discovery.”  Wilmington Hosp., L.L.C. v. New Castle Cty. ex rel. New Castle Dep't of Land Use, 788 A.2d 536, 540 (Del. Ch. 2001) (quotation omitted).  In non-Rule 174 voluntary mediations, confidentiality would be provided for, if desired, in a mediation agreement. 

There is not a settlement negotiation privilege, but D.R.E. 408 generally bars the use of settlement negotiations as evidence.  That rule provides that the following cannot be used to prove or disprove the validity or amount of a disputed claim or to impeach by prior inconsistent statement or contradiction: “(1) furnishing, promising, or offering or accepting, promising to accept, or offering to accept -- a valuable consideration in order to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim.”  D.R.E. 408.  However, the Court may admit this evidence for another purpose such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.  Id.