In TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985 (Ind. 2014) (No. 46S03-1405-MI-337), the Indiana Supreme Court held that plaintiffs in a derivative action were entitled to the non-privileged portions of a report prepared for a Special Litigation Committee (SLC) that, in heavily redacted form, was submitted into evidence by the company, but that the use of the document did not waive privilege with respect to privileged portions of the report.  In this case, minority shareholders of TP Orthodontics (TPO), a closely held corporation, brought a derivative suit on behalf of TPO against the majority shareholder.  TPO’s board of directors formed an SLC, which hired counsel to conduct an investigation and to prepare a report.  In support of its motion to dismiss, TPO submitted a version of the report in which 120 pages of the 140 page report were redacted.  The minority shareholders argued that TPO’s use of a small portion of the report to demonstrate that there had been an investigation conducted in good faith required a finding of waiver over the entire report so that the shareholders could test whether the investigation had in fact been conducted in good faith.  Noting that Indiana has adopted a deferential approach to the business judgment rule, the court acknowledged that the entire report was relevant and would provide shareholders with information that could either prove or disprove that there had been a good faith investigation.  The shareholders’ interests did not, however, overcome the right of the SLC to assert privilege.  First, the SLC’s mere assertion that the investigation was conducted in good faith did not waive privilege, as the SLC made this assertion to respond to claims raised by the shareholders, who “are trying to force TPO to waive privilege.”  Second, to the extent that portions of the report are protected by the attorney-client privilege or by the work product doctrine, those privileges and protections were not waived by disclosure of non-privileged portions of the report.  The court remanded the case, directing the trial court to review the report in camera and to order production of those portions that the court determined were not privileged.  The court explained that, although in camera review should be rare, it was necessary for courts to conduct this review with respect to SLC reports so that trial courts can act as a “gatekeeper whose sole responsibility [at the motion to dismiss stage of the case] is to review the SLC report to determine what is or is not privileged[.]”