Delaware Supreme Court Rejects Presumption Of Confidentiality For Books-And-Records Productions

Author:Mr Jonathan Richman
Profession:Proskauer Rose LLP
 
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The Delaware Supreme Court yesterday rejected a presumption of confidentiality for documents produced pursuant to books-and-records inspection requests under § 220 of the Delaware General Corporation Law. The decision in Tiger v. Boast Apparel, Inc. (Del. Aug. 7, 2019) holds that courts can impose confidentiality restrictions in appropriate cases, but that some justification of confidentiality is necessary – and that an indefinite period of confidentiality should be the exception, not the rule.

In light of the emphasis that the Delaware Supreme Court has placed on § 220 requests particularly in the context of shareholder derivative actions, parties making and receiving those requests might now need to focus more closely on whether and the extent to which confidentiality restrictions can be justified and, if so, how long they should last.

Background

Section 220 allows shareholders of Delaware corporations to demand inspection of corporate books and records if the shareholders can satisfy certain requirements, including establishing a proper purpose for the inspection request. Proper purposes can include valuing the shareholder's shares, investigating potential mismanagement and potential claims, communicating with other shareholders about a potential proxy campaign, etc.

Delaware courts have repeatedly encouraged shareholders contemplating derivative actions on behalf of Delaware corporations to make § 220 inspection demands before suing. The courts have hoped that prospective plaintiffs' pre-suit receipt of books and records will discourage meritless derivative actions – and bring more focus and detail to potentially meritorious ones.

Corporations producing books and records in response to § 220 demands frequently seek to impose confidentiality restrictions on the productions. Over the past decades, loose language in certain Delaware cases has led some courts to presume that confidentiality is appropriate for nonpublic corporate information, and some broad confidentiality orders have been entered.

Delaware Supreme Court's Decision

The Delaware Supreme Court rejected that approach in the Tiger case, holding that "there is no presumption of confidentiality in Section 220 productions."

The Supreme Court acknowledged that the Court of Chancery "certainly has the power to impose reasonable confidentiality restrictions" and that "targets of Section 220 demands will often be able to demonstrate that some degree of confidentiality is warranted...

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