|Indiana Electronic Workers Pension Trust Fund (IBEW) is a retirement system that provides benefits to electrical workers in Indiana. IBEW is also a stockholder of Wal-Mart corporation. Wal-Mart de Mexico (WalMex) is a subsidiary of Wal-Mart, in which Wal-Mart owns a controlling interest. In April 2012, The New York Times released an article titled Vast Mexico Bribery Case Hushed Up by Wal-Mart After Top-Level Struggle, which described a scheme of illegal bribery payments to Mexican officials that occurred between 2002-2005, at the direction of the then-director of WalMex. The article showed that Wal-Mart officials knew of the illegal conduct no later than September 2005 and suggested that Wal-Mart’s response was deficient. In June 2012, IBEW sent a letter to Wal-Mart requesting inspection of documents related to the WalMex incident so that the IBEW board could investigate if Wal-Mart had breached fiduciary duty and if a derivative suit was necessary. In August, Wal-Mart complied with IBEW’s request, but most of the documents were highly redacted with no explanation for the redaction. IBEW subsequently filed a complaint with the court of chancery, alleging that certain documents within the scope of the demand had not been produced. After a series of court hearings, the court entered a final order in October 2013. In its final order, the court required Wal-Mart to produce documents protected by attorney-client privilege, as well as other privileged documents, among other kinds of documents. The court also granted the IBEW’s use of whistleblower documents, which IBEW had anonymously received and promptly reported in May 2012. Both parties appealed to the Supreme Court of Delaware; Wal Mart asserted that the court had ordered Wal-Mart to produce documents that far exceeded the scope of the request and IBEW cross-appealed in regards to the whistleblower documents, as well as other assertions. What is the Garner Doctrine as described by the Supreme Court of Delaware, and how is it related to this case? What arguments did Wal-Mart make to assert that IBEW had not met its burden to show it needed the privileged information that IBEW sought? What do you think of Wal-Mart’s arguments? How did the Supreme Court of Delaware decide? [Wal-Mart Stores v. Indian Elec. Workers, 95 A.3d 1264 (2014).]|
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