Delaware Chancery Court Approves Privilege Protection Order in Historic Du Pont Trust Litigation

Court: Delaware Court of Chancery
Date: March 2, 2026 — In re Eugene E. Du Pont Trust FBO Sarah Schutt Harrison, 2026 WL 596417

Summary of Relevant Facts

Two historic family trusts are at the center of this litigation: the Eugene E. Du Pont Trust, established December 30, 1940, and the Harold S. Schutt Trust, established November 26, 1931. Wilmington Trust Company serves as trustee for both trusts. Petitioners filed a declaratory judgment action concerning the trusts, and in the course of discovery, the parties faced the challenge of producing attorney-client privileged and work-product protected documents without waiving those protections for future proceedings.

Procedural Background

Petitioners initiated a declaratory judgment action in the Delaware Court of Chancery. During the discovery phase, the parties negotiated a stipulation under Delaware Rule of Evidence 510(f) to enable the production and sharing of privileged and protected documents without waiver. The parties presented the stipulated order to Vice Chancellor Cook for approval.

Main Controversies

The central issue was whether the court should approve a stipulated order under Rule 510(f) that would allow the parties to produce and share attorney-client privileged and work-product protected materials during discovery without constituting a waiver of those protections in the current proceeding or in any future proceeding. The underlying concern was that the scope of discovery in this trust litigation — involving trusts dating back to 1931 and 1940 — was extensive, and without adequate protection, production of sensitive communications could result in permanent loss of privilege.

Position of the Parties

Petitioners: Sought the Rule 510(f) stipulation to enable comprehensive discovery while preserving privilege protections. They supported the arrangement as necessary to facilitate the efficient resolution of the declaratory judgment action without risking waiver of important protections.

Wilmington Trust Company (Trustee): Agreed to the proposed stipulation, recognizing that privilege protections were essential given the trusts' long history and the volume of potentially privileged communications spanning decades of trust administration.

Holding

Approved. Vice Chancellor Cook approved the stipulated order under Rule 510(f), allowing production of privileged materials — designated as "510(f) materials" — without constituting a waiver of privilege in the current or any future proceedings.

Reasons for the Decision

The court approved the stipulated order because Delaware Rule of Evidence 510(f) expressly provides a mechanism for parties to agree that disclosure of privileged communications in litigation does not constitute waiver. The parties' negotiated stipulation fell squarely within this framework. Given the historic nature of the trusts — one dating to 1931 and the other to 1940 — the discovery was expected to involve extensive documentation spanning decades, significantly increasing the risk of inadvertent privilege waiver during production. The stipulated order addressed this risk by creating a clear, enforceable agreement that production of designated materials would not operate as a waiver. The court found the arrangement reasonable, consistent with the purpose of Rule 510(f), and beneficial to the efficient administration of the litigation.

This case summary is provided for educational and informational purposes only. It should not be construed as legal advice.

The Delaware Court of Chancery approved a stipulated order under Delaware Rule of Evidence 510(f) to protect attorney-client privilege and work product during trust litigation involving two historic family trusts dating back to 1931 and 1940. The order in In re Eugene E. Du Pont Trust highlights an important procedural tool available to parties in trust disputes in Delaware.

Background

Petitioners filed a verified petition for declaratory judgment regarding the Eugene E. Du Pont Trust (dated December 30, 1940) and the Harold S. Schutt Trust (dated November 26, 1931). Wilmington Trust Company serves as trustee of both trusts. The parties agreed to a Rule 510(f) stipulation to facilitate document production without waiving privilege protections.

The Order

Vice Chancellor Cook granted the proposed order, which provides that the production of documents designated as 510(f) materials during the litigation will not constitute a waiver of attorney-client privilege or work product protection in this proceeding or in any other proceeding. This allows parties to produce potentially privileged documents for purposes of the trust litigation without the risk that such production could be used against them in other contexts.

Practical Implications

This order illustrates a valuable procedural strategy for trust litigation in Delaware. Delaware Rule of Evidence 510(f) provides a mechanism for parties to share privileged or protected materials during litigation without waiving those protections. For practitioners handling trust disputes involving long-standing family trusts with decades of administrative history, a 510(f) order can be essential to enabling meaningful discovery while preserving important privilege protections.

Key takeaways include: First, practitioners should consider seeking a 510(f) order early in trust litigation, ideally by stipulation, to establish ground rules for document production. Second, the order protects against inadvertent waiver, which is particularly important in cases involving voluminous trust records spanning many decades. Third, this approach is especially relevant for historic family trusts where the administrative record may contain sensitive communications between trustees, beneficiaries, and counsel over many years. Finally, Delaware’s willingness to approve such orders reinforces the state’s reputation as a favorable jurisdiction for trust administration and litigation.