COURT OF CHANCERY

OF THE

STATE OF DELAWARE

LORI W. WILL

VICE CHANCELLOR

LEONARD L. WILLIAMS JUSTICE CENTER

500 N. KING STREET, SUITE 11400

WILMINGTON, DELAWARE 19801-3734

Date Submitted: May 3, 2022

Date Decided: May 5, 2022

A. Thompson Bayliss, Esquire

Michael A. Barlow, Esquire

Eliezer Y. Feinstein, Esquire

Abrams & Bayliss LLP

20 Montchanin Road, Suite 200

Wilmington, Delaware 19807

Peter J. Walsh, Jr., Esquire

Matthew F. Davis, Esquire

Abraham C. Schneider, Esquire

Patrick A. Lockwood, Esquire

Potter Anderson & Corroon LLP

1313 North Market Street, 6th Floor 

Wilmington, Delaware 19801

Raymond J. DiCamillo, Esquire

Kevin M. Gallagher, Esquire

Daniel E. Kaprow, Esquire

Caroline M. McDonough, Esquire

Richards, Layton & Finger, P.A.

920 North King Street

Wilmington, Delaware 19801

RE: In re Aerojet Rocketdyne Holdings, Inc.

C.A. No. 2022-0127-LWW

Dear Counsel:

This decision resolves plaintiff Warren G. Lichtenstein’s motion to compel. 

He seeks documents withheld by the defendants and their outside counsel on the 

basis of the Aerojet Rocketdyne Holdings, Inc.’s (“Aerojet” or the “Company”)

privilege. Lichtenstein and his three fellow plaintiffs (who join in the motion)

comprise half of Aerojet’s board of directors (the “Board”) and are director 

nominees on a slate advanced by a Lichtenstein-affiliated entity in an ongoing 
C.A. No. 2022-0127-LWW

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proxy contest. The four defendants comprise the other half of the Board and are 

nominees on a competing slate.

This court previously entered a temporary restraining order preventing either 

Board faction from acting unilaterally on the Company’s behalf or using its 

resources in connection with the upcoming director election. Lichtenstein’s 

motion asks that the neutrality principles underlying the court’s order be extended

to the use of the Company’s privilege. It raises an unusual question: where two

halves of a deadlocked board are competing in a proxy contest, can one half assert 

the corporation’s privilege against the other? I conclude that, in these 

circumstances, it cannot.

For the reasons explained below, the plaintiffs are entitled to discovery of 

certain of the Company’s privileged information. The defendants have no greater 

claim to the Company’s privilege than the plaintiffs, who are joint clients of 

Company counsel. The plaintiffs and defendants are adverse to one another—at 

least in the context of the proxy contest. But it does not follow that one faction of 

the Board is adverse to Aerojet because the other is aligned with management. 

The even division of the Board means that neither side can benefit from the 

Company’s resources—including its privilege—to the exclusion of the other. The 

motion to compel is therefore granted.
C.A. No. 2022-0127-LWW

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I. BACKGROUND

Plaintiffs Lichtenstein, James R. Henderson, Audrey A. McNiff, and Martin 

Turchin filed this litigation against defendants Eileen P. Drake, Thomas A. 

Corcoran, Kevin P. Chilton, and Lance W. Lord on February 7, 2022.

1

Lichtenstein is Aerojet’s Executive Chairman and a major Aerojet stockholder 

through Steel Partners Holdings L.P. (together with its affiliates, “Steel”).

2

 Drake 

is the Company’s Chief Executive Officer and President.

3

 

Tensions between Lichtenstein and Drake purportedly developed in late 

2020 while the Company was negotiating a merger agreement with Lockheed 

Martin Corporation. Drake alleged that Lichtenstein—who wanted Aerojet to 

approach other possible bidders—was “laying the ground work . . . to remove [her] 

as CEO so he [could] pursue his strategy and personally benefit financially.”

4 On 

October 13, 2021, the Board formed a committee consisting of the other six

1 Verified Compl. for Declaratory J. (“Compl.”) ¶¶ 36-39, 41-44 (Dkt. 1).

2

Id. ¶ 36. More specifically, Lichtenstein is the Executive Chairman of Steel Partners

Holdings GP Inc., the general partner of Steel Partners Holdings L.P., which held roughly 

5.5% of Aerojet’s outstanding common stock through an indirect subsidiary when the 

Complaint was filed. Id.

3

Id. ¶ 41.

4

Id. ¶¶ 14-15, 18-19.
C.A. No. 2022-0127-LWW

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Page 4 of 17

members of the Board (the “Non-Management Committee”) to investigate Drake’s

allegations.

5

 

On January 25, 2022, the Federal Trade Commission sued to block the 

Company’s merger with Lockheed.

6

 In the days following, the Board—facing the 

strong possibility that the merger would not close and a fast-approaching

February 5 advance notice bylaw deadline—was unable to reach an agreement on 

the composition of a slate of director nominees for the 2022 annual meeting.

7

On January 28, 2022, Steel delivered a notice to the Company nominating 

seven director candidates for election.

8

 Steel’s slate included four incumbent

members of the Board—the plaintiffs in this litigation.

9

 The Company’s six 

independent directors met to attempt to agree to a compromise slate in late January 

but never reached a final agreement.

10 Steel amended its Schedule 13D on 

February 1, 2022 to disclose the nomination of its slate.11

5

Id. ¶¶ 18-19; see Pl. Warren G. Lichtenstein’s Mot. to Compel (“Mot. to Compel”) Ex. I 

(Dkt. 140); Mot. to Compel ¶ 18.

6 Compl. ¶ 20.

7

Id. ¶¶ 21-24.

8

Id. ¶ 25.

9

Id.

10 Id. ¶¶ 26-27.

11 Id. ¶ 28.
C.A. No. 2022-0127-LWW

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Later that day and on February 2, 2022, the defendants, without consulting 

the rest of the Board, caused the Company to issue a press release and submit 

related public filings signed by the Company’s general counsel.

12

 The press 

release disclosed the Non-Management Committee’s investigation and purported 

to speak on behalf of the Company, expressing “disappointment” with

Lichtenstein’s decision to launch a “disruptive” proxy contest.

13

 On February 3,

2022, the Company’s longtime outside counsel, Gibson Dunn & Crutcher LLP, 

writing in their “capacity as litigation counsel” for Aerojet, told the plaintiffs that 

their actions in connection with the proxy contest were “bad faith” breaches of 

fiduciary duty.14 

The plaintiffs’ Verified Complaint for Declaratory Judgment followed on 

February 7, 2022, along with motions to expedite and for a temporary restraining 

order.

15

 The Complaint seeks two declaratory judgments intended to maintain the 

Company’s neutrality with respect to the proxy contest: the first stating that

Aerojet officers, directors, and employees, among others, cannot act on the 

Company’s behalf without Board authorization; and the second stating that such

12 Id. ¶ 74.

13 Id. ¶ 75.

14 Id. ¶ 78; Compl. Ex. A.

15 Dkt. 1.
C.A. No. 2022-0127-LWW

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individuals cannot take actions on the Company’s behalf supporting either slate of 

director nominees so long as the Board remains split.

16

On February 10, 2022, Gibson Dunn sent an engagement letter to the 

defendants informing them that Aerojet had agreed to be jointly represented by the 

firm and to pay Gibson Dunn’s fees in connection with the joint representation.

17

 

The defendants signed the letter over the coming days.

18

 On February 11, 2022,

the defendants—individually and derivatively on behalf of Aerojet—and 

(purportedly) the Company brought suit against the plaintiffs. Gibson Dunn served

as litigation counsel to the Aerojet and the defendants.

19 The defendants 

voluntarily dismissed their claims without prejudice on March 7, 2022.20

On February 15, 2022, I granted the plaintiffs’ motions to expedite and for a 

temporary restraining order.21 The temporary restraining order required the 

Company and its advisors to remain neutral regarding issues over which the Board 

was divided.22 The order also required Gibson Dunn and Richards, Layton & 

16 Compl. ¶¶ 95, 100.

17 Defs.’ and Non-Party Gibson Dunn & Crutcher LLP’s Opp’n to Pl. Warren G. 

Lichtenstein’s Mot. to Compel (“Defs.’ Opp’n”) Ex. 1 (Dkt. 160).

18 Id.

19 C.A. No. 2022-0146-LWW, Dkt. 1.

20 Dkt. 55. 

21 Dkt. 38.

22 Temporary Restraining Order ¶ 2 (Dkt. 41).
C.A. No. 2022-0127-LWW

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Finger, P.A. to withdraw as Company counsel in connection with this litigation.

23

 

After a motion to enforce the temporary restraining order was filed and granted,

those firms sought leave to withdraw as counsel for Aerojet on March 9, 2022.24

The motion to withdraw was granted on April 20, 2022, following considerable 

delay in the retention of neutral counsel for the Company.

25

 

The present motion arises from 46 document requests the plaintiffs served 

on the defendants and a subpoena duces tecum served on Gibson Dunn.

26 After the 

defendants and Gibson Dunn served their written responses and objections,

27

Lichtenstein sought confirmation from the defendants that they would not seek to 

invoke the Company’s attorney-client privilege against him “other than to protect 

(a) confidential communications internal to the Non-Management Committee and 

its counsel; or (b) confidential communications regarding the substance of the 

internal investigation of Mr. Lichtenstein after the formation of the NonManagement Committee on October 13, 2021.”28 The defendants rejected that

23 Id. ¶ 7.

24 Dkts. 70, 96.

25 Dkt. 133.

26 Dkts. 53, 66; see Mot. to Compel Ex. H. 

27 Dkt. 91; Mot. to Compel Ex. L.

28 Mot. to Compel Ex. I.
C.A. No. 2022-0127-LWW

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request on April 20.

29

 Gibson Dunn also confirmed that, in its view, the plaintiffs’ 

subpoena sought documents and communications protected by the attorney-client 

privilege, which it could not waive.30

Lichtenstein filed this motion to compel on April 21, 2022.

31

 He seeks an 

order requiring that the defendants and Gibson Dunn to produce documents

withheld on the basis of Aerojet’s privilege and that the Company direct its 

advisors to produce any information they are currently withholding on the basis of 

the Company’s privilege.32 Two broad categories of documents are in play: 

(1) documents dated before October 13, 2021, when a special committee was 

formed to investigate Mr. Lichtenstein’s alleged misconduct, and (2) documents 

dated after October 13, 2021. Henderson, McNiff, and Turchin filed a joinder to

Lichtenstein’s motion on April 22, 2022.

33

Lichtenstein contends that, as a sitting director, his access to the Company’s 

privileged information is on equal footing with the rest of the Board unless it falls 

within the narrow confines of the Non-Management Committee’s investigation. 

29 Mot. to Compel Ex. K.

30 Mot. to Compel Ex. N.

31 Dkt. 140.

32 Mot. to Compel ¶ 13.

33 Dkt. 143.
C.A. No. 2022-0127-LWW

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His position relies on his broad information rights as a director and principles of 

corporate neutrality.

The defendants argue that the plaintiffs are not entitled to the Company’s 

privileged information because they seek it in furtherance of their proxy contest 

rather than their fiduciary duties. The defendants further aver that the plaintiffs 

became adverse to the Company, such that they could no longer expect to be 

within its privilege, by no later than the time that Steel delivered its nomination 

notice. They also contend that—even if the plaintiffs were given access to 

Company privileged information—the court should deny discovery into 

communications subject to a joint privilege between the Company and defendants.

II. LEGAL ANALYSIS

Under Delaware law, a corporation generally cannot assert the attorneyclient privilege “to deny a director access to legal advice furnished to the board 

during the director’s tenure.”

34

 A director’s right to information is “essentially 

34 Moore Bus. Forms, Inc. v. Cordant Hldgs., 1996 WL 307444, at *4 (Del. Ch. June 4, 

1996).
C.A. No. 2022-0127-LWW

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unfettered in nature”

35 and includes “equal access to board information.”36 The

right arises from a director’s duty “to protect and serve the corporation.”

37

 

There are three recognized limitations on a director’s right to access:

First, a “director’s right can be diminished by an ex ante

agreement among the contracting parties.” Second, the 

board can form a special committee excluding a director, 

and that committee “would [be] free to retain separate 

legal counsel, and its communications with that counsel 

would [be] properly protected.” Third, privileged 

information can be withheld from a director “once 

sufficient adversity exists between the director and the 

corporation such that the director could no longer have a 

reasonable expectation that he was a client of the board’s 

counsel.”

38

The first limitation is not at issue here. No ex ante agreement limited the

Aerojet directors’ access to information. 

The second limitation is implicated but not in serious dispute. It allows a 

board committee formed with the excluded director’s knowledge to engage in 

privileged communications with its counsel, “at least to the extent necessary for the 

committee’s ongoing work, such as conducting a special committee investigation 

35 Schoon v. Troy Corp., 2006 WL 1851481, at *1 n.8 (Del. Ch. June 27, 2006).

36 Moore Bus. Forms., 1996 WL 307444, at *5. 

37 Henshaw v. Am. Cement Corp., 252 A.2d 125, 128 (Del. Ch. 1969); see SerVaas v. 

Ford Smart Mobility LLC, 2021 WL 5226487, at *3 (Del. Ch. Nov. 9, 2021). 

38 Ford Smart Mobility, 2021 WL 5226487, at *2 (quoting Kalisman, 2013 WL 1668205, 

at *4-5 (Del. Ch. Apr. 17, 2013)).
C.A. No. 2022-0127-LWW

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or negotiating an interested transaction.”

39

 Lichtenstein acknowledges that he is 

not entitled to confidential communications post-dating the Non-Management 

Committee’s formation on October 13, 2021 that concern the substance of its

investigation. And the defendants do not meaningfully argue that he is not entitled 

to communications created, sent, or received before that date. There is no 

indication that Lichtenstein had reason to believe that he would be the subject of a 

Company investigation before the Committee’s formation.

40

 Instead, the 

defendants’ arguments concerning pre-October 13, 2021 documents concern 

focus—unpersuasively—on relevance.

41

39 In re CBS Corp. Litig., 2018 WL 3414163, at *4 (Del. Ch. July 13, 2018).

40 The defendants made a half-hearted argument at the motion to compel hearing that

adversity existed earlier because Lichtenstein received a cease-and-desist letter from the 

Company’s non-executive directors in September 2021. Gibson Dunn & Crutcher’s Mot. 

to Quash and for a Protective Order and Pl.’s Mot. to Compel Hr’g Tr. May 3, 2022, at

38-39 (Dkt. 202); see Defs.’ Opp’n ¶ 6. The directive followed statements made by 

Lichtenstein about a possible merger between the Company and Lockheed Martin. Id. To

the extent that letter created any form of adversity, that adversity would only exist 

regarding the potential merger. See In re CBS, 2018 WL 3414163, at *7 (granting motion 

to compel “other than [with respect to] the matters falling within” the specific subject of 

adversity).

41 The defendants’ written responses to the plaintiffs’ document requests include 

numerous relevance objections. Lichtenstein’s motion states that it addresses only the

“privilege objections” and that Lichtenstein “reserves the right to challenge [defendants’] 

other meritless objections.” Mot. to Compel n. 2. The defendants’ opposition, however,

argues that the irrelevance of documents sought provides grounds to deny the motion. 

For example, they argue that, because the proxy contest arose in early 2022, documents 

from before October 13, 2021 are irrelevant. Defs.’ Opp’n ¶ 28. To the extent that 

relevance is even a question before me, it bears emphasizing that the scope of discovery 

is “broad and far-reaching.” Cal. Pub. Emps. Ret. Sys. Coulter, 2004 WL 1238443, at *1 
C.A. No. 2022-0127-LWW

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The parties’ disagreement centers on whether the adversity limitation

provides grounds for privileged documents and communications created after 

October 13, 2021 (excluding those revealing the substance of the investigation) to 

be withheld from the plaintiffs. Application of the adversity limitation “is assessed 

in view of the reasonableness of a director’s own expectations.”

42

 According to the 

defendants, the plaintiffs could not have reasonably expected to remain clients of 

the Company’s counsel after Steel delivered its January 28, 2022 notice of intent to 

nominate a slate of directors.

43

The defendants assert that the plaintiffs are adverse to the Company because 

of their alignment with Steel, which they paint as an activist investor engaged in a 

takeover attempt. Yet each of the competing slates includes four incumbent 

directors. One includes the Company’s Executive Chairman and the other its Chief 

(Del. Ch. May 26, 2004) (quoting Pfizer, Inc. v. Warner-Lambert Co., 1999 WL 

33236240, at *1 (Del. Ch. Dec. 8, 1999)). Documents from before October 13, 2021 that 

bear on whether Company resources were misused to advance the interests of half of the 

Board are sufficiently relevant. 

42 In re Howard Midstream Energy P’rs, LLC, 2021 WL 4314111 (Del. Ch. Sept. 22, 

2021).

43 See SBC Interactive, Inc. v. Corp. Media P’rs, 1997 WL 770715, at *6 (Del. Ch.

Dec. 9, 1997) (explaining that a director is normally “entitled to equal access to legal 

advice furnished to the other board members” unless her interests “come into conflict 

with the interests of the corporation on a given issue” and “appropriate governance 

procedures” are employed such that the director no longer has “a reasonable expectation 

that [s]he was a client of the board’s counsel on a par with the remaining directors”). 
C.A. No. 2022-0127-LWW

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Executive Officer. Neither serves as the Company’s slate. Why one slate should 

be considered hostile to the Company and the other friendly is unclear. 

It is obvious that the plaintiffs and defendants have developed some

adversity toward one another. But that adversity is not to the Company. Setting

aside the substance of the investigation, both sets of directors remained entitled to 

rely on the Company’s in-house and outside counsel for legal advice as joint 

clients.

44

44 See Kirby v. Kirby, 1987 WL 14862, at *7 (Del. Ch. July 29, 1987) (“The directors are 

all responsible for the proper management of the corporation, and it seems consistent 

with their joint obligations that they be treated as the ‘joint client’ when legal advice is 

rendered to the corporation through of its officers or directors.”); In re WeWork Litig., 

250 A.3d 901, 910 (Del. Ch. 2020) (“It is because ‘directors are responsible for the 

proper management of the corporation’ that they should ‘be treated as a joint client when 

legal advice is rendered to the corporation through one of its directors or officers.’”

(quoting Kalisman, 2013 WL 1668205, at *4)); Kalisman, 2013 WL 1668205, at *4 

(explaining that a joint client “has a right of equal access to the materials he seeks”—

communications with a common interest between joint counsel and other joint clients—

“in light of his status as a joint client of the subpoenaed law firms”). When former coclients become adverse and “sue one another, the default rule is that all communications 

made in the course of the joint representation are discoverable.” In re Teleglobe 

Commc’ns Corp., 493 F.3d 345, 366 (3d Cir. 2007) (applying Delaware law and citing 

Delaware Rule of Evidence 502(d)(6)); see also In re Sutton, 1996 WL 659002, at *5 

(Del. Super. Aug. 30, 1996) (describing Delaware Rule of Evidence 502(b)(5) as 

“providing that where an attorney jointly represents two clients who later become 

adversarial parties in litigation, one party cannot assert attorney-client privilege to avoid 

disclosure of communications which were made during the joint representation.”); 

Restatement (Third) of the Law Governing Lawyers § 75(2) (Am. Law. Inst. 2022)

(“Unless the co-clients have agreed otherwise, a communication [that otherwise would be 

subject to attorney-client privilege] is not privileged as between the co-clients in a 

subsequent adverse proceeding between them.”).
C.A. No. 2022-0127-LWW

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It would also defy the principles animating 8 Del. C. § 141(a) to find that

half of a board faction can rely on its association with management to benefit from 

the protections of the company’s legal advice to the exclusion of their fellow 

directors. Management of a Delaware corporation cannot unilaterally decide 

which directors will receive which information.45 In In re WeWork, management 

decided to withhold privileged information from a special committee.46 Chancellor 

Bouchard explained that the application of the adversity limitation did not apply 

because “the [corporation’s] governing body—the Board—made no decision to 

withhold the Company’s privileged information.”

47

 

It follows that the defendants’ alignment with Aerojet management cannot

provide them with a greater claim to the Company’s privilege than the plaintiffs.

As this court has previously explained, the defendants cannot “co-opt the

45 Hall v. Search Cap. Grp., Inc., 1996 WL 696921, at *2 (Del. Ch. Nov. 15, 1996)

(explaining that management “cannot pick and choose which directors will receive 

[which] information”); In re WeWork, 250 A.3d at 909 (same).

46 250 A.3d at 909.

47 Id. (quoting Kalisman, 2013 WL 1668205, at *5); see id. at 911 (“[D]irectors of a 

Delaware corporation are presumptively entitled to obtain the corporation’s privileged 

information as a joint client of the corporation and any curtailment of that right cannot be 

imposed unilaterally by corporate management untethered from the oversight and 

ultimate authority of the corporation’s board of directors.”); Rainbow Navigation, Inc. v. 

Yonge, 1988 WL 7389, at *1 (Del. Ch. Jan. 29, 1988) (ordering production of privileged 

communications and documents to both sides during the pendency of a dispute over who 

constituted the board). 
C.A. No. 2022-0127-LWW

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company’s resources” to further a campaign against the plaintiffs’ proxy contest.48

“The privilege exists for the benefit of the corporation—not to any particular 

corporate constituency,” including an individual director.49 

The defendants further contend that the plaintiffs are not entitled to any 

discovery related to Gibson Dunn’s joint representation of Aerojet and the 

defendants in connection with this litigation. That representation was allegedly

entered into because “Aerojet [] agreed to such joint representation.”

50

 

There are several problems with that argument. As an initial matter, it

would only apply after February 11, 2022 (the date the first defendant signed the 

agreement) at the earliest—four days after the plaintiffs’ complaint and TRO 

motion were filed and four days before the TRO was granted.

51 More crucially, 

there is a serious question of who could have validly authorized the joint defense

48 Dkt. 38 at 81. 

49 Ford Smart Mobility, 2021 WL 5226487, at *3; see Cole v. Wilm. Mat’ls, Inc., 1993 

WL 257415, at *1 (Del. Ch. July 1, 1993) (“It is elementary that when they represent a 

corporation, lawyers represent the entity and do not thereby represent any single 

corporate constituency.”); see generally Del. Lawyers’ R. Prof’l. Conduct 1.13.

50 Defs.’ Opp’n Ex. 1.

51 Id. 
C.A. No. 2022-0127-LWW

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agreement on Aerojet’s behalf given the context of the representation and the lack 

of Board approval.

52

But providing the plaintiffs access to advice delivered to both Aerojet and 

the defendants would not constitute a waiver in any event. Again, the plaintiffs—

as incumbent directors—are within the Company’s privilege and have access to 

legal advice rendered to the corporation. The plaintiffs retained the right to the

legal advice Gibson Dunn delivered to the Company at least until the landscape

changed on March 9, 2022, when Gibson Dunn moved for leave to withdraw as 

Aerojet’s counsel. The Delaware Rules of Evidence provide that “no privilege” 

exists for communications “relevant to a matter of common interest between or 

among [two] or more [of a lawyer’s] clients if the communication was made by

any of them to a lawyer retained or consulted in common, when offered in an

action between or among any of the clients.”

53

52 At oral argument, the defendants referred the court to Rainbow Mountain, Inc. v. 

Begeman for the proposition that management could hire corporate counsel without board 

approval. 2019 WL 6724420 (Del. Ch. Dec. 5, 2019). The outcome in that case 

depended on bylaws that explicitly gave the corporation’s president that power, however, 

and no such argument has been made here. Id. at *2; see also Del. Lawyers’ R. Prof’l. 

Conduct 1.13(e) (“A lawyer representing an organization may also represent any of its

directors, officers, employees, members, shareholders or other constituents, subject to the 

provisions of Rule 1.7 [on conflicts of interest]. If the organization’s consent to the dual 

representation is required by Rule 1.7, the consent shall be given by an appropriate 

official of the organization other than the individual who is to be represented, or by the 

shareholders.”).

53 D.R.E. 502(d)(6).
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* * *

For these reasons, the motion to compel is granted. I encourage the parties 

to discuss ways to continue to preserve the Company’s privilege in advance of 

trial. Of course, the parties are bound to treat the information as confidential 

pursuant to their fiduciary duties to Aerojet. But an additional tier to the 

confidentiality order in this case or a proposed order pursuant to Delaware Rule of 

Evidence Rule 510(f) may be useful.

54

 

Sincerely yours,

/s/ Lori W. Will

Lori W. Will

Vice Chancellor

cc: All counsel of record (by File & ServeXpress) 

54 This decision does not resolve Gibson Dunn’s Motion to Quash and For a Protective 

Order, which will be addressed by the court separately. Dkt. 161.