In In re Comverge, Inc. Shareholders Litigation, No. 7368 (Del. Ch. Apr. 10, 2013), the court held that the defendants did not waive privilege by asserting in the litigation that the Board consulted counsel before making a business decision. At issue in underlying litigation was whether the members of the Board of Directors had breached their fiduciary duties by failing to enforce the terms of a standstill agreement. Plaintiffs alleged that defendants had put communications with Comverge’s attorneys “at issue” during the preliminary injunction proceeding when defendants stated that they had consulted with counsel before making a business decision. Defendants argued that there was no waiver, because they did not intend to rely on counsel’s advice as a defense, but rather had merely rebutted plaintiffs’ assertion that the defendants had failed to solicit legal advice before acting. The court agreed, finding that defendants had been careful not to inject the advice of counsel into the matter. Defendants had asserted that the Board sought, obtained, received or considered the advice of counsel before making a business decision. However, defendants made no assertion that they adhered to counsel’s advice, which would have put the advice of counsel at issue and would have waived the privilege.