ORDER DENYING PLAINTIFF'S MOTION FOR IN CAMERA
REVIEWAND MOTION TO COMPEL
Montgomery-Reeves Vice Chancellor
on May 31, 2017, this Court entered a Memorandum Opinion in
Plaintiff's favor, requiring the production of certain
books and records (the "Memorandum Opinion");
on June 29, 2017, Defendant Express Scripts Holding Co.
produced certain documents and provided a privilege redaction
log (the "Log");
on November 27, 2017, Plaintiff Clifford Elow filed a Motion
for In Camera Review and to Compel Production (the
"Motion") of eleven documents (the "Atkins
Documents") that Defendant withheld on attorney-client
privilege and work product grounds;
on January 16, 2018, Defendant filed a reply in opposition to
on February 8, 2018, Plaintiff filed a reply in further
support of the Motion;
on March 8, 2018, the Court held argument on the Motion.
THEREFORE, THE COURT HEREBY FINDS AND ORDERS AS FOLLOWS:
have reviewed the parties' briefs, supporting
submissions, and the applicable law. For the foregoing
reasons, the Motion is DENIED.
Plaintiff argues that in camera review is necessary
because each redacted material "contains business
discussions or, at best, a combination of legal and business
advice." Pl.'s Mot. for In Camera Review 8.
After reviewing the Log entries and the Atkins Documents, I
have no reason to believe that Defendant improperly asserted
attorney-client privilege. See Sicpa Hldgs. S.A. v.
Optical Coating Lab, Inc., 1996 WL 636161, at *13 (Del.
Ch. Oct. 10, 1996) (acknowledging that this Court denies
in camera review when the party requesting the
review fails to show "that the representation[s] of the
party asserting the privilege are inaccurate."). Thus,
Plaintiff's request for in camera review is
denied. See Doppelt v. Windstream Hldgs., Inc., C.A.
No. 10629-VCS, at 24 (Del. Ch. Sept. 11, 2017) (TRANSCRIPT)
("I have expressed before my reluctance to have a
process that would contemplate the [C]ourt engaging in
in-camera review every time a privilege issue
Plaintiff further argues that production is warranted even if
the Atkins Documents are privileged because the
Garner exception applies. Pl.'s Mot. for In
Camera Review 10. "[O]ur law embraces the
attorney-client privilege and recognizes its importance to
the proper administration of justice, " but this
privilege is not absolute. Salberg v. Genworth Fin.,
Inc., 2017 WL 3499807, at *3 (Del. Ch. July 27, 2017).
In Garner v. Wolfinbarger, the Fifth Circuit
established a fiduciary exception to the attorney-client
privilege in a stockholder derivative action. 430 F.2d 1093,
1103-04 (5th Cir. 1970). In Wal-Mart Stores, Inc. v.
Indiana Electrical Workers Pension Trust Fund IBEW, the
Delaware Supreme Court adopted the Garner exception
and extended its application to books and records actions
under 8 Del. C. § 220. 95 A.3d 1264, 1280 (Del.
2014). A party seeking to access privileged documents under
the Garner exception must show "good
cause" to set aside privilege. Id. at 1275. In
Garner, the Fifth Circuit set out multiple factors
that demonstrate good cause to invoke the fiduciary
exception. 430 F.2d at 1104. The purpose of these factors is
to "conduct a 'balancing test … to determine
whether the balance tips in favor of disclosure or
non-disclosure.'" Salberg, 2017 WL 3499807,
at *5. Delaware courts have identified three factors of
"particular significance": "(1) the
colorability of the claim; (2) the extent to which the
communication is identified versus the extent to which the
shareholders are blindly fishing; and (3) the apparent
necessity or desirability of shareholders having the
information and availability of it from other sources."
E.g., Buttonwood Tree Value P'rs, L.P. v.
R.L. Polk & Co., 2018 WL 346036, at *4 (Del. Ch.
Jan. 10, 2018); Salberg, 2017 WL 3499807, at *5.
Plaintiff contends that he has met all three factors.
First, Plaintiff argues that his claims are
"colorable" because he "prevailed in his
Section 220 action." Pl.'s Mot. for In
Camera Review 12. This Court has accepted that the
"colorability" of a claim must be assessed under
the "credible basis" standard in Section 220
actions. Salberg, 2017 WL 3499807, at *5. Because I
found that Plaintiff met the "lowest possible burden of
proof" satisfying credible basis in the Memorandum
Opinion, he has sufficiently shown that his claims are
colorable. Elow v. Express Scripts Hldg. Co., 2017
WL 2352151, at *6 (Del. Ch. May 31, 2017).
Second, Plaintiff asserts that he is not "blindly
fishing" because the eleven documents at issue are
specifically tailored and identifiable by description and
Bates Number. Pl.'s Mot. for In Camera Review
12. I agree that Plaintiff is not fishing and that the
documents are precisely identified. See Salberg,
2017 WL 3499807, at *5 (stating that the parties did not
dispute that the documents at issue were precisely
identified, and therefore, the plaintiffs were not
Third and finally, Plaintiff argues that he has demonstrated
that the information is necessary and that the information is
not available from other sources. In support of his claim,
Plaintiff states in one sentence, "[i]ndeed, the
documents sought specifically relate to Defendant's
relationship with Anthem, and are not available from any
other source, making them appropriate for production."
Pl.'s Mot. for In Camera Review 13.
Plaintiff's conclusory statement does not convince me
that the information cannot be obtained by other
non-privileged sources, such as the sixty-four internal
documents he received after trial. See Oliver v. Bos.
Univ., 2004 WL 944319, at *3 (Del. Ch. April 26, 2004)
(finding that the plaintiffs failed to identify what
documents they "believe would be helpful in remedying
this knowledge ...