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Managing Corporate Books and Minutes to Protect Privilege: Applying the Garner Test

Implications of Employees' Retirement System of Rhode Island v. Facebook

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, January 12, 2023

Recorded event now available

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This CLE course will advise corporate secretaries, in-house counsel, directors, and other governance professionals in implementing best practices for maintaining corporate books and records to protect privilege in anticipation of shareholder and other litigation. The panel will discuss the recent decision in Delaware on applying the Garner test to corporate records in shareholder litigation. The webinar will offer best practices and critical considerations for boards and their corporate secretaries when developing the agenda for board and committee meetings, compiling and distributing meeting materials, and drafting and maintaining meeting minutes to retain privilege.


The foundation of corporate recordkeeping is the routine minutes and records typically maintained by the corporate secretary. Consider if, in anticipation of an upcoming board meeting, the company's general counsel prepares a report discussing the liability risks of pending litigation and potential exposure. The general counsel distributes the report to the members for their pre-meeting review, the board conducts the meeting, and the minutes reflect the discussion between the members and the lawyer. Six months later, if an event occurs that sparks litigation, then discovery ensues, culminating in a motion to compel production of the general counsel's board report and the board's meeting minutes.

The corporate attorney-client privilege protects from discovery confidential communications between the company and its lawyers made for legal advice purposes. With or without evidence, judges often hold that in-house lawyers engage in business and legal roles in their day-to-day duties. For this reason, courts generally apply heightened scrutiny to the legal advice requirement when the company's communicating counsel is an in-house lawyer. They often require in-house counsel to clearly show, with evidentiary support, that the communication is primarily related to legal advice or the assessment of a legal issue.

A recent shareholder action brought against Facebook considered the extent of exceptions and limits of what the court will recognize as privileged among corporate records and helps identify what practices corporate counsel should adopt as best practices to maintain privilege in corporate records.

Listen as our expert panel discusses the limits of attorney-client privilege when a claim is brought against the company and best practices that corporate counsel should take when maintaining corporate books and records.



  1. General corporate board meeting minutes, agendas, and other written records practice
  2. Employees' Retirement Sys. of Rhode Island v. Facebook Inc.
  3. Garner test
  4. Best practices


The panel will address these and other relevant topics:

  • How can detailed recordkeeping benefit corporate boards of directors? What potential harms arise from detailed records?
  • What are the implications of the decision in Employees' Retirement Sys. of Rhode Island v. Facebook Inc.?
  • What factors in the Garner test should corporate counsel consider in corporate records maintenance?
  • What are the essential document retention strategies to mitigate privilege liability?


Markel, Gregory
Gregory A. Markel

Partner; Co-Head of Securities Litigation
Seyfarth Shaw

Mr. Markel is a nationally known trial lawyer who concentrates his practice on corporate governance litigation, mergers...  |  Read More

Fedner, Sarah
Sarah Fedner

Seyfarth Shaw

Ms. Fedner represents large corporations and individuals in both national and international disputes. She provides...  |  Read More

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