TP Orthodontics, Inc. v. Andrew Kesling, et al. - 8/6/13

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Tuesday  August 6, 2013 
1:30 PM  EST

1:30 p.m.  46A03-1207-MI-324. In 2010, the board of directors of TP Orthodontics, Inc. established a special litigation committee to determine whether to pursue a number of derivative claims brought by the Appellees.  After a year-long investigation, the committee issued a written report in which it recommended pursuing some claims of the Appellees’ claims, but not others.  TPO filed a motion to dismiss the rejected claims and attached a heavily redacted copy of the report.  The Appellees demanded access to the un-redacted report, but TPO resisted.  The trial court ultimately ordered TPO to produce the un-redacted report.  This interlocutory appeal followed.
TPO argues that there is no statutory basis for requiring it to produce the report, citing Indiana Code section 23-1-32-4.  The corporation also contends that allowing the Appellees access to the full report would violate the business-judgment rule and raise attorney-client privilege and work-product issues.  The Appellees claim that they cannot respond to TPO’s summary-judgment motion or challenge the committee’s determination without the full report.

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