FOR PUBLICATION                                                        Sep 03 2013, 5:34 am




ATTORNEYS FOR APPELLANT/                     ATTORNEYS FOR APPELLEE
INTERVENOR, TP ORTHODONTICS:                 ANDREW C. KESLING:

SEAN M. CLAPP                                THOMAS G. BURROUGHS
ELIZABETH M. ELLIS                           MICHAEL W. HILE
Clapp Ferrucci                               Katz & Korin, PC
Fishers, Indiana                             Indianapolis, Indiana

                                             ATTORNEYS FOR JOINT APPELLEES
                                             CHRISTOPHER K. KESLING, DDS, MS,
                                             ADAM KESLING AND EMILY KESLING:

                                             ROBERT W. WRIGHT
                                             Dean-Webster Wright LLP
                                             Indianapolis, Indiana

                                             SHAW R. FRIEDMAN
                                             Friedman & Associates, P.C.
                                             LaPorte, Indiana

                                             JOHN A. CONWAY
                                             JOHN A. DRAKE
                                             Ladue Curran & Kuehn LLC
                                             South Bend, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

TP ORTHODONTICS, INC.,                       )
                                             )
      Appellant-Intervenor,                  )
________________________________________     )
                                             )
CHRISTOPHER K. KESLING, DDS, MS,             )
ADAM KESLING, and EMILY KESLING,             )
Individually and derivatively on behalf of   )
TP ORTHODONTICS, INC.,                       )
                                             )
      Plaintiffs-Appellees,                     )
                                                )
      vs.                                       )
                                                )    No. 46A03-1207-MI-324
ANDREW C. KESLING, individually                 )
and as TRUSTEE OF THE ANDREW                    )
C. KESLING TRUST DATED MARCH                    )
28, 2001, and THE ANDREW C. KESLING             )
TRUST DATED MARCH 28, 2001,                     )
                                                )
      Defendants-Appellees.                     )


        INTERLOCUTORY APPEAL FROM THE LAPORTE SUPERIOR COURT
                  The Honorable Richard R. Stalbrink, Jr., Judge
                        Cause No. 46D02-1001-MI-15


                                   September 3, 2013

                              OPINION - FOR PUBLICATION

VAIDIK, Judge


                                    Case Summary

      In 2010, three sibling shareholders, Christopher, Adam, and Emily Kesling (“the

siblings”), filed suit against their brother, Andrew Kesling, on behalf of the family

business, TP Orthodontics (“TPO”). In response, TPO’s board of directors established a

special litigation committee to determine whether to pursue the siblings’ derivative

claims against Andrew, the president of TPO. After an investigation, the committee

issued a written report in which it recommended pursuing some of the siblings’ claims

but not others. If a special litigation committee rejects derivative plaintiffs’ claims,

Indiana law requires that those claims be dismissed, provided that the committee was

disinterested and acted in good faith in reaching its decision. In accordance with Indiana

law, TPO filed a motion to dismiss the rejected claims and attached a heavily redacted
                                            2
copy of the committee’s report. The siblings demanded access to the unredacted report,

but TPO refused to produce it. The trial court ultimately ordered TPO to produce the

report, and this interlocutory appeal followed.

       The issue before us is whether a corporation must give derivative plaintiffs access

to the report that the corporation relies on when seeking dismissal of the plaintiffs’

claims. We conclude that the corporation’s arguments against production are outweighed

by basic considerations of necessity and fairness. Derivative plaintiffs must show that the

special litigation committee was not disinterested or did not act in good faith in order to

survive a corporation’s motion to dismiss. The best evidence of whether the committee

acted in good faith is the committee’s report explaining how it so acted. Not only do

derivative plaintiffs need the report in order to challenge the committee’s good faith, our

trial-court judges need this report to make informed decisions.

       We acknowledge that attorney-client privilege will undoubtedly infiltrate many of

these reports; indeed, it is entirely conceivable that part of any special litigation

committee’s reasoning for rejecting a claim will be based on counsel’s advice that a claim

is unlikely to succeed on the merits or too costly given the prospects of success. And in

such a case, the very reason that the committee acted in good faith is because of an

attorney’s advice. Thus, we find that where a corporation forms a special litigation

committee, and the corporation later requests dismissal of derivative plaintiffs’ claims

based on the findings of that committee, privilege as to the committee’s report is waived.

We affirm the trial court’s order compelling production of the special litigation

committee report and remand for further proceedings.


                                             3
                            Facts and Procedural History

      In 2010, the siblings filed a complaint against their brother Andrew in LaPorte

Superior Court on behalf of the family business, TPO.       Although TPO is based in

Indiana, the privately held company manufactures and distributes orthodontic products

around the world. Collectively, the siblings own 11% of TPO voting stock and Andrew

owns 51%. Andrew is the president of TPO.

      In their complaint, the siblings alleged that Andrew had acted wrongfully in a

number of ways, such as exchanging currency at a loss to the company, failing in

corporate governance—specifically, failing to implement counseling or sensitivity

training at TPO, which resulted in several sexual-harassment claims and litigation—

improperly charging travel and entertainment expenses to TPO, taking improper

advances on royalty and patent payments, and using TPO funds for personal expenses.

The siblings claimed that Andrew’s actions caused economic loss to the company and its

shareholders.

      Andrew sought to stay the litigation and appoint a committee to determine whether

litigation on behalf of TPO was in the corporation’s best interests, and TPO filed a

motion to intervene. The trial court granted both motions. In July, TPO’s board of

directors established a special litigation committee (“the committee”) to investigate the

siblings’ allegations. TPO also retained the Indianapolis-based law firm of Wooden &

McLaughlin LLP to assist the committee with its investigation. Over the next year, the

three-member committee met thirty times, reviewed approximately 10,000 pages of

categorized documents, and conducted over forty interviews with employees and others


                                           4
involved with TPO. In August 2011, the committee completed its Special Litigation

Committee Report (“the report”), which is the subject of this litigation. See Appellant’s

App. p. 357-86.1 The report was authored by the committee members, none of whom are

attorneys, with assistance from Wooden & McLaughlin counsel. Id. at 357.

        Only TPO directors were allowed to see the report.2 In the report, the committee

concluded that TPO should pursue only a few of the siblings’ claims against Andrew;

specifically, the claims related to patent and royalty payments and corporate governance.

The committee concluded that it was not in TPO’s best interests to pursue the other

claims.

        Shortly after the report was completed, TPO filed a motion to dismiss the rejected

claims and filed a copy of the report, along with related exhibits, under seal. The entire

report consists of a cover page, four table-of-contents pages, a 139-page report, and a

signature page. But in the copy TPO attached to its motion, more than 100 pages were

redacted.    An affirmation attached to the report, signed by James Hutton, TPO’s

secretary, states that the report was redacted to “prevent disclosure of attorney-client

privileged information and attorney work product prepared in anticipation of litigation . .

. .” Id. at 181-83. The unredacted pages describe TPO’s creation and operation, id. at

361-66, the professional background of each committee member, id. at 366-68, and




        1
          The report spans only twenty-nine pages in the record because the redacted pages are reflected
on a single page. See Appellant’s App. p. 387 (page reads “Pages 25 through 107 Redacted”).
        2
         TPO states that only the board of directors received the report, with the exception of Andrew,
who was not permitted to see the document. The siblings argue that there is no proof of either fact, but
we need not belabor this point. What matters is that the siblings do not have access to the report.
                                                   5
investigation procedure, id. at 369-73. The report also identifies the claims that the

committee approved and those it rejected. Id. at 374-77, 381-83, 385.

       A few days later, the siblings filed a motion to compel TPO to produce the entire,

unredacted report, and the trial court heard arguments on the motion. The siblings argued

that in practice, a special litigation committee’s report is regularly provided to plaintiffs,

citing two Indiana cases, Cutshall v. Barker, 733 N.E.2d 973 (Ind. Ct. App. 2000), and

Marcuccilli v. Ken Corp., 766 N.E.2d 444 (Ind. Ct. App. 2002), reh’g denied, for

support. Tr. p. 8. The siblings claimed that without the unredacted report, they were

“dealing with a blank slate,” making it impossible to respond to TPO’s motion to dismiss.

Id. They said that they were unable to challenge the committee’s good-faith investigation

or its disinterestedness—the sole grounds for challenging a special litigation committee’s

conclusions under Indiana law. In support of their claim that TPO should be required to

produce the unredacted report, the siblings relied on a federal case interpreting Michigan

law, In re Perrigo, 128 F.3d 430 (6th Cir. 1997). Finally, the siblings argued that TPO

had not shown that production of the report would violate any privilege.

       In response, TPO pointed out that Cutshall and Marcuccilli only mentioned

special litigation committee reports in passing; whether a report must be produced was

not at issue in either case.3 More importantly, TPO argued that the business-judgment

rule prohibits inquiry into the substance of a committee’s decision; courts may only

inquire into a committee’s investigative procedures and methodologies. Id. at 25. By

requesting the unredacted report, the siblings sought to go beyond the bounds of

       3
          Although Andrew’s counsel also participated at the hearing, his arguments aligned with TPO’s;
for the sake of brevity, we discuss TPO’s arguments here. We treat Andrew’s arguments on appeal in the
same fashion.
                                                  6
permissible access under the business-judgment rule. TPO agreed, however, to engage in

limited additional discovery relevant to the committee’s investigation. See Appellant’s

App. p. 225. Finally, TPO stood firm in its position that the report contained privileged

material. Counsel told the trial court the corporation would not object if the court wished

to review the unredacted report in camera to evaluate its privilege claims. Tr. p. 89. The

trial court did not review the unredacted report.

       After the hearing, the trial court granted the siblings’ motion and ordered TPO to

file the unredacted report under seal and produce copies to the parties. The court also

issued a protective order preventing any party from disclosing the report’s contents to

third parties. In the order, Judge Richard Stalbrink interpreted Indiana Code section 23-

1-32-4 and Indiana’s business-judgment rule, but said he found no Indiana case law

“directly on point.” Appellant’s App. p. 9-13. He went on to adopt the reasoning of the

federal court in Perrigo. 128 F.3d at 430. In Perrigo, the federal court concluded that

“as a matter of fairness and practicality, the derivative plaintiffs . . . will need the

[committee’s] report in order to ‘rebut the presumption that [the corporation] acted in

good faith and made a reasonable investigation.’” Id. at 438 (emphasis added). Judge

Stalbrink reached a similar conclusion, saying “it would only seem fair that the parties

involved should be provided an opportunity to adequately conduct a review of the []

report to determine if they did, in fact, conduct their investigation in good faith . . . .”

Appellant’s App. p. 11. He also explained that if he did not have access to the entire

report, “all that is before the court is the assertion that the investigation was extensive and




                                              7
expensive and therefore must have been in good faith.” Id. at 12. The ruling made no

mention of privilege.

       In March 2012, TPO filed a motion to certify the trial court’s order for

interlocutory appeal, which the trial court granted. This Court subsequently accepted

jurisdiction over this appeal.4

                                   Discussion and Decision

       The question posed in this appeal is whether a corporation must provide the report

of its special litigation committee to derivative plaintiffs. We begin our analysis by

setting forth Indiana law regarding shareholder derivative suits and special litigation

committees.

       Indiana Code section 23-1-32-4 sets forth all the requirements for a special

litigation committee. The Section allows a corporation’s board of directors to establish a

committee of three or more disinterested directors—or other disinterested persons—to

determine whether “the corporation has a legal or equitable right or remedy” and

“whether it is in the best interests of the corporation to pursue that right or remedy, if any,

or to dismiss a proceeding that seeks to assert that right or remedy on behalf of the

corporation.” Ind. Code § 23-1-32-4(a)(1), (2). A committee is independent in that it is

not subject to the direction or control of the board of directors, and the board may not

terminate it. I.C. § 23-1-32-4(b).

       If a special litigation committee determines that a derivative proceeding on the

corporation’s behalf is not in the corporation’s best interests, that determination is


       4
          We held oral argument in this case on August 6, 2013. We commend counsel for their astute
and spirited advocacy throughout this case.
                                                8
“presumed to be conclusive against any shareholder making a demand or bringing a

derivative proceeding . . . .” I.C. § 23-1-32-4(c). A plaintiff may only challenge this

determination by arguing that the committee was not “disinterested” or the committee’s

determination “was not made after an investigation conducted in good faith.” I.C. § 23-

1-32-4(c)(1), (2). What constitutes a good-faith investigation will depend in part on the

adequacy and appropriateness of a committee’s investigatory procedures, which depends

on the nature and complexity of the claim. I.C. § 23-1-32-4 cmt. (c).5 A director or other

committee member is “disinterested” if that person:

        (1) has not been made a party to a derivative proceeding seeking to assert
            the right or remedy in question, or has been made a party but only on
            the basis of a frivolous or insubstantial claim or for the sole purpose of
            seeking to disqualify the director or other person from serving on the
            committee;

        (2) is able under the circumstances to render a determination in the best
            interests of the corporation; and

        (3) is not an officer, employee, or agent of the corporation or of a related
            corporation. However, an officer, employee, or agent of the corporation
            or a related corporation who meets the standards of subdivisions (1) and
            (2) shall be considered disinterested in any case in which the right or
            remedy under scrutiny is not assertable against a director or officer of
            the corporation or the related corporation.

I.C. § 23-1-32-4(d)(1)-(3).

        Section 23-1-32-4 creates a presumption in favor of Indiana corporations;

specifically, the presumption that the decisions made by corporations’ special litigation

committees is conclusive against shareholders. Shareholders may only overcome that

presumption      by    challenging      the   committee’s       disinterestedness      or   good-faith

        5
          Indiana Code section 23-1-17-5 provides that published official comments “may be consulted
by the courts to determine the underlying reasons, purposes, and policies of this article and may be used
as a guide in its construction and application.”
                                                   9
investigation. The statute codifies the business-judgment rule, which has long been

recognized in Indiana. The rule describes the basic principle of judicial reluctance to

interfere in corporate matters and the presumption that corporate directors act in an

informed, good faith, and honest manner when managing corporate affairs. See In re

Guidant S’holders Derivative Litig., 841 N.E.2d 571, 575 (Ind. 2006); see also G & N

Aircraft, Inc. v. Boehm, 743 N.E.2d 227, 238 (Ind. 2001); Lees Inns of Am., Inc. v.

William R. Lee Irrevocable Trust, 924 N.E.2d 143, 157 (Ind. Ct. App. 2010), trans.

denied. Over time, two formulations of the business-judgment rule have emerged: the

restrained and deferential Auerbach approach, which puts corporate decision-making

largely outside judicial review, and the more aggressive Zapata approach, which allows a

court to exercise its own business judgment in evaluating a special litigation committee’s

decisions. Indiana has adopted the Auerbach approach. See I.C. § 23-1-32-4 cmt. (c)

(expressly rejecting Zapata v. Maldonado, 430 A.2d 779 (Del. 1981), and following

Auerbach v. Bennett, 393 N.E.2d 994 (N.Y. 1979)).

      In practice, Indiana’s application of the business-judgment rule limits the scope of

inquiry into a committee’s investigation. In Cutshall, we explained it this way:

      While the court may properly inquire as to the adequacy and
      appropriateness of the committee’s investigative procedures and
      methodologies, it may not under the guise of consideration of such factors
      trespass in the domain of business judgment.

      Thus, the courts cannot inquire as to which factors were considered by that
      committee or the relative weight accorded them in reaching that substantive
      decision . . . inquiry into such matters would go to the very core of the
      business judgment made by the committee. To permit judicial probing of
      such issues would be to emasculate the business judgment doctrine as
      applied to the actions and determinations of the special litigation


                                            10
          committee. Its substantive evaluation of the problems posed and its
          judgment in their resolution are beyond our reach.

733 N.E.2d at 978 n.6 (citing Auerbach, 393 N.E.2d at 1002) (formatting altered).

          Although there are many cases applying the business-judgment rule in the

derivative-claim setting, there are no Indiana cases addressing the precise issue before us;

that is, whether a plaintiff may compel production of a special litigation committee’s

report.

                                       I. Motion to Dismiss

          Before reaching the substantive issues in this case, the siblings ask us to dismiss

this appeal due to TPO’s failure to comply with the requirements of Appellate Rule 10.

The siblings made this argument to the motions panel, and the panel rejected it. See

Order on State’s Motion to Dismiss, Cause No. 46A03-1207-MI-324 (Ind. Ct. App. Jan.

11, 2013). According to the siblings, notice of completion was issued and served but not

filed with the Court of Appeals, and TPO never filed a motion to compel the trial-court

clerk to file the notice in accordance with Rule 10(F). In the event that notice of

completion is not filed, Rule 10(F) requires an appellant to seek an order from this Court

compelling the clerk to complete the record and file such notice. Failure to do so subjects

the appellant’s appeal to dismissal.

          But as TPO explains, the trial-court clerk certified that she timely prepared the

notice of completion and sent copies to the parties and the Court of Appeals clerk (as well

as our Supreme Court and Tax Court) by United States mail, postage prepaid. This

certification entitled TPO to the presumption that the trial-court clerk had done her duty.

See INB Trust No. 337 v. Veljanoski, 593 N.E.2d 1263, 1266 (Ind. Ct. App. 1992)

                                              11
(citation omitted), reh’g denied, trans. denied. For some reason, this notice was not

immediately reflected on the appellate docket. However, after the siblings filed their

motion to dismiss, the docket was updated to reflect the notice, with the certificate-of-

service date listed as October 1, 2012, which was timely.

       Based on these facts, we see no basis for overruling the motions panel. See In re

Estate of Eguia, 917 N.E.2d 166, 169 (Ind. Ct. App. 2009) (this Court is reluctant to

overrule orders decided by the motions panel).

                                   II. Standard of Review

       TPO argues that this case poses a legal question requiring interpretation of the

special litigation committee statute, Section 23-1-32-4. But the statute makes no mention

of a committee report; thus, we cannot agree that this is a matter of statutory

interpretation.

       Rather, this is a discovery dispute, albeit a complex one. Our trial courts are

vested with broad discretion with respect to discovery issues. “Decisions regarding

discovery matters will be reversed only if there has been an abuse of that discretion.”

Fifth Third Bank v. PNC Bank, 885 N.E.2d 52, 54 (Ind. Ct. App. 2008) (citing Hartford

Fin. Servs. Group, Inc. v. Lake Cnty. Park and Recreation Bd., 717 N.E.2d 1232, 1234

(Ind. Ct. App. 1999) (citations omitted)). An abuse of discretion occurs when a trial

court’s conclusion is against logic and the natural inferences that can be drawn from the

facts and circumstances before the trial court, and where there is no rational basis for the

trial court’s decision. Id.

                                      III. Relevancy


                                            12
       The siblings contend that the entire report is relevant to the issue of whether the

committee conducted a good-faith investigation of their claims. TPO argues that only the

unredacted portions are relevant to good faith. Relevancy as it relates to disinterestedness

is not at issue; the parties agree that disinterestedness is a straightforward issue and that

the committee members in this case were disinterested.

       Under Indiana Evidence Rule 401, relevant evidence is “evidence having any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.” TPO

defines relevance in terms of procedures and methodologies. The corporation claims it

produced all the relevant information here (committee-member profiles, the number of

meetings, interviews, documents, etc.), and any information beyond that is irrelevant.

Because it has never produced the entire report, TPO essentially asks this Court—as well

as the siblings and trial court—to trust that it has provided all the relevant information.

       But the unredacted report paints a partial picture, at best. It describes what the

committee did—not what it may have failed to do or may have done incorrectly or

incompletely.    The committee may have failed to investigate all of the siblings’

complaints or theories of relief. The committee may have failed to interview a key

employee, or may have interviewed that employee for less than five minutes. See Peller

v. The S. Co., 707 F. Supp. 525, 529 (N.D. Ga. 1988) (“The conduct of the interviews is a

most important factor in determining whether the [committee] pursued its charge with

diligence and zeal, or whether it played softball with critical players.”). The committee

may have investigated the wrong issues as well. See Boland v. Boland, 31 A.3d 529, 566


                                             13
(Md. 2011) (“The [committee] cannot arrive at a reasonable answer if it addresses the

wrong issues.         Thus, addressing the wrong issues is an example of unreasonable

methodology.”). Any of these failures may give rise to a material question about the

good faith of the committee’s investigation. But the siblings would not know of these

issues unless they had access to the entire report. We conclude that the entire report is

relevant to the issue of good faith.

                                          IV. Access to the Report

       Having determined that a committee’s entire report is relevant, we now consider

whether a corporation may refuse to produce it. Judge Stalbrink said no. We agree.

       TPO refused to produce the entire report in part because it claimed the redacted

material is privileged.6 This Court has yet to consider privilege in the context of a special

litigation committee’s report.            But other courts have held that a special litigation

committee’s report may contain privileged material. See Perrigo, 128 F.3d at 438; In re

Cont’l Ill. Secs. Litig., 732 F.2d 1302, 1314 (7th Cir. 1984); Joy v. North, 692 F.2d 880,

893-94 (2d Cir. 1982); Hollinger Int’l. Inc. v. Hollinger Inc., 230 F.R.D. 508, 514 (N.D.

Ill. 2005); In re Dayco Corp. Derivative Secs. Litig., 99 F.R.D. 616, 620-22 (S.D. Ohio

1983).7 Certainly attorney-client communications will infiltrate many special litigation

committee reports, particularly where reports contain attorney advice as to how a




       6
           We use the term “privileged” to encompass attorney-client communications and attorney work
product.
       7
           These cases did not limit derivative plaintiffs’ access to the report based on privilege.

                                                      14
committee should proceed on particular claims.8 Indeed, the committees’ reasoning for

rejecting claim may well be based on counsel’s advice that a claim is unlikely to succeed

on the merits. And in such a case, the very reason that the committee acted in good faith

is because of an attorney’s advice.

        But privilege can be waived, such as in as in malpractice or ineffective-assistance

claims. See Canfield v. Sandock, 563 N.E.2d 526, 529 (Ind. 1990) (by bringing personal-

injury claim, plaintiff waived physician-patient privilege as to matters causally and

historically related to the condition at issue and directly medically relevant to claim,

counterclaim, or defense), reh’g denied; Carter v. State, 738 N.E.2d 665, 674 n.6 (Ind.

2000) (“Carter sought to have trial counsel’s testimony excluded from the post-

conviction court on the basis of the attorney-client privilege and now asks us to ignore

the testimony as well. However, as the post-conviction court correctly noted, a defendant

waives the attorney-client privilege when he files a petition for post-conviction relief on

the grounds of ineffective assistance of counsel.”). We hold that this is another instance

where privilege is waived because the report is necessary to the litigation and requiring

its production comports with fairness.9 Our holding is limited to the committee’s report

only—the written report, or in the case a written report does not exist, an oral report to

the corporation’s board of directors. Any other claims of privilege are not affected by our

holding.



        8
          The trial court did not rule on the issue of privilege. Supra, p. 8. For the purposes of our
analysis in this case, we assume that the report contains privileged material.
        9
           We do not address the issue of whether a report must be disclosed to the public; we hold only
that the report must be produced to derivative plaintiffs.
                                                  15
       We allow access to the committee report because Indiana law permits the siblings

to make two challenges to the committee’s determination—they can argue that the

committee was not disinterested or that their investigation was not made in good faith.

The most relevant source of that information is undoubtedly the committee’s report. The

siblings cannot make their statutorily allowed challenges, particularly their good-faith

challenge, without access to the entire report.10

       This reality is reflected in case law. In the two Indiana cases that mention a

special litigation committee’s report, Cutshall and Barker, the plaintiffs had access to the

committees’ reports. And we can find no case outside of our state in which derivative

plaintiffs have been denied access to a committee’s report. Indeed, in two cases where

corporations tried to deny the plaintiffs access to the report, their attempts were flatly

rejected. See Perrigo, 128 F.3d at 438 (“As a matter of fairness and practicality, the

derivative plaintiffs . . . will need the Report in order to rebut the presumption that [the

corporation] acted in good faith and made a reasonable investigation.”) (quotation

omitted); Joy, 692 F.2d at 893 (“[I]f the . . . committee recommends termination and a

motion for judgment follows, the committee must disclose to the court and the parties not

only its report but all underlying data.”).

       Importantly, not just derivative plaintiffs need access to the entire report. Our trial

judges need access to the report as well. Without access to these reports, they cannot

properly evaluate the parties’ claims. See Perrigo, 128 F.3d at 438 (“[T]he court must


       10
            We are unmoved by TPO’s argument that the siblings can obtain this information through
traditional discovery methods. The report is the best, most comprehensive evidence of the committee’s
good faith. Other methods of discovering this information will be cumbersome and expensive and will
require frequent trial-court intervention.
                                                 16
have the report before it can properly rule on Perrigo’s motion and perform its judicial

function.”). Judge Stalbrink acknowledged that reality in this case: “[Without the report]

all that is before the court is an assertion that the investigation was extensive and

expensive and therefore must have been in good faith.”            Appellant’s App. p. 12.

Providing these reports to trial courts will put critically relevant information in the hands

of our trial judges, allowing them to make informed decisions regarding the future of

derivative plaintiffs’ claims.

       In closing, we acknowledge TPO’s concerns about the potential implications of

our holding on the business-judgment rule, but we do not share them. There is no reason

to believe that simply allowing derivative plaintiffs access to committee reports will lead

to trespass into the domain of business judgment. We are confident in the ability of our

trial courts to interpret Indiana’s business-judgment rule and reject claims that threaten to

emasculate that rule.

       We therefore affirm the trial court’s order compelling TPO to file a copy of the

entire report under seal and produce a copy to the siblings and their counsel, and we

remand for further proceedings.

       Affirmed.

KIRSCH, J., and PYLE, J., concur.




                                             17
