Richards Layton & Finger

Who Owns Privileged E-Mails in a §363 Sale Case? Is Ownership Waived When the Debtor's Computer Servers Are Sold?

February 2009

While Postorivo is one of the first cases addressing who owns the privilege in these scenarios, it will not be the last. In a world where 90 percent of the important documents in discovery are electronically stored information, and in an environment where asset sales are far more common than true debt-to-equity reorganizations, this issue undoubtedly will recur. We will have to await further developments in the case law to have certainty on many issues.