Directors may also be entitled to access legal advice provided to the board before their tenure if they have a present need for that information to perform their fiduciary duties. See Intrieri v. Avatex Corp., 1998 WL 326608, at *2 (Del. Ch. June 12, 1998) (declining to recognize a broad rule allowing a corporation to withhold privileged documents created before an individual becomes a director, because it "would have the potential to hinder a director's ability to perform his fiduciary duties"); cf. SerVaas v. Ford Smart Mobility LLC, 2021 WL 5226487, at *5 (Del. Ch. Nov. 9, 2021) (denying access to privileged information that predated the plaintiffs' tenure on the board where they sought the information in furtherance of personal litigation).
"[P]rivileged information can be withheld from a director 'once sufficient adversity exists between the director and the corporation such that the director could no longer have a reasonable expectation that he was a client of the board's counsel.'"SerVaas v. Ford Smart Mobility LLC, 2021 WL 5226487, at *2 (Del. Ch. Nov. 9, 2021) (quoting Moore Bus. Forms, Inc. v. Cordant Hldgs. Corp., 1996 WL 307444, at *4 (Del. Ch. June 4, 1996)). Id. at *3 (Del. Ch. Nov. 9, 2021) (quoting Moore, 1996 WL 307444, at *4)
The Company next fixates on a case that it interprets as applying Section 220(d) -style considerations to a discovery dispute. In SerVaas v. Ford Smart Mobility LLC , 2021 WL 5226487 (Del. Ch. Nov. 9, 2021), this court issued a letter ruling that reached a logical result on the facts presented. The decision did not purport to change the law or depart from the joint client approach.
Moore Bus. Forms., 1996 WL 307444, at *5. Henshaw v. Am. Cement Corp., 252 A.2d 125, 128 (Del. Ch. 1969); see SerVaas v. Ford Smart Mobility LLC, 2021 WL 5226487, at *3 (Del. Ch. Nov. 9, 2021). There are three recognized limitations on a director's right to access: