In Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, No. 7906 (Del. Ch. Nov. 15, 2013), the court held that Delaware law provides that, following a merger, all privileges of the acquired company, including the attorney-client privilege, are transferred to the acquirer absent contractual language to the contrary. In this case, one year after the merger, Buyer sued Seller for fraudulent inducement to enter into the merger transaction. Buyer notified Seller that it intended to use as evidence pre-merger communications between the company and its transaction counsel, which Seller had left on the company’s computer systems at the time of the merger and had taken no steps to retrieve in the intervening year following the merger. Seller asserted the attorney-client privilege, arguing that the privilege over the pre-transaction communications had not transferred to Buyer. Section 259 of the Delaware General Corporation Law (“DGCL”) states that following a merger, “all property, rights, privileges, powers and franchises, and all and every other interest shall be thereafter as effectually the property of the surviving or resulting corporation. . . .” Distinguishing case law decided under New York law, the court held that the statute means what it says. In the absence of contractual provisions to the contrary, all privileges transfer to the surviving corporation. The court explained that it is common for parties to address the issue of privilege, particularly regarding communications between the seller and its transaction counsel, in the deal documents. Failure by the seller to carve out privilege from the sale results in transfer of the privilege to the buyer.