              IN THE SUPREME COURT OF THE STATE OF DELAWARE

WAL-MART STORES, INC.,                                 §
                                                       §       No. 614, 2013
         Defendant Below,                              §
         Appellant/Cross-Appellee,                     §
                                                       §       Court Below-Court of
         v.                                            §       Chancery of the State of
                                                       §       Delaware
INDIANA ELECTRICAL WORKERS                             §       C.A. No. 7779
PENSION TRUST FUND IBEW,                               §
                                                       §
         Plaintiff Below,                              §
         Appellee/Cross-Appellant                      §

                                    Submitted: July 10, 2014
                                     Decided: July 23, 2014

Before HOLLAND, BERGER, and RIDGELY, Justices and BUTLER and
WALLACE, Judges,1 constituting the Court en Banc.

         Upon appeal from the Court of Chancery. AFFIRMED.

      Donald J. Wolfe, Jr., Esquire, Stephen C. Norman, Esquire, Tyler
Leavengood, Esquire, Potter Anderson & Corroon LLP, Wilmington, Delaware,
Theodore J. Boutrous, Jr., Esquire, Gibson Dunn & Crutcher LLP, Los Angeles,
California, Jonathan C. Dickey, Esquire, Brian M. Lutz, Esquire, Gibson Dunn &
Crutcher LLP, New York, New York, Mark A. Perry, Esquire (argued), Gibson
Dunn & Crutcher LLP, Washington, DC, for appellants.

     Stuart M. Grant, Esquire (argued), Michael J. Barry, Esquire, Nathan A.
Cook, Esquire, Bernard C. Devieux, Esquire, Grant & Eisenhoffer, P.A.,
Wilmington, Delaware, for appellees.




1
    Sitting by designation pursuant to Del. Const. art. IV, § 12 and Supr. Ct. R. 2 and 4.
HOLLAND, Justice:


      The Defendant Below/Appellant-Cross Appellee Wal-Mart Stores, Inc.

(“Wal-Mart” or the “Company”) appeals from a final judgment of the Court of

Chancery identifying specific steps Wal-Mart must take in searching for

documents, and specific categories of documents Wal-Mart must produce, in

response to a demand made by Plaintiff Below/Appellee-Cross Appellant Indiana

Electrical Workers Pension Trust Fund IBEW ( “IBEW” or “Plaintiff”) pursuant to

title 8, section 220 of the Delaware Code.

      The Court of Chancery conducted a Section 220 trial on the papers to

determine whether Wal-Mart had produced all responsive documents in reply to

IBEW’s demand. The Court of Chancery entered a Final Order and Judgment,

which required Wal-Mart to produce a wide variety of additional documents,

including ones whose content is privileged or protected by the work-product

doctrine.

      Wal-Mart appeals the Court of Chancery’s Final Order with regard to its

obligations to provide additional documents. IBEW filed a cross-appeal, arguing

that the Court of Chancery erred in failing to require Wal-Mart to correct the

deficiencies in its previous document productions and in granting in part Wal-

Mart’s motion to strike its use of certain Whistleblower Documents.



                                         2
        We conclude that all of the issues raised in this appeal and cross-appeal are

without merit.       Therefore, the judgment of the Court of Chancery must be

affirmed.

                                           Facts

        IBEW is a retirement system that provides retirement benefits to electrical

workers in Indiana. Wal-Mart is a Delaware corporation that has its headquarters

in Bentonville, Arkansas. Wal-Mart operates stores in 27 different countries and

employs about 2.2 million people worldwide. The Company’s stock is listed on

the NYSE. Wal-Mart de Mexico, S.A. de C.V. (“WalMex”) is a subsidiary of

Wal-Mart in which Wal-Mart owns a controlling interest. WalMex is not a party

to this action. At all times IBEW has been a stockholder of appellant, Wal-Mart.

        On April 21, 2012, The New York Times, in an article titled Vast Mexico

Bribery Case Hushed Up by Wal-Mart After Top-Level Struggle (the “Times

Article”), 2 described a scheme of illegal bribery payments made to Mexican

officials at the direction of then-WalMex CEO, Eduardo Castro-Wright, between

2002 and 2005. The Times Article revealed that Wal-Mart executives were aware

of the conduct no later than September 21, 2005, and suggested that Wal-Mart’s

responses were deficient. IBEW summarized the Times Article in its answering

brief, as follows:


2
    Appendix to Wal-Mart’s Opening Br. at A96-116.
                                             3
       In exchange for the bribes, WalMex received benefits ranging from
       zoning changes to rapid and favorable processing of permits and
       licenses for new stores. The Company was aware of this illegal
       conduct by no later than September 21, 2005, when an executive of
       WalMex, Sergio Cicero Zapata (“Cicero”), informed the general
       counsel of Wal-Mart International, Maritza I. Munich (“Munich”), of
       “‘irregularities’ authorized by ‘the highest levels’ at [WalMex].”

       Munich initiated the investigation (the “WalMex Investigation”), first
       hiring a Mexican attorney to interview Cicero and evaluate his
       allegations, and then working with Willkie Farr & Gallagher LLP
       (“Willkie Farr”) to develop an independent investigation plan. Wal-
       Mart’s senior leadership in the U.S., however, rejected Willkie Farr’s
       November 2005 proposal for a “thorough investigation,” and instead
       chose a “far more limited” internal two-week “Preliminary Inquiry”
       involving Wal-Mart’s Corporate Investigations Department and
       International Internal Audit Services (“IAS”) departments. The
       “Preliminary Inquiry” work-plan provided that, among other things, a
       progress report would be given to Wal-Mart’s management and the
       Chairman of the Audit Committee, Roland Hernandez (“Hernandez”),
       on November 16, 2005.

       Munich kept senior Wal-Mart officials in Arkansas apprised of the
       preliminary inquiry in a series of emails and detailed memoranda. In
       December 2005, an internal Wal-Mart report on the preliminary
       inquiry’s findings was sent to Wal-Mart executives describing
       evidence “corroborat[ing] the hundreds of gestor payments [i.e.,
       payments to ‘fixers’], the mystery codes, the rewritten audits, the
       evasive responses from [WalMex] executives, the donations for
       permits, the evidence gestores [i.e., ‘fixers’] were still being used.”
       The report’s conclusion was grave: “There is reasonable suspicion to
       believe that Mexican and USA laws have been violated.”

       Rather than expand the investigation, Wal-Mart executives chastised
       the investigators for being “overly aggressive . . . .” On February 3,
       2006, Scott3 ordered the prompt development of a “modified
       protocol” for internal investigations. As a result, control over the

3
  H. Lee Scott has been a director of Wal-Mart since 1999, Wal-Mart’s CEO from 2000 to 2009,
and a Wal-Mart executive officer until January 31, 2011.
                                             4
       WalMex Investigation was transferred to “one of its earliest targets,”
       José Luis Rodríguezmacedo, WalMex’s general counsel
       (“Rodríguezmacedo”). Munich complained to senior Wal-Mart
       executives, noting that “[t]he wisdom of assigning any investigative
       role to management of the business unit being investigated escapes
       me,” and resigned from the Company shortly thereafter.
       Rodríguezmacedo quickly cleared himself and his fellow WalMex
       executive of any wrongdoing, “wrapp[ing] up the case in a few weeks,
       with little additional investigation[,]” and concluding that “[t]here is
       no evidence or clear indication of bribes paid to Mexican government
       authorities with the purpose of wrongfully securing any licenses or
       permits.”

       On June 6, 2012, Wal-Mart received a letter from IBEW (the “Demand”).

The letter requested inspection of broad categories of documents relating to the

bribery allegations described in the Times Article (the “WalMex Allegations”).

The purpose of the Demand, as explained in the letter, was to investigate: (1)

mismanagement in connection with the WalMex Allegations; (2) the possibility of

breaches of fiduciary duty by Wal-Mart or WalMex executives in connection with

the bribery allegations; and (3) whether a pre-suit demand on the board would be

futile as part of a derivative suit.

       On June 13, 2012, Wal-Mart responded to the Demand, agreeing, subject to

certain conditions, to make available to IBEW Board materials such as minutes,

agendas, and presentations, relating to the WalMex Allegations, as well as existing

policies relating to Wal-Mart’s Foreign Corrupt Practices Act (“FCPA”)

compliance. Wal-Mart declined to provide documents that it determined were not



                                          5
necessary and essential to the stated purposes in the Demand or that were protected

by the attorney-client privilege and work-product doctrine.

      On August 1, 2012, Wal-Mart produced over 3,000 documents to IBEW,

consisting of: policies relating to FCPA compliance, all Board and Audit

Committee minutes and materials referencing the WalMex Allegations dating back

to when those allegations arose in 2005, and Board and Audit Committee minutes

and materials relating to Wal-Mart’s FCPA policy and compliance program.

However, most of those documents were highly redacted without any explanation

for the redactions.

      On August 13, 2012, IBEW filed a Complaint in the Court of Chancery

pursuant to Section 220, alleging various deficiencies relating to Wal-Mart’s

confidentiality designations and redactions in its production, and asserting that

certain documents falling within the scope of the Demand had not been produced.

In an attempt to satisfy IBEW, Wal-Mart provided an additional production on

August 28, 2012, which included additional documents, less redacted material, and

provided the reasons for the redactions that remained.

      On September 10, 2012, IBEW noticed depositions of certain Wal-Mart

records custodians to gain information about documents that it believed should

have been disclosed. IBEW noticed depositions of a current senior officer, a

former senior officer, and a Rule 30(b)(6) witness. In response, Wal-Mart moved

                                         6
for a protective order, alleging that the deposition notices encompassed virtually

every document that might relate in any way to the WalMex Allegations.

        At an October 12, 2012 hearing, the Court of Chancery granted Wal-Mart’s

motion for a protective order in part and restricted the scope of the depositions

noticed by IBEW. To comply with the Court of Chancery’s October 12 ruling,

Wal-Mart reviewed more than 160,000 documents.          To locate any additional

responsive documents, Wal-Mart also interviewed a number of current and former

employees, officers, and directors, and it searched the data of eleven custodians.

Wal-Mart then provided IBEW with a further supplemental production and an

updated privilege log. On December 6, 2012, IBEW conducted a Rule 30(b)(6)

deposition.

        Months earlier, in May 2012, IBEW’s counsel received an anonymous

package containing high-level Wal-Mart documents that were mentioned in the

Times Article and pertained to the WalMex Investigation (the “Whistleblower

Documents”). Pursuant to the ethics rules, IBEW’s counsel immediately notified

Wal-Mart’s counsel, who stated that the documents were stolen by a former

employee.      Wal-Mart took no other action regarding the Whistleblower

Documents, but moved to strike the documents and prevent IBEW from using

them.




                                        7
         IBEW advised the Court of Chancery that Wal-Mart’s document production

did not comply with its October 12 ruling. The parties agreed to conduct a Section

220 trial on the basis of a paper record. The sole issue presented for judicial

determination was whether Wal-Mart had produced all of the documents that were

responsive to IBEW’s Demand.

                                     Final Order

         On May 20, 2013, the Court of Chancery heard oral argument and ordered

Wal-Mart to produce all documents in the custody of eleven custodians whose data

Wal-Mart had previously searched relating to (1) the WalMex Allegations, (2)

policies and procedures regarding FCPA compliance, and (3) policies and

procedures relating to internal investigations. The Court of Chancery’s ruling also

required Wal-Mart to produce documents in the files of Roland A. Hernandez, a

former director and former Chairman of Wal-Mart’s Audit Committee.              In

addition, the Court of Chancery ordered Wal-Mart to search the files of any person

who served as an assistant to any of the twelve custodians. The Court of Chancery

further held that IBEW was entitled to documents protected by the attorney-client

privilege, invoking the exception articulated in Garner v. Wolfinbarger4 (the

“Garner doctrine”). The Court of Chancery also ordered Wal-Mart to produce

documents protected by the attorney work-product doctrine.


4
    430 F.2d 1093 (5th Cir. 1970).
                                         8
         At a June 4, 2013 hearing on the parties’ competing forms of order, the court

also addressed IBEW’s request for production of documents from Wal-Mart’s

disaster recovery (or “backup”) tapes, which was made for the first time at the June

4 hearing.

         On October 15, 2013, the Court of Chancery entered the Final Order and

Judgment.5 The Final Order requires Wal-Mart to produce: (1) officer (and lower)-

level documents regardless of whether they were ever provided to Wal-Mart’s

Board of Directors or any committee thereof; (2) documents spanning a seven-year

period and extending well after the timeframe at issue; (3) documents from disaster

recovery tapes; and (4) any additional responsive documents “known to exist” by

the undefined “Office of the General Counsel.” The Final Order also requires the

production of, among other things, “contents of Responsive Documents that are

protected by the attorney-client privilege . . . and the contents that are protected by

the attorney work-product doctrine under Court of Chancery Rule 26(b)(3),” but

subject to the condition that IBEW “take appropriate steps to protect the

confidentiality of [Wal-Mart’s] privileged documents, including filing and

maintaining any such document as confidential.” 6




5
    Ex. A to Wal-Mart’s Opening Br. at *5 [hereinafter Final Order].
6
  Del. Code Ann. tit. 8, § 220(c) (2014) (“The Court [of Chancery] may, in its discretion,
prescribe any limitations or conditions with reference to the inspection.”).
                                                 9
      The Court of Chancery also granted Wal-Mart’s motion to strike IBEW’s

use of the Whistleblower Documents in part, allowing IBEW only to use those

documents that were posted on The New York Times website or to the

congressional website, or referenced in Wal-Mart’s public filings. The Court of

Chancery ruled that IBEW’s request for Wal-Mart to correct the deficiencies in its

previous productions had been waived.

                               Parties’ Contentions

      In its appeal, Wal-Mart contends that the Court of Chancery erred in

ordering Wal-Mart to produce documents that “far exceed” the proper scope of a

Section 220 request. Wal-Mart cites four ways in which the Court of Chancery’s

Final Order is beyond the proper scope of a Section 220 proceeding: first, it

requires Wal-Mart to produce officer-level documents; second, it requires Wal-

Mart to produce documents spanning a seven-year period, which is longer than the

period in which the wrongdoing is alleged to have occurred; third, it requires Wal-

Mart to search disaster recovery tapes for data from two custodians; and fourth, it

requires Wal-Mart to produce documents “known to exist” by Wal-Mart’s Office

of the General Counsel.

      Wal-Mart further submits that the Court of Chancery improperly and

incorrectly applied the Garner doctrine to documents that it asserts are protected

by the attorney-client privilege. Additionally, Wal-Mart contends that the Court of

                                        10
Chancery erred by improperly applying the Garner doctrine to other documents

that Wal-Mart asserts constitute protected attorney work product.

       In its cross-appeal, IBEW argues that the Court of Chancery erred by not

ordering Wal-Mart to correct deficiencies in its search for, and collection of, books

and records. The Court of Chancery held that IBEW waived this argument. IBEW

submits, however, that because there was no prejudice to Wal-Mart, the issue

should be decided on the merits.

       In its cross-appeal, IBEW also contends that the Court of Chancery’s

conclusion that the Whistleblower Documents are subject to conversion is not

supported by the record. According to IBEW, Wal-Mart bore the burden of proof

on this conversion theory and did not provide the Court of Chancery with any

record to support its ruling. IBEW argues that the Court of Chancery’s inference

that because the Whistleblower Documents were sent anonymously, the individual

must have stolen them, is unsupported by the record.

                                   Standard of Review

       Wal-Mart does not dispute that the Court of Chancery recognized that the

proper standard to be applied to Section 220 actions is “necessary and essential.” 7




7
  Saito v. McKesson HBOC, Inc., 806 A.2d 113, 116 (Del. 2002) (quoting Del. Code Ann. tit. 8,
§ 220(b)).

                                             11
Wal-Mart also does not dispute that IBEW stated at least one proper purpose.8

However, Wal-Mart challenges the scope of the Final Order directing Wal-Mart to

take specific steps to search for and to produce documents responsive to the

Demand. According to Wal-Mart, IBEW failed to meet its burden of showing that

the scope of production ordered by the Court of Chancery was “necessary and

essential” to IBEW’s proper purposes and that the Final Order provides IBEW

with the type of discovery that is reserved for plenary proceedings.

          Documents are “necessary and essential” pursuant to a Section 220 demand

if they address the “crux of the shareholder’s purpose” and if that information “is

unavailable from another source.”9               Whether documents are necessary and

essential “is fact specific and will necessarily depend on the context in which the

shareholder’s inspection demand arises.”10

          The plain language of Section 220(c) provides that “[t]he Court [of

Chancery] may, in its discretion, prescribe any limitations or conditions with

reference to the inspection.” 11          Accordingly, this Court reviews the Court of


8
   See, e.g., Appendix to Wal-Mart’s Opening Br. at A297 (“The only issue in dispute in this case
is the extent of the corporate books and records to which Plaintiff is entitled and whether it
extends beyond those documents the Company has already provided.”).
9
     Espinoza v. Hewlett-Packard Co., 32 A.3d 365, 371-72 (Del. 2011).
10
     Id. at 372.
11
     Del. Code Ann. tit. 8, § 220(c) (2014) (emphasis added).

                                                 12
Chancery’s “determination of the scope of relief available in a Section 220 books

and records action for abuse of discretion.”12 The standard of review this Court

applies to the Court of Chancery’s exercise of statutorily conferred discretion is

highly deferential. 13 However, questions of law, such as the applicability of the

attorney-client privilege and the work-product doctrine, are reviewed de novo.14

                                  Officer-Level Documents

         Wal-Mart argues that the Court of Chancery abused its discretion and

committed legal error by requiring it “to produce documents that were never

presented to or created by members of [Wal-Mart’s] Board of Directors” and by

creating a “presumption” that “officer-level knowledge should be imputed

wholesale to the Board.” These arguments are not supported by the record for two

reasons: first, IBEW’s Demand had three proper purposes; and second, the Court

of Chancery’s ruling did not create a presumption.



12
   Espinoza, 32 A.3d at 371; see also Security First Corp. v. U.S. Die Casting and Dev. Co.,
687 A.2d 563, 569 (Del. 1997).
13
    See, e.g., Remco Ins. Co. v. State Ins. Dep’t., 519 A.2d 633, 637-38 (Del. 1986) (“In view of
the established facts and because it is the Court of Chancery in which the statute [18 Del. C. §
5905] vests discretion, this Court will not attempt to substitute its own notions on the matter for
those carefully articulated by the Court of Chancery.”) (citing Chavin v. Cope, 243 A.2d 694
(Del. 1968)). See also Chavin, 243 A.2d at 695 (“When an act of judicial discretion is under
review the reviewing court may not substitute its own notions of what is right for those of the
trial judge, if his judgment was based upon conscience and reason, as opposed to capriciousness
or arbitrariness.”).
14
     Espinoza, 32 A.3d at 371.

                                                13
         Wal-Mart contends that it is “undisputed that the purpose of IBEW’s

inspection here is limited to determining whether demand on the current Board

with respect to the WalMex Allegations would be futile” and that, accordingly,

officer-level documents are not “necessary and essential to [IBEW’s] stated

purpose.” The Court of Chancery acknowledged that the purpose of IBEW’s

Demand “was primarily to look for facts to determine whether demand is, in fact,

excused.”15       However, the other stated purposes of IBEW’s Demand were to

investigate the underlying bribery and how the ensuing investigation was handled.

         The Court of Chancery acknowledged these other purposes. In its bench

ruling ordering Wal-Mart to produce documents, the Court of Chancery explained

that this information could be used for two purposes:

         [T]he core information that the petitioners probably most legitimately
         need in order to plead demand excusal or—and I want to be very clear
         about this—or to conclude that the appropriate action is an actual very
         strongly written demand, that why are these seven people still
         compliance people at Wal-Mart or in executive positions when they
         knew material information about legal violations, which they
         apparently did not share with higher-ups, and deprived the board of its
         ability to take effective remedial action to protect the company’s
         reputation and interests?16

As the Court of Chancery explained:




15
     Appendix to Wal-Mart’s Opening Br. at A512.
16
     Id. at A609-10.

                                             14
         I believe . . . that core information regarding the WalMex bribery,
         construction-permitting situation and how it was handled within Wal-
         Mart by high-level officers and directors, that information about that
         is essentially central to the plaintiff’s request. That is the wrongdoing
         they’re dealing with, is did Wal-Mart deal appropriately with that?
         Did Wal-Mart have effective internal controls to address situations
         like that and did it take appropriate remedial action when it was faced
         with that?17

In fact, Wal-Mart’s Opening Brief to this Court states that “the plaintiff’s Section

220 purpose was to investigate allegations in [The] New York Times concerning

corrupt payments supposedly made by WalMex employees in Mexico, and how

Wal-Mart investigated those allegations.” Therefore, Wal-Mart’s argument that

officer-level documents are not “necessary and essential” to one of IBEW’s three

proper purposes is not supported by the record.

         Moreover, Wal-Mart does not dispute that key officers were involved in the

WalMex Investigation. Accordingly, officer-level documents are necessary and

essential to determining whether and to what extent mismanagement occurred and

what information was transmitted to Wal-Mart’s directors and officers.18                       In

McKesson Corp. v. Saito,19 this Court affirmed a Court of Chancery ruling that

permitted inspection of officer-level documents.             In doing so, we noted that


17
     Id. at A582-83.
18
     See Saito v. McKesson HBOC, Inc., 806 A.2d 113, 118 (Del. 2002).
19
   818 A.2d 970 (Del. 2003) (Table) (affirming a Court of Chancery opinion that required the
disclosure of officer-level documents).

                                              15
“generally, the source of the documents in a corporation’s possession should not

control a stockholder’s right to inspection under § 220.”20

         Wal-Mart acknowledges officer-level documents that “refer[ ] to

communications with members of the Board” regarding the WalMex Investigation

are necessary and essential to the demand futility inquiry. However, the Court of

Chancery’s ruling was not limited to officer-level communications with directors.

The Court of Chancery held that officer-level documents from which director

awareness of the WalMex Investigation may be inferred are also necessary and

essential to IBEW’s Demand and must be produced.

         Wal-Mart argues that the Court of Chancery erred by adopting a

presumption that “officer-level knowledge should be imputed wholesale to the

Board.” The record reflects that the Court of Chancery did not adopt such a

presumption.        The Court of Chancery held that officer-level documents are

necessary to Plaintiff’s inspection because Plaintiff may establish director

knowledge of the WalMex Investigation by establishing that certain Wal-Mart

officers were in a “reporting relationship” to Wal-Mart directors, that those officers

did in fact report to specific directors, and that those officers received key

information regarding the WalMex Investigation.




20
     Saito, 806 A.2d at 118.
                                         16
      The Court of Chancery concluded that the reasonable inference from such

facts would be that those officers passed the information on to the directors. The

Court of Chancery’s acknowledgment that a reasonable inference can be

established by circumstantial evidence is not the functional equivalent of creating a

presumption. The record reflects that the Court of Chancery properly exercised its

discretion in ordering Wal-Mart to produce certain officer-level documents.

                           Relevant Dates for Production

      Wal-Mart asserts that the Court of Chancery abused its discretion with

respect to the date range of production required by the Final Order. The Demand

identified the relevant time period as “September 1, 2005 to the present.” Wal-

Mart did not object to this time period in responding to the Demand and, in fact,

agreed that it was appropriate:

      The Company believes that board minutes and agendas and Company
      policies regarding compliance with the Foreign Corrupt Practices Act,
      for the period of 2005 to the present, satisfy the necessary and
      essential requirement imposed by Section 220 and is therefore willing
      to produce them to your client.21

Consistent with this representation, Wal-Mart then produced documents to IBEW

dated into 2012. However, at trial and in its September 2013 proposed final order,

Wal-Mart sought to limit the relevant time period at December 31, 2010. IBEW

argues that:

21
   Appendix to IBEW’s Answering Br. on Appeal/Opening Br. on Cross-Appeal at B35-36
(emphasis added).
                                          17
       a key category of responsive documents essential to Plaintiff’s proper
       purpose are documents concerning the Company’s ongoing
       compliance activities and changes to its operative compliance
       procedures, such as changes to the Audit Committee’s charter. These
       documents, including documents reflecting changes in the wake of the
       WalMex Investigation, will bear on director and officer knowledge of
       the investigation, and thus liability. Indeed, Wal-Mart’s privilege log
       confirms that responsive documents exist from September 2005
       through at least May 2012.

The Court of Chancery agreed with IBEW’s argument and found that it was

supported by the record. We agree. Therefore, we hold that the Court of Chancery

properly exercised its discretion in setting the range of dates for production.

                   Disaster Recovery Tapes for Two Custodians

       Wal-Mart argues that the Court of Chancery abused its discretion and

“committed legal error in requiring the Company to collect and search the data

from disaster recovery tapes for two additional custodians, or to explain why such

collection would not be feasible.” Some of the events relating to the WalMex

Investigation occurred over seven years ago. The record reflects that Wal-Mart

voluntarily collected disaster tape recovery data for nine custodians but not for the

two custodians at issue.

       IBEW argues that by collecting backup data for nine custodians, Wal-Mart

implicitly recognizes that it may be a source of responsive documents. The Final

Order requires Wal-Mart to search this data for two additional custodians or, “[i]f

it is not feasible . . . provide a detailed explanation for this inability to collect [the]

                                            18
data.”22 The record reflects that the Court of Chancery properly exercised its

discretion with regard to the production of disaster recovery tapes for the two

additional custodians.

                              General Counsel Documents

         Wal-Mart contends that the Court of Chancery committed legal error by

ordering the production of documents “known to exist by . . . the Office of the

General Counsel of Wal-Mart.”23 According to Wal-Mart, the requirement that

Wal-Mart produce documents “known to exist by” that undefined and unidentified

“Office” is vague and ambiguous. In addition, Wal-Mart submits “this type of

sweeping, indiscriminate production order flies in the face of Section 220’s

mandate that the Court of Chancery narrowly circumscribe Section 220 relief to

serve only the plaintiff’s stated purpose.” Accordingly, Wal-Mart asserts that the

Court of Chancery’s Final Order, with respect to the Office of the General

Counsel, lacks the requisite “precision.”24

         The record reflects that Wal-Mart’s proposed order stated, “Defendant shall

produce or log on its privilege log 1) all Relevant Data of the Identified Sources

and 2) all Relevant Data of which its Litigation Counsel or its in-house counsel

22
     Appendix to Wal-Mart’s Opening Br. at A727.
23
     Final Order at *3.
24
  See Espinoza v. Hewlett-Packard Co., 32 A.3d 365, 372 (Del. 2011); Sec. First Corp. v. U.S.
Die Casting and Dev. Co., 687 A.2d 563, 570 (Del. 1997).

                                             19
charged with responding to the Demand are aware, regardless of how such

Relevant Data was identified.”25 The term “Office of the General Counsel” in the

Final Order replaced the “in-house counsel” term used by Wal-Mart in its proposed

order.     Wal-Mart contends the term “the Office of the General Counsel” is

ambiguous.

         In Saito, this Court affirmed the Court of Chancery’s use of descriptive

terminology, such as “representatives,” “management,” “employees,” and

“advisors.”26 Therefore, the Court of Chancery did not abuse its discretion by

ordering the descriptive production of responsive documents “known to exist

by . . . the Office of the General Counsel . . . .” The appropriate forum for relief

from an allegedly ambiguous term is in the Court of Chancery by filing a motion

for clarification.27

                                 Garner Doctrine Adopted

         In this appeal, Wal-Mart raises two arguments regarding the Garner doctrine

that it did not present to the Court of Chancery. First, Wal-Mart submits that the


25
     Appendix to Wal-Mart’s Opening Br. at A717.
26
     See Saito v. McKesson HBOC, Inc., 806 A.2d 113 (Del. 2002).
27
  See, e.g., New Castle County v. Pike Creek Recreational Services, LLC, 2013 WL 6904387, at
*2 (Del. Ch. Dec. 30, 2013) (“A motion for clarification may be granted where the meaning of
what the Court has written is unclear.”); Naughty Monkey LLC v. MarineMax Northeast LLC,
2011 WL 684626, at *1 (Del Ch. Feb. 17, 2011) (same).


                                              20
Garner doctrine has never been adopted by this Court and therefore the availability

of the Garner doctrine to litigants in Delaware is an open question. Second, Wal-

Mart contends that, regardless of whether the Garner doctrine is generally

available to litigants in a plenary proceeding, the doctrine should not be available

to stockholders in the context of Section 220 litigation.

         These two arguments are new to this litigation, neither having been

presented to the Court of Chancery. Below, Wal-Mart argued only that IBEW had

not shown “good cause” as required by the factors set forth in the Garner

decision.28 Although Wal-Mart failed to preserve either of its Garner arguments

for appeal, “when the interests of justice so require, [this] Court may consider and

determine any question not” presented to the trial court. 29 We have determined

that the interests of justice require this Court to consider both of Wal-Mart’s

Garner arguments.

         In Garner v. Wolfinbarger,30 the Fifth Circuit Court of Appeals recognized a

fiduciary exception to the attorney-client privilege when it held:

         The attorney-client privilege still has viability for the corporate client.
         The corporation is not barred from asserting it merely because those
         demanding information enjoy the status of stockholders. But where
         the corporation is in suit against its stockholders on charges of acting
28
     See Appendix to Wal-Mart’s Opening Br. at A332-40.
29
     Supr. Ct. R. 8.
30
     430 F.2d 1093 (5th Cir. 1970).

                                             21
         inimically to stockholder interests, protection of those interests as well
         as those of the corporation and of the public require that the
         availability of the privilege be subject to the right of the stockholders
         to show cause why it should not be invoked in the particular
         instance. 31

The Fifth Circuit then listed several factors that should be considered when

evaluating whether the plaintiff has met its “good cause” burden. 32 Thus, the

Garner holding allows stockholders of a corporation to invade the corporation’s

attorney-client privilege in order to prove fiduciary breaches by those in control of

the corporation upon showing good cause.

         The Court of Chancery relied on the fiduciary exception to attorney-client

privilege described in Garner to require the production of certain documents by

Wal-Mart. In the trial transcript the Court of Chancery stated:




31
     Id. at 1103-04.
32
     The Fifth Circuit listed the following factors as relevant to the good cause inquiry:

         There are many indicia that may contribute to a decision of presence or absence of
         good cause, among them the number of shareholders and the percentage of stock
         they represent; the bona fides of the shareholders; the nature of the shareholders’
         claim and whether it is obviously colorable; the apparent necessity or desirability
         of the shareholders having the information and the availability of it from other
         sources; whether, if the shareholders’ claim is of wrongful action by the
         corporation, it is of action criminal, or illegal but not criminal, or of doubtful
         legality; whether the communication is of advice concerning the litigation itself;
         the extent to which the communication is identified versus the extent to which the
         shareholders are blindly fishing; the risk of revelation of trade secrets or other
         information in whose confidentiality the corporation has an interest for
         independent reasons.

Id. at 1104.
                                                  22
         And under Garner, to me, it’s a classic application of Garner, because
         it’s a situation where, you know, has there been—I think the
         shareholders—and I take them—given their role in the thing, I think
         they’ve got enough skin in the game to qualify under Garner.

          ....

         So for the documents for which attorney-client solely has been sought,
         I’m ordering their production under Garner.33

         Wal-Mart argues that the Court of Chancery erred in applying the Garner

doctrine because this Court has never endorsed the doctrine in a plenary

proceeding, much less in a summary Section 220 proceeding. This Court has, on

two occasions, tacitly endorsed, in dicta, the Garner doctrine. Two decades ago, in

Zirn v. VLI Corp.,34 this Court acknowledged that the attorney-client privilege “is

not absolute and, if the legal advice relates to a matter which becomes the subject

of a suit by a shareholder against the corporation, the invocation of privilege may

be restricted or denied entirely.”35 Our decision in Zirn specifically cited the Court

of Chancery’s application of the Garner doctrine requiring “good cause” for the

disclosure of privileged communications and explained that this Court “[did] not

share the [Court of Chancery’s] conclusion that there was no showing of good




33
     Appendix to Wal-Mart’s Opening Br. at A586-89.
34
     621 A.2d 773 (Del. 1993).
35
     Id. at 781 (citing Valente v. Pepsico, Inc., 68 F.R.D. 361 (D. Del. 1975)).

                                                  23
cause based on direct conflict of interest . . . .”36 Nevertheless, in Zirn, this Court

did not ultimately rely on the Garner doctrine in concluding that the privilege was

waived through partial disclosure. 37

           In the context of a Section 220 action in Espinoza v. Hewlett-Packard Co.,38

this Court was presented with the question of the applicability of the Garner

doctrine, but did not reach that issue.          In Espinoza, we ultimately cited the

plaintiff’s failure to show that the documents requested were “essential” to his

proper purpose as the reason for affirming the Court of Chancery’s ruling, rather

than the applicability of Garner. This Court explained: “The ‘essentiality’ inquiry

should logically precede any privilege or work product inquiry, because the former

inquiry is dispositive of a predicate question—the scope of inspection relief to

which a plaintiff is entitled under § 220.”39

           Thus, Garner still has not been explicitly adopted by this Court in the

context of either a plenary proceeding or a Section 220 action. On at least three

occasions, however, the Court of Chancery has expressly adopted Garner as a

valid exception to attorney-client privilege in the context of Section 220 books and


36
     Id.
37
     See id. at 781-82.
38
     32 A.3d 365 (Del. 2011).
39
     Id. at 374.

                                            24
records actions.40      Of particular relevance is Grimes v. DSC Communications

Corp.,41 where the Court of Chancery relied on the Garner doctrine to compel the

production of documents in a Section 220 action, despite “the different posture of

[the] action from those in which courts normally analyze whether to invoke the

exception to application of the attorney-client privilege.” 42 In Grimes, the Court of

Chancery explained why its use of Garner was appropriate in the Section 220

demand context as follows:

         In the present action, the plaintiff seeks access to DSC’s books and
         records in order to determine whether the board wrongfully refused
         his demand, and if so to assist him in meeting the particularized
         pleading requirements of Rule 23.1. Plaintiff is looking down the
         road to a demand-refused case where the focus will be on whether or
         not he can establish sufficient facts to overcome the decision made by
         the Special Committee and the board of directors in rejecting his
         demand. Thus, while as of yet no action has been filed, the current
         posture of the case contemplates the possible filing of a derivative suit
         sometime in the future. Thus, it is appropriate to analyze whether the
         plaintiff has demonstrated “good cause” under the factors set forth in
         Garner.43



40
   See Khanna v. Covad Communications Group, Inc., 2004 WL 187274, at *7 (Del. Ch. Jan. 23,
2004) (discussing Garner and Grimes for the various factors to consider under the court’s “good
cause” analysis in a Section 220 action); Saito v. McKesson HBOC, Inc., 2002 WL 31657622, at
*12-13 (Del. Ch. Nov. 13, 2002) (applying the Garner factors for “good cause” in a Section 220
books and records proceeding); Grimes v. DSC Communications Corp., 724 A.2d 561, 568-69
(Del. Ch. 1998) (same).
41
     724 A.2d 561 (Del. Ch. 1998).
42
     Id. at 568.
43
     Id. at 568-69.

                                              25
           In Grimes, the Court of Chancery then applied the Garner factors and

concluded that the plaintiff had demonstrated “good cause” and was entitled to

receive the disputed documents as part of its Section 220 books and records

demand.44 In summarizing its conclusion, the Court of Chancery in Grimes noted,

“[o]f particular import is the fact that the documents sought are unavailable from

any other source while at the same time their production is integral to the

plaintiff’s ability to assess whether the board wrongfully refused his demand—the

stated purpose of his Section 220 demand.”45

           The attorney-client privilege can be traced back to Roman times and is the

oldest privilege recognized by Anglo-American jurisprudence.46 Delaware courts

have agreed with the United States Supreme Court’s characterization of the

attorney-client privilege as “critical”            to “encourag[ing] full and frank

communication between attorneys and their clients and thereby promot[ing]

broader public interests in the observance of law and administration of justice,”

including where the client is a corporation. 47 Accordingly, the Garner doctrine


44
     Id. at 569.
45
     Id.
46
   See 8 John Henry Wigmore, Evidence in Trials at Common Law § 2290 (McNaughton rev.
ed. 1961); see also Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
47
  In re Lyle, 74 A.3d 654 (Del. 2013) (Table); see also Zirn v. VLI Corp., 621 A.2d 773, 781
(Del. 1993) (quoting Upjohn, 449 U.S. at 389); Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992);
Deutsch v. Cogan, 580 A.2d 100, 104 (Del. 1990).
                                              26
fiduciary exception to the attorney-client privilege is narrow, exacting, and

intended to be very difficult to satisfy. It achieves a proper balance between

legitimate competing interests.

         We hold that the Garner doctrine should be applied in plenary

stockholder/corporation proceedings.48 We also hold that the Garner doctrine is

applicable in a Section 220 action. However, in a Section 220 proceeding, the

necessary and essential inquiry must precede any privilege inquiry because the

necessary and essential inquiry is dispositive of the threshold question—the scope

of document production to which the plaintiff is entitled under Section 220. 49

                                Garner Doctrine Properly Applied

         Wal-Mart contends that the Court of Chancery erred in holding that IBEW

met its burden of showing the predicate necessity of the privileged information

sought.      The record reflects that IBEW’s proper purposes sought information

regarding the handling of the WalMex Investigation, whether a cover-up took

place, and what details were shared with the Wal-Mart Board. The Court of

Chancery explained that the documents IBEW sought under Garner “go to those

issues”:




48
     See Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970).
49
     Espinoza v. Hewlett-Packard Co., 32 A.3d 365, 374 (Del. 2011).

                                                27
           There is evidence in this record of indications within Wal-Mart itself
           by internal audit and legal staff of Wal-Mart policies, to not entrust
           investigations to the business unit being investigated; indications of
           concern about entrusting the investigation to people within the legal
           department at WalMex, who are actually subjects of the investigation,
           or should have been subjects; indications when their reports came
           back from WalMex that this wasn’t really a good-looking report,
           didn’t seem up to snuff, and yet nothing being done to remedy it. 50

           After finding that the privileged documents were necessary and essential to

IBEW’s proper purposes, the Court of Chancery considered the panoply of factors

set forth in Garner in determining whether good cause existed to order the

privileged documents to be produced. The Court of Chancery began by examining

whether IBEW had demonstrated a colorable claim against Wal-Mart and whether

the information was available via other means at this point in the litigation. The

Court of Chancery concluded that a colorable claim existed based on “Wal-Mart’s

own public statements about this [which] suggest that there were some real

concerns about what was going on in Mexico and whether it was legal.” 51 As for

the availability of the information from other, non-privileged sources, the Court of

Chancery concluded:

           [I]n a circumstance where judgments were made, which appear to be
           at odds with Wal-Mart’s own internal documents in terms of how you
           go about things, about avoiding going to the head of a business unit—
           as I said, this is just not a situation where they did something internal.

50
     Appendix to Wal-Mart’s Opening Br. at A586.
51
     Id.

                                              28
          ....

         There wasn’t a way to do it without outside counsel that doesn’t
         involve having the business unit itself do the investigation. I don’t
         understand how you would probe these decisions through other
         means.

          ....

         [B]ut where there is a colorable basis that part of the wrongdoing was
         in the way the investigation itself was conducted, I think it’s very
         difficult to find those documents by other means. 52

         Wal-Mart argues that the Court of Chancery “misconstrued Garner’s

‘necessity’ factor . . . .” Wal-Mart asserts that the Court of Chancery “merely

found that [Plaintiff’s] task would be made ‘more difficult’ without the production

of such privileged documents.”         Wal-Mart’s support for this assertion is one

sentence where the Court of Chancery stated that, “where there’s a colorable basis

that part of the wrongdoing was in the way the investigation itself was conducted, I

think it’s very difficult to find those documents by other means.” However, the

entire ruling reflects that the Court of Chancery found IBEW demonstrated that the

privileged information sought was “necessary and essential” to one of its proper

purposes:

         I’m going to start with what would ordinarily, I think, be . . . the more
         sensitive ruling, which is the documents which are actually on the
         privilege log.

52
     Id. at A588-89.

                                            29
         In my view, in terms of this 220 action . . . whether these are
         necessary to the plaintiff’s purpose and not tangential—that’s how I
         read “necessary and essential.” Necessary and essential, I think just
         emphasizes because they’re redundant. I mean, usually if something
         is necessary, I suppose it’s usually essential. But my sense is it’s
         saying is this the core stuff? Is this out there? 53

         Wal-Mart argues that the Court of Chancery “committed legal error by

expressly conflating” the Section 220 necessary and essential standard and the

Garner good cause standard. In fact, however, the Court of Chancery properly

first made the predicate Section 220 finding that the privileged information was

necessary and essential before it then applied the Garner doctrine and found that

IBEW had demonstrated good cause. This paradigm was exactly in accordance

with our holding in Espinoza.

         Garner also directs a trial judge to analyze “whether the communication is

of advice concerning the litigation itself; [and] the extent to which the

communication is identified versus the extent to which the shareholders are blindly

fishing.”54 The Court of Chancery addressed these factors, as follows:

         And I think the information is particularized. It’s not just a broad
         fishing expedition. There are specific documents. And whether the
         communication is advice concerning the litigation itself, no, this is not
         after those litigations. So I don’t think it’s trying to get into anybody


53
     Id. at A582 (emphasis added).
54
     Garner, 430 F.2d at 1104.

                                            30
         how to defend against what the plaintiffs are doing. This is during the
         real-time of Wal-Mart dealing with this thing. 55

         With regard to the other Garner good cause factors, the record reflects that

disclosure of the material would not risk the revelation of trade secrets (at least it

has not been argued by Wal-Mart); the allegations at issue implicate criminal

conduct under the FCPA; and IBEW is a legitimate stockholder as a pension fund.

Accordingly, the record supports the Court of Chancery’s conclusion that the

documentary information sought in the Demand should be produced by Wal-Mart

pursuant to the Garner fiduciary exception to the attorney-client privilege.

                               Work-Product Documents

         Wal-Mart withheld certain documents based on the work-product doctrine,

to which the Court of Chancery responded:

         The work product documents fall out the same way, because the
         core—you know you have to have this heightened need. Are they
         really important and urgent to what you’re trying to get at and then the
         unavailability showing as core to that. For the same reason I
         mentioned with respect to Garner, I believe the work product doctrine
         documents also have to give way.56
         Wal-Mart argues that the Court of Chancery committed legal error by

purportedly applying the Garner doctrine to documents over which Wal-Mart

invoked the work-product doctrine. The Garner doctrine applies to information


55
     Appendix to Wal-Mart’s Opening Br. at A587.
56
     Id. at A590.

                                             31
protected by the attorney-client privilege, but not to work product.57            Instead,

pursuant to Court of Chancery Rule 26(b)(3), a party may obtain access to non-

opinion work product “upon a showing that the party seeking discovery has

substantial need of the materials in the preparation of the party’s case and that the

party is unable without undue hardship to obtain the substantial equivalent of the

materials by other means.”58

         Wal-Mart asserts that the Court of Chancery erroneously applied Garner,

rather than Court of Chancery Rule 26(b)(3), to the work-product issue. A careful

reading of the Garner factors demonstrates that they overlap with the required

showing under the Rule 26(b)(3) work-product doctrine. One factor under Garner

is “the apparent necessity or desirability of the shareholders having the information

and the availability of it from other sources.”59 In fact, this Court has utilized the

Garner factors in the context of a work-product analysis in the past. 60 When

addressing the defendant’s work-product argument in Zirn v. VLI Corp., this Court

stated:



57
  Saito v. McKesson HBOC, Inc., 2002 WL 31657622, at *11 (Del. Ch. Oct. 25, 2002) (“this
Court has held that there is no Garner exception to the work product privilege.”).
58
     Ct. Ch. R. 26(b)(3).
59
     Garner, 430 F.2d at 1104.
60
     See Zirn v. VLI Corp., 621 A.2d 773 (Del. 1993).

                                                32
         [We] are satisfied that Zirn has demonstrated “good cause” for
         production of documents prepared in anticipation of the patent
         litigation. Of the factors set forth in Garner v. Wolfinbarger, which
         support the requisite showing of “good cause” that a shareholder must
         demonstrate to overcome a corporation’s claim of privilege, the
         following appear present here.61

         The Court of Chancery in this case recognized this overlap and utilized the

same reasoning for its decision regarding the work-product doctrine. In Grimes v.

DSC Communications Corp.,62 the Court of Chancery also discerned the overlap in

required showings and overruled a similar work-product claim: “For the same

reasons that the plaintiff has shown ‘good cause’ to overcome the claim of

attorney-client privilege, I conclude he has also shown a substantial need for the

information for purposes of the work-product doctrine.” 63 In this case, the record

reflects that the Court of Chancery’s work product ruling was properly and solely

based upon Rule 26(b)(3) and only referred to the privilege rationale of Garner as

overlapping with its own separate work product analysis.

                                     Cross-Appeal

         IBEW’s first argument in its cross-appeal is that the Court of Chancery

should have required Wal-Mart to collect documents from additional custodians.

The Court of Chancery found that IBEW waived this argument by not raising it in
61
     Id. at 782.
62
     724 A.2d 561 (Del. Ch. 1998).
63
     Id. at 570.

                                          33
its opening post-trial brief in that court. IBEW concedes its waiver 64 but asks this

Court to consider its arguments on the merits.             We have concluded that such

consideration is not required “in the interests of justice.”65

         IBEW’s second argument in its cross-appeal challenges the Court of

Chancery’s order requiring IBEW to return to Wal-Mart certain privileged

documents that were delivered to IBEW’s counsel by an anonymous source. The

record reflects that a number of documents included in the anonymous mailing

were publicly available on The New York Times website and a congressional

website. Approximately three documents were not publicly available, including

one document IBEW wanted to use as evidence that Wal-Mart conducted an

inadequate search or previously failed to disclose all relevant documents.

         Wal-Mart moved to strike all of the Whistleblower Documents, including

those available to the public. According to Wal-Mart, these materials were stolen

from it by a former employee and had been disseminated without Wal-Mart’s

consent. Wal-Mart revealed the name of the former employee it suspected of

removing the documents. It also stated that the former employee worked in the IT

department and that Wal-Mart had sought an order to keep him from disseminating



64
   See, e.g., Emerald Partners v. Berlin, 2003 WL 21003437, at *43 (Del. Ch. Apr. 28, 2003),
aff’d, 840 A.2d 641 (Del. 2003) (citations omitted) (finding an argument waived when it was not
included in the party’s opening post-trial brief).
65
     Supr. Ct. R. 8.
                                              34
further information.       Wal-Mart sought the Court of Chancery’s assistance in

securing the return of its stolen property from IBEW.

         The Court of Chancery ruled that the privilege had been lost by Wal-Mart as

to certain Whistleblower Documents that had been posted on websites maintained

by The New York Times and members of Congress.              However, the Court of

Chancery applied a conversion theory and held that the remaining Whistleblower

Documents—that is, those that have not been published by the media or elected

representatives—remain privileged and therefore must be returned to Wal-Mart.

The Court of Chancery determined that the anonymous nature of the mailing was

strong circumstantial evidence of conversion. The Court of Chancery stated, “I’ll

tell you what’s a really strong evidence in favor of that it was unauthorized, is

that—did the person who sent it to you identify him or herself?” 66 According to

the Court of Chancery, even if the “whistleblower” was in a position of authority,

the fact that he or she chose to remain anonymous indicated that they did not have

authority to disseminate the information.

         The Court of Chancery ruled that IBEW had to return the Whistleblower

Documents that were not otherwise publicly available.            In arriving at its

conclusion, the Court of Chancery explained:



66
     Appendix to Wal-Mart’s Opening Br. at A449.

                                             35
         I look at it as if you have someone else’s stuff and you shouldn’t have
         that, then you got to give it back. We’re not going to do that in a way
         where the entire world has the stuff, but the entire world does not have
         these other documents.

         So I’m requiring those to be given back and I’m requiring the
         references to those to be stricken. I don’t believe that the—the
         defendants—I mean, the company waived anything by proceeding in
         the way it did.

         ....

         Now, it might be a momentary return in a sense that that is certainly
         without prejudice to any argument in the – on the merits that there are
         responsive documents that the company didn’t produce. 67
         The record reflects that the Court of Chancery properly discharged its

equitable discretion in crafting a remedy for Wal-Mart, while still leaving an

avenue for IBEW to ultimately obtain the returned Whistleblower Documents.

The Court of Chancery’s ruling was made without prejudice and allowed IBEW to

address the returned Whistleblower Documents “on the merits that there are

responsive documents that the company didn’t produce.” Thus, IBEW may still be

entitled to the Whistleblower Documents it has been ordered to return if those

documents should have been otherwise disclosed by Wal-Mart within the scope of

the information already ordered to be produced by the Court of Chancery.




67
     Id. at A479-80.
                                           36
                                    Scope of Relief

           The Court of Chancery carefully assessed the scope of documents that

should have been made available to IBEW. During the colloquy with the parties,

the Court of Chancery addressed the number of custodians, the chain of corporate

communications, the internal investigation policy, the issue of duplication of

documents coming from different sources, and the 30(b)(6) depositions, among

other issues. The record supports the Court of Chancery’s conclusion that the

documents it ordered to be produced satisfied the necessary and essential standard

in the context of this Section 220 case.

           The Court of Chancery’s ruling is consistent with Saito v. McKesson HBOC,

Inc.,68 in which this Court held that, upon meeting the requirements of Section 220,

the stockholder “should be given access to all of the documents in the

corporation’s possession, custody or control, that are necessary to satisfy that

proper purpose.”69 “[W]here a [Section] 220 claim is based on alleged corporate

wrongdoing, and assuming the allegation is meritorious, the stockholder should be

given enough information to effectively address the problem . . . .”70 Whether or

not a particular document is essential to a given inspection purpose is fact specific


68
     806 A.2d 113 (Del. 2002).
69
     Id. at 115.
70
     Id.

                                           37
and will necessarily depend on the context in which the stockholder’s inspection

demand arises. In determining that “scope of relief,” our courts must circumscribe

orders granting inspection “with rifled precision.”71

         Wal-Mart contends that the Final Order was not circumscribed “with rifled

precision.” However, “rifled precision” also requires a fact specific inquiry and

can only be determined in the context of a specific case.                    The term “rifled

precision” requires the Court of Chancery to make a qualitative analysis of

documents demanded. “Rifled precision” is not a quantitative limitation on the

stockholder’s right to obtain all documents that are necessary and essential to a

proper purpose. 72 In this case, the Court of Chancery understood that “rifled

precision” is a qualitative standard and must be applied contextually: “you have

to—you actually have to interpret it sensibly and contextually. And in a situation

like this, it’s not like you’re talking about a board minute or two.” 73

         Wal-Mart argues that “[t]he scope of production ordered by the Chancery

Court is unprecedented . . . .” In fact, however, following this Court’s remand in

Saito, the Court of Chancery entered an implementing order substantially broader




71
     Id. at 117 n.10 (citing Brehm v. Eisner, 746 A.2d 244, 266-67 (Del. 2000)) (emphasis added).
72
     See Saito, 806 A.2d 113.
73
     Appendix to Wal-Mart’s Opening Br. at A566.

                                                38
in scope than the Final Order entered in this case.74 In Saito, the defendant-

corporation appealed the implementing order, and this Court affirmed, holding that

the order “was an appropriate implementation of the [stockholder’s] entitlement to

discovery established under this Court’s decision in Saito v. McKesson, HBOC,

806 A.2d 113 (Del. 2002),” and involved “no abuse of discretion.” 75 Comparing

the order entered in Saito and specifically approved by this Court with the

significantly more limited scope of the Final Order entered here, we hold that the

Final Order constituted an appropriate exercise of discretion.


                                          Conclusion

         For the reasons set forth in this Opinion, the judgment of the Court of

Chancery is AFFIRMED.




74
   Compare Saito v. McKesson HBOC, Inc., C.A. No. 18553 (Del. Ch. Sep. 20, 2002) (ORDER),
with the Final Order.
75
     McKesson Corp. v. Saito, 818 A.2d 970 (Del. 2003) (Table).
                                               39
