COURT OF CHANCERY

OF THE

SAM GLASSCOCK III

VICE CHANCELLOR

STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE

34 THE CIRCLE

GEORGETOWN, DELAWARE 19947

Date Submitted: September 10, 2021

Date Decided: October 4, 2021

David A. Jenkins, Esquire

Neal C. Belgam, Esquire

Jason Z. Miller, Esquire

Smith Katzenstein & Jenkins LLP

1000 West Street, Suite 1501

P.O. Box 410

Wilmington, DE 19801

Kenneth J. Nachbar, Esquire

Lauren K. Neal, Esquire

Michael J. Slobom Jr., Esquire

Morris Nichols Arsht & Tunnell LLP

1201 North Market Street

Wilmington, DE 19801

Susan M. Hannigan, Esquire

Ryan D. Konstanzer, Esquire

Richards Layton & Finger, P.A.

One Rodney Square

920 North King Street

Wilmington, DE 19801

RE: Pascal v. Czerwinski, et al.

 C.A. No. 2020-0320-SG

Dear Counsel:

This litigation involves derivative claims against corporate directors of 

Columbia Financial, Inc. (the “Company” and, together with the corporate directors, 

the “Defendants”), alleging that the directors committed breaches of fiduciary duty 

and were unjustly enriched in connection with enacting an Equity Incentive Plan

which, the Plaintiff contends, provided each corporate director with excessive and 
2

unfair financial benefits. The Plaintiff has moved to compel production of certain 

documents which were submitted to me by the parties for in camera review

following briefing and oral argument. The heart of the dispute is whether attorneyclient privilege has been waived by the Defendants with respect to certain 

correspondence and documentation traded in the e-mail presence of the Company’s 

compensation consultants. 

Attorney-client privilege applies to certain confidential communications 

made in the process of rendering professional legal services to the client.1 I find that 

attorney-client privilege is not waived when a consultant, who was retained to 

provide assistance to the client and its attorneys in making judgments that involve 

legal analysis, is copied into email chains, provided that the intent is to keep these 

communications confidential.2 Here, the compensation consultants were copied on 

or active participants in numerous email threads discussing presentations to be made 

to the Company’s compensation committee, the drafting of the Company’s proxies, 

and various recommendations and research of both counsel and the compensation 

consultants, often in the carbon-copied presence of the client. I am convinced that 

1 See D.R.E., Rule 502(b). 

2 See, e.g., Cephalon, Inc. v. Johns Hopkins Univ., 2009 WL 2714064, at *2 (quoting D.R.E.,

Rule 502(b)) (“[T]he privilege recognized in D.R.E. 502(b) applies to communications among 

nonlawyer representatives of the client, provided the communications are confidential and ‘for 

the purpose of facilitating the rendition of professional legal services to the client.’”); Jedwab v. 

MGM Grand Hotels, Inc., 1986 WL 3426, at *2 (Del. Ch. Mar. 20, 1986) (describing 

confidential communications seeking professional guidance from an investment banker as an 

example of a privileged communication extended to a third party which remains privileged).
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these communications were intended to remain confidential, as defined in the 

Delaware Rules of Evidence, because the compensation consultants received 

disclosure “in furtherance of the rendition of professional legal services to the 

client.”3

 As such, this finding appears to apply to most of the documents that have 

been submitted for in camera review. I have not at this stage considered whether 

unfair use of any of these privileged documents requires remediation by the Court.

In light of this holding, the parties should meet and confer and inform me as 

to whether any additional documents remain that require Court intervention. 

To the extent the foregoing requires an Order to take effect, IT IS SO 

ORDERED. 

Sincerely,

 /s/ Sam Glasscock III

 Sam Glasscock III

3 See D.R.E., Rule 502(a).