In Gardner v. Major Automobile Cos., No. 11 Civ. 1664 (E.D.N.Y. Mar. 31, 2014), the court held that general statements made during a deposition that the Board of Directors relied on advice of counsel did not waive privilege where the company made it clear to the court that it did not intend to rely on an advice of counsel defense at trial. In this breach of fiduciary duty case brought by minority shareholders against officers and directors, plaintiffs deposed defendant’s secretary and general counsel, Keltz. During Keltz’s deposition, plaintiff asked Keltz, among other things, why no special committee had been appointed, and why a second valuation was not necessary. In both cases, Keltz testified generally that the Board had relied on the advice of outside counsel in making those decisions. Plaintiff sought the deposition of outside counsel, arguing that the deposition testimony put the advice of counsel “at issue.” The court disagreed. Here, defendant stated unequivocally to the court that it would not be relying on the advice of counsel in support of either a claim or a defense. Following the Second Circuit’s decision in In re Cnty. of Erie, 546 F.3d 222 (2d Cir. 2008), “at issue” waiver occurs when a party intends to rely on the advice of counsel in support of a claim or a defense, not simply where the advice of counsel may be relevant to an issue in the case. Denying discovery of outside counsel’s communications would not prejudice plaintiffs where, as here, defendant did not intend to rely on those communications in the case.