Matter No. 1017-00002
Nadine,
I hope this finds you well. I am writing to set out the privilege log protocol that AGMG should follow in connection with the narrowed document production to Corvus Peak Capital Partners LP. This is a detailed email, but given the stakes, I want to ensure your team has clear, actionable guidance from the outset.
**1. Context**
As you know, Corvus Peak served its books-and-records demand under DGCL § 220 on March 22, 2024, seeking broad access to materials relating to the CEO search committee process. On April 2, Nathaniel Bower sent our formal response letter to Dominic Sayer at Blackthorn Howell & Crane LLP, objecting to the demand's scope on privilege grounds and offering a narrowed production that excludes privileged CEO search materials and attorney-client communications.
AGMG now needs to prepare a privilege log identifying every document being withheld, in whole or in part, from that narrowed production. I cannot overstate the importance of getting this right. If Corvus Peak challenges the withholdings in the Court of Chancery of the State of Delaware — which is the exclusive forum under Section 11.1 of the bylaws — the privilege log will be the first document the court examines. A defensible, thorough, and properly formatted log is essential.
**2. Scope of Documents to Be Logged**
The log must cover all documents responsive to Corvus Peak's § 220 demand that AGMG is withholding in whole or in part on privilege grounds. Specifically, the following categories should be captured:
- Attorney-client communications between the Board or the Special Committee and Calderwood & Harkness LLP (engagement opened March 12, 2024). - Attorney-client communications between AGMG management and Ashworth Velmoran LLP (Martin Cho, standing outside counsel since 2015). - All Calderwood & Harkness memoranda delivered to the Board or the Special Committee (Tobias Kessler, Chair; Lucinda Farrow-Grant; Dr. Anwen Llewellyn), including without limitation the March 25 fiduciary duties memorandum and the March 20 CEO search governance protocols memorandum. - Communications with Hargrove Tate Partners LLC (Christine Aldridge) to the extent they contain or reflect legal advice. **Important caveat**: communications with the search firm that are purely factual or operational in nature (e.g., scheduling, candidate logistics) may not be privileged. These should be flagged separately for C&H review before they are placed on the log. I address this further in Section 6 below. - Special Committee meeting minutes and materials that reflect or incorporate legal advice from counsel. - Internal board deliberations and materials referencing or prepared at the direction of counsel in connection with the CEO succession process. - Draft resolutions prepared by Calderwood & Harkness, including the March 8 Interim CEO designation resolution, the March 18 Special Committee formation resolution, and the March 15 Hargrove Tate engagement resolution.
One additional point: documents generated **before** our engagement (i.e., before March 12) should also be reviewed. Any pre-engagement communications with Ashworth Velmoran regarding the succession process or the activist response are potentially privileged and should be included in the review universe.
**3. Privilege Log Format Requirements**
Each entry on the log must contain the following fields:
1. **Log Entry Number** — Sequential numbering using the format AGMG-PL-001, AGMG-PL-002, etc. 2. **Date** — Date of the document or communication. 3. **Document Type** — E.g., memorandum, email, letter, draft resolution, meeting minutes, presentation. 4. **Author(s)** — Full name and title/role. 5. **Recipient(s)** — Full name and title/role, including all "To" and "Cc" parties. 6. **Description** — A brief, non-waiving description of the document's subject matter. This must be sufficient to allow the court to evaluate the privilege claim without revealing privileged content. Err on the side of specificity — vague descriptions like "communication regarding legal matter" will not withstand scrutiny in Chancery. 7. **Privilege Basis** — One or more of the following: - **Attorney-Client Privilege** — Confidential communication between client and attorney for the purpose of seeking or providing legal advice. - **Work Product Doctrine** — Materials prepared in anticipation of litigation or in connection with providing legal services. Where possible, distinguish between "fact" work product and "opinion" work product, as the latter receives near-absolute protection. - **Joint Defense / Common Interest Privilege** — If applicable to any shared communications. I do not anticipate this will arise here, but note it for completeness. 8. **Withheld in Full / Redacted** — Indicate whether the document is being withheld entirely or produced in redacted form.
Audrey Zhou will forward a sample privilege log template in Excel format under separate cover. Please use that template as your starting framework.
**4. Privilege Basis Categories — Specific Guidance**
A few points of guidance on the substantive privilege determinations:
- **Attorney-Client Privilege**: This will be the core basis for most withholdings. It applies to communications between AGMG directors and officers — including you, Dame Elspeth Greenvale, the Special Committee members, and Priya Nair-Whitfield in her capacity as Interim CEO — and attorneys at Calderwood & Harkness or Ashworth Velmoran, made in confidence for the purpose of obtaining or providing legal advice. Please remind your team that the communication must have been **intended to be confidential** and must not have been shared with third parties outside the scope of the privilege.
- **Work Product Doctrine**: This applies to memoranda, analyses, and draft documents prepared by C&H attorneys (Bower, myself, Zhou, Walsh) in anticipation of the proxy contest litigation or a potential § 220 enforcement action in the Delaware Court of Chancery. Note that the proxy contest itself creates a reasonable anticipation of litigation, so work product protection likely attaches to contest-related analyses and strategy documents as well.
- **Caution on factual/business documents**: Documents that merely transmit factual business information — for example, candidate resumes, Hargrove Tate's initial candidate slate without legal commentary, or scheduling communications — may not qualify for either privilege. These should be segregated and flagged for C&H review before inclusion on the log. Overlogging weakens credibility with the court.
**5. Review Workflow**
I propose the following five-step process:
- **Step 1 — Collection**: Your team should collect all potentially responsive documents from the following custodians: Dame Elspeth Greenvale, Priya Nair-Whitfield, Tobias Kessler, Lucinda Farrow-Grant, Dr. Anwen Llewellyn, Garrett Voss, yourself, and any executive assistants who manage their files or calendars. Also collect from the corporate secretary's files and the board portal.
- **Step 2 — First-Pass Review**: Your team conducts the initial review and separates documents into three categories: - (a) Clearly privileged — withhold; - (b) Clearly non-privileged and responsive — produce per the narrowed scope outlined in the April 2 letter; - (c) Uncertain — flag for C&H review.
- **Step 3 — C&H Second-Pass Review**: Category (c) documents should be forwarded to Audrey Zhou for second-pass review. Audrey will consult with me or Nathaniel as needed on close calls.
- **Step 4 — Final Log Preparation**: C&H will prepare the final privilege log based on the reviewed document set. I will sign off on the final version before it is transmitted to Blackthorn Howell & Crane.
- **Step 5 — Target Completion**: The privilege log should be finalized **no later than April 18, 2024** — two weeks from today. This timeline will allow adequate room for any follow-up from Sayer's team before the proxy contest activity intensifies.
**6. Specific Cautions**
Three items that warrant particular attention:
- **Inadvertent Disclosure**: Any inadvertent production of privileged documents could be seized upon by Corvus Peak as a basis for arguing waiver. Production sets must be reviewed carefully before transmission. I also want to flag that we should have a clawback provision in place. Please check whether the April 2 response letter included a non-waiver/clawback proposal. If it did not, I recommend that AGMG propose a non-waiver agreement with Blackthorn Howell & Crane, modeled on the Delaware Rule of Evidence 502 analog and FRE 502(d), particularly if court involvement arises. I will follow up with Nathaniel on this point.
- **Board-Level Communications Without Counsel**: Please remind the directors and officers involved that emails among directors that do not include counsel and do not reference legal advice are **generally not privileged** merely because they discuss the CEO search. Only communications that reflect, request, or transmit legal advice will qualify. This is a common area where logs are challenged, and we need to be precise.
- **Hargrove Tate Partners Communications**: This requires special attention. Hargrove Tate is not a law firm, and communications with Christine Aldridge are not inherently privileged. However, communications where Hargrove Tate was acting at counsel's direction as part of the legal strategy, or communications between the search firm and C&H or Ashworth Velmoran attorneys, may be protected under the work product doctrine or as the functional equivalent of communications made at the direction of counsel. These are judgment calls. **Please flag all Hargrove Tate communications for C&H review** — do not make independent determinations on these in your first-pass review.
**7. Next Steps**
Please confirm receipt of this email and, when you are able, provide an estimated timeline for completing Step 1 (document collection). I would like to schedule a call early next week — Tuesday or Wednesday — to walk through any questions from your team and ensure we are aligned on the workflow.
Nathaniel is also available if any policy-level questions arise regarding the scope of withholdings or the broader response strategy vis-à-vis Corvus Peak.
Thank you, Nadine. I know this is a significant lift alongside everything else your office is managing right now, and we appreciate the partnership.
Best regards,
Colette Whitman Partner Calderwood & Harkness LLP 787 Seventh Avenue New York, NY 10019 Direct: (212) 555-4871 cwhitman@calderwoodharkness.com
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