The case arises from the collapse of Kroger’s proposed $24.6 billion acquisition of Albertsons, which was blocked by antitrust regulators in late 2024. Albertsons sued Kroger in the Delaware Court of Chancery, alleging Kroger willfully breached its contractual obligation to use “best efforts” — and ultimately “any and all actions” — to eliminate antitrust impediments to the merger, including by proposing deficient divestiture packages.
During discovery, Kroger witnesses testified that they believed the company was complying with its contractual duties based on legal advice from outside counsel Arnold & Porter Kaye Scholer LLP and Weil, Gotshal & Manges LLP. Albertsons then argued that Kroger had placed the substance of that legal advice “at issue,” triggering a broader subject-matter waiver. The parties ultimately entered into a stipulated privilege waiver covering “legal advice on the construction of the divestiture packages and the adequacy of the divestiture packages from a regulatory perspective.” A dispute arose over whether Kroger’s production under that waiver was sufficient.
Albertsons filed a Motion to Compel, seeking production of all internal Arnold & Porter and Weil communications related to divestiture construction or adequacy, regardless of whether those materials were ever communicated to Kroger. On June 25, 2026, Vice Chancellor Lori W. Will denied the motion, with limited guidance clarifying the scope of the waiver. The ruling holds that internal law-firm deliberations never transmitted to the client — brainstorming, theory-workshopping, and intra-firm debate — fall outside the scope of the stipulated privilege waiver. However, firm-side documents that were used to draft or prepare advice actually communicated to the client (whether in writing or orally) must be produced.
Key Holdings
- “Legal advice” requires a communicative act. The stipulated waiver covers “legal advice” on the divestiture packages; that term requires an act of communication to the client and does not extend to every uncommunicated musing of outside counsel.
- Internal back-and-forth among lawyers is generally protected. Summarizing a meeting, workshopping theories, or internal debate among firm lawyers is not “legal advice.”
- The formulation standard. A firm-side document that was used to draft or prepare advice ultimately communicated to the client (orally or in writing) falls within the waiver and must be produced; it has moved beyond “mere brainstorming.”
- Bandera distinguished. Albertsons relied on Bandera Master Fund LP v. Boardwalk Pipeline Partners, LP (Del. Ch. Apr. 7, 2020) for the proposition that all internal law-firm workings are discoverable once advice is placed at issue. The court distinguished Bandera on the ground that it involved a formal opinion of counsel placing the law firm’s own good faith directly at issue.
- Overbroad carve-out corrected. Kroger had withheld documents reflecting “an attorney’s contemporaneous reaction to a meeting or email” not connected to any specific client proposal. Vice Chancellor Will ruled this carve-out is overbroad: if a “contemporaneous reaction” memorializes or reflects information conveyed to the client, it must be produced.