Plaintiffs in Salberg v. Genworth Financial, Inc., No. 2017-0018-JRS (Del. Ch. July 27, 2017) asserted derivative claims against Genworth’s officers and directors.  While the derivate action was pending, Genworth entered into a merger agreement through which it was to be acquired.  The Salberg plaintiffs, represented by the same counsel as in the derivative action, filed a new books and records action seeking information “they believed would reflect whether Genworth’s board of directors considered the value of the derivative claims in negotiating the merger.”  In response, Genworth produced hundreds of redacted documents, asserting attorney-client privilege over assessments of the legal claims in the derivative action.  Plaintiffs challenged the propriety of the redactions under the Garner fiduciary exception, which provides that “in certain instances, the attorney-client privilege will be unavailable to corporate fiduciaries who are defending claims brought against them by those to whom the fiduciary duty is owed.”  Despite finding that plaintiffs met nearly all of the Garner factors, the Chancery Court ultimately accepted defendants’ argument that plaintiffs should not be permitted to use a books and records request to obtain documents to which they would not have been entitled in the derivative action. Specifically, the Court held that there was “no basis under Section 220 or otherwise to compel the defendants in the Derivative Action to produce to their adversary the privileged communications they engaged in with their attorneys regarding the bona fides of the claims they are defending.”