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Considerations for Directors on Taking Notes and Avoiding Legal Traps

“Directors’ notes, if not properly handled, can result in unintentional waivers of privilege and violations of confidentiality obligations,” write lawyers from Wachtell, Lipton, Rosen & Katz, in an article that describes the traps that unwary directors may fall into if not careful with note taking. While not specifically targeted at fund directors, the article offers valuable takeaways. Directors should use caution in creating or retaining any notes, texts or emails that could be considered an unofficial record of a board meeting, according to the article. Incomplete or cryptic notes could be easily misinterpreted during litigation or undermine the official minutes of the meeting. According to the authors, “properly-drafted minutes can serve the same purpose without the risks inherent in retaining meeting notes. In many cases, notes are informal comments or questions in document margins whose import may be easily misinterpreted by others or even misremembered by the author, since litigation may occur months after the event.” The article also discusses emails and the use of electronic board portals, which can create security issues and “difficulties in ensuring that the documents and related notes are deleted in accordance with company policy.” The authors suggest that boards should adopt a policy regarding directors’ notes, draft minutes, and other board documents that best serves that board’s specific needs.

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