261 F.3d 280

PARKER, Circuit Judge, respectfully dissenting:
Although I agree with most of what the majority says in its opinion, I part ways when it comes to the question of relief. In my view, the district court committed clear error in ordering the disclosure of matex-ial, which the court itself determined to be privileged, without a piior finding that the privilege had been waived, or that an exception to the privilege applied.
While the majority is quite correct that mandamus is a remedy rarely granted by this Court, nevertheless,
we will exercise mandamus review of discovery orders relating to claims of privilege where: (i) an issue of importance and of first impression is raised; (ii) the privilege will be lost in the particular case if review must await a final judgment; and (iii) immediate resolution will avoid the development of discovery practices or doctrine undennining the privilege.
Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 163 (2d Cir.1992) (issuing writ vacating discovery order that required party to produce documents subject to a claim of attoimey-client privilege prior to a ruling on the meiits of the objection).
Here, all three prerequisites for review exist. First, the district court’s order presents an issue of critical importance to the preseiwation of the privilege and an issue of first impression in this Circuit— whether a eoui-t may order disclosure of privileged attorney-client communications absent a determination that a waiver has occurred or that an exception to the privilege applies where the district court makes the disclosure subject to a protective oi’der intended to safeguard the privilege holder’s interests and prevent further dissemination. Second, even if the district court precludes the shareholders from introducing the general counsel’s deposition testimony at trial, the essence of the privilege — confidentiality of attorney-client communications — will be vitiated if Dow Corning must await a final judgment before seeking review of the order. Third, although the district court’s order has no precedential value, such an order from the Southern District has the potential to serve as a catalyst for the development of a discovery practice grounded in nothing more than the notions that (1) relevance, without more, may override the privilege, (2) a protective order will safeguard the privilege holder’s interests, including prevention of further disclosure, and (3) the disclosure will not be considered a waiver by other courts simply because this particular trial court has so declared. Consequently, I would hold that mandamus review is appropriate.
Turning to the merits of the district court’s order, I begin by noting that significant legal issues went unaddressed by the district court, issues that cannot be resolved at the appellate level on this exceptionally sparse record. Invoking Professor Wignore’s famous formulation, this Court has previously stated:
The privilege applies so that (l)[w]here legal advice of any kind is sought (2) fr'om a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or the legal adviser, (8) except the protection he waived.
In re Richard Roe, Inc., 68 F.3d 38, 39-40 (2d Cir.1995) (alteration in original) (emphasis added) (citing United States v. Kovel, 296 F.2d 918, 921 (2d Cir.1961)). We have also held that the privilege extends to information contained in communications from the attorney to the client for the purpose of rendering legal advice, see, e.g., In re Six Grand Jury Witnesses, 979 F.2d 939, 945-46 (2d Cir.1992) (“Where the client is a corporation, as here, the privilege extends to communications between a lawyer and his or her client — both information provided to the lawyer by the client and professional advice given by an attorney that discloses such information.”), and to the very “communications between [a law firm] and its clients for the purpose of obtaining or rendering legal advice, conducting the negotiation of [a] settlement, or defending [a] lawsuit,” Gould, Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676, 679 (2d Cir.1987). Although we have not been entirely consistent in our holdings as to the scope of the attorney-client privilege, suffice it to say that confidential communications between an attorney and his or her client, and the information contained therein, are protected when they are made for the purpose of rendering legal advice. In this case, the district court failed to make clear whether the unredacted minutes, and testimony about them, qualify under this standard. With the exceptionally sparse record before us, we are unable to do so ourselves.
Similarly, the privilege may not exist because Delaware law (to the extent it applies here) provides for shareholder and director access to books and records. See Del.Code Ann. tit. 8, § 220 (1999). Shareholders can even access privileged communications contained in such books and records upon a showing of “good cause,” based on the Gamer test discussed supra at pp. 286-86. See Grimes v. DSC Communications Corp., 724 A.2d 561, 568 (Del.Ch.1998). Whether these conditions have been met such that Delaware law operates to defeat the confidential nature of the information contained in the unredacted minutes, and therefore to defeat the privilege, went unaddressed by the district court. Again, it is a question that we are unable to answer on the record before us and that is distinctly appropriate for the district court’s determination on remand.
Accordingly, I would issue the writ of mandamus and vacate the discovery order at issue, while making it clear that the district court could revisit the issue on remand. Specifically, the court could determine whether the privilege has been waived, or that the communications fall within an exception to the privilege. I would also make it clear that such a conclusion would not represent a departure from our noted reluctance to issue writs of mandamus in discovery disputes.

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