Mintz's "Directors Beware — Your Emails and Texts Could Be Subject to Inspection Under Delaware Law" again reminds us, in the context of two recent Delaware decisions (one recently reported on here), of the importance of documenting corporate actions via board minutes, resolutions and other formal documentation, and otherwise observing traditional corporate formalities. The memo explains why directors' personal emails, text messages, and social media communications were subject to inspection in connection with DGCL §220 books & records requests in these cases and how to avoid a similar scenario at your company, and highlights the risks of directors using these modes of communication to conduct company business.
See also Kirkland & Ellis's "Text Messages and Personal Emails May Be Fair Game in Corporate Litigation," and additional Board/Director Communications resources on our Cybersecurity/Data Privacy page and our Corporate Secretary's Office page. This post first appeared in the weekly Society Alert!