Rohm and Haas Co. v. The Dow Chemical Co., et al., C.A. No. 4309-CC (Del. Ch. Feb. 12, 2009)

In this decision, the Court of Chancery denied Dow Chemical Company’s (“Dow’s”) motion to disqualify Wachtell, Lipton, Rosen & Katz (“Wachtell”) from conducting discovery against Dow as part of its representation of Rohm and Haas Company.

Dow argued that Wachtell should be disqualified because it claimed to be Wachtell’s current client as well as a former client in a substantially related matter in which it claimed Wachtell received access to confidential materials that could be used against Dow in the pending litigation. The Court weighed the interest of Dow in protecting confidences against the prejudice that would be caused to Rohm and Haas Company if Wachtell was disqualified and determined that Wachtell should not be disqualified. In reaching this conclusion, the Court noted that it did not believe that Dow was, or that Dow believed it was, a current Wachtell client because, during negotiation of a merger agreement that was the basis of the underlying suit, Wachtell acted as counsel for Rohm and Haas and Dow did not object to such representation at that time. The Court also noted that while Wachtell had previously represented Dow in 2007 and 2008 in connection with employee terminations as well as in connection with a rumored takeover bid, it did not believe that any confidential information that Wachtell had received as result of such representation would “materially enhance” the position of Rohm and Haas in the underlying litigation.

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