The District Court of Tel Aviv ("Court") recently ruled on the applicability and maintenance of attorney-client privilege to corporate board meeting minutes.
This decision was made in the course of an application for approval of a class action suit against an Israeli bank and the bank officers, all of whom allegedly violated their duty to disclose information to shareholders. This specific issue arose in connection with a request to view certain board meeting protocols, which included citations from conversations with the bank's external and internal counsel ("Protocols").
In its ruling, the Court granted the bank's request to redact information contained in the Protocols relating to conversations held with bank attorneys, holding that these communications fell under the rubric of attorney-client privilege and were therefore confidential. The Court applied a two-pronged test: first, whether the conversations were held with bank counsel, and second, whether the material related to issues clearly part of professional services provided by attorneys.
The Court held that in the case at hand, attorney-client privilege applied even where the bank's attorneys did not directly participate in meetings, but rather their advice was cited in the Protocols by bank representatives. Furthermore, the bank's delivery of the Protocols to the Israel Securities Authority ("ISA") did not invalidate attorney-client privilege, as the bank expressly indicated to the ISA that it sought to maintain the confidentiality of the Protocols and the ISA was obligated to preserve such confidentiality.
The Court stated that in order to determine whether a party's conduct results in a waiver of attorney-client privilege, the entirety of the circumstances must be considered, including whether the client views the relevant information as confidential, and whether a transfer to an official body was made with the intention of preserving such confidentiality.
The Court held where it is neither possible based on the facts nor desirable to infer a waiver of attorney-client privilege, it is not appropriate to hold that such privilege has been relinquished.
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