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

In re Eugene E. Du Pont Trust FBO Sarah Schutt Harrison, 2026 WL 596417 (Del. Ch. Mar. 2, 2026)

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.