David, J.
Following the initiation of a derivative suit by sibling minority shareholders, TP Orthodontics’ board of directors formed a special litigation committee (the “SLC”) to investigate the derivative claims pursuant to Ind. Code § 23-1-32-4 (2007). After a year-long investigation, the SLC produced the report that is at issue here. As a result of the report’s recommendations, TPO filed a motion to dismiss certain derivative claims and attached a heavily redacted version of the report in support of its motion. Approximately 120 of the report’s 140 pages had been redacted “to prevent disclosure of attorney-client privileged information and attorney-work product prepared in anticipation of litigation.” (Appellant’s App. at 183.)
Seeking access to the unredacted report in order to challenge the SLC’s conclusions on one of only two grounds permitted by Indiana law, the sibling shareholders filed a motion to compel production of the full report. The trial court granted the sibling shareholders’ motion, and the Court of Appeals affirmed on interlocutory appeal. After holding oral argument, we granted TPO’s petition to transfer and are now faced with resolving two valid but competing interests: the siblings shareholders’ desire to access the full SLC report in order to contest the SLC’s conclusions, and TPO’s desire to protect privileged attorney-client communications and attorney work product potentially contained within the SLC report.
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This case presents us with two compelling but competing interests: the sibling shareholders’ desire to access the full SLC report in order to contest the SLC’s conclusions, and TPO’s desire to protect privileged attorney-client communications and attorney work product potentially contained within the SLC report. Addressing these competing interests, the trial court reasoned that “[i]t would seem only fair that the parties involved should be provided an opportunity to adequately conduct a review of the SLC report to determine if they did, in fact, conduct their investigation in good faith and that they are in fact disinterested” and accordingly ordered TPO to file the unredacted SLC report under seal. (Appellant’s App. at 11.) On appeal, TPO contends that (1) the business judgment rule; and (2) attorney-client privilege and work product privilege prevent disclosure of the full SLC report to the sibling shareholders.
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Here, there is no question that the full, unredacted SLC report is relevant at this stage of discovery proceedings, as the content of the report will provide the sibling shareholders with the information necessary to either prove or disprove the issue of whether the SLC conducted a good faith investigation into the derivative claims. Because an SLC’s good faith inquiry goes beyond procedure and into the substance of its investigation, it was not enough for TPO to only disclose portions of the SLC’s report detailing the SLC’s methodology. For example, the SLC may have conducted forty interviews, but the evidence of good faith lies in the quality, or lack thereof, of these interviews—who was interviewed, who was not interviewed, how thorough was the questioning, whether leads were followed up on, etc. Similarly, it is inadequate for TPO to cite a log of thirty SLC meetings without providing information on the quality and thoroughness of the discussions regarding the derivative claims that took place in these meetings. The trial court was correct to recognize that derivative plaintiffs need more than evidence of an SLC’s methodology to assess whether the SLC investigated in good faith before reaching its conclusion(s). But this is not the end of our review, for even though the entire SLC report may be relevant to the ultimate issue, it may contain privileged information potentially precluding disclosure.
Before we address whether the SLC’s report at issue contains privileged information, and if it does how to reconcile the parties’ competing interests, we emphasize that this is a discovery dispute that does not directly implicate, let alone undermine, the business judgment rule. Contrary to TPO’s assertion that requiring full or even partial disclosure of the SLC report compromises the policy of managerial discretion in derivative litigation that underlies the rule, we do not believe that permitting full or partial disclosure of the report constitutes judicial interference in business decision making or the SLC process. Consistent with the policy underlying the business judgment rule, we are not substituting our judgment for that of TPO’s directors. And to be sure, the statutory presumption of the SLC’s good faith still stands—it is the necessary access of the sibling shareholders to the report in order to rebut this presumption that is at issue here.
II. Privilege
Next, TPO claims that the trial court also erred by compelling production of the unredacted SLC report because the full report contained privileged attorney-client communications and attorney work product. In response, the sibling shareholders contend, among other things, that TPO impermissibly made a blanket claim of privilege, TPO implicitly waived any privileged information in the report by putting the SLC’s good faith at issue, and that justice requires disclosure of the full report. Both TPO and the sibling shareholders agree that waiver of privilege in this context is also an issue of first impression before this Court.
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Similarly, we cannot agree with the Court of Appeals that TPO’s “privilege is waived because the report is necessary to the litigation and requiring its production comports with fairness.” In re TP Orthodontics, Inc., 995 N.E.2d at 1065. Both attorney-client communication and attorney work product prepared in anticipation of litigation enjoy protected status under Indiana law. Accordingly, the trial court abused its discretion in ordering disclosure of the full SLC report, as portions of the SLC report containing privileged information cannot be disclosed to the sibling shareholders. However, the question remains as to who will be entrusted to determine which material contained within the SLC report is actually privileged.
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Although the sibling shareholders desire access to the full SLC report in order to meet their statutory burden of establishing the SLC’s lack of a good faith investigation, their wish for access cannot come at the expense of TPO’s desire to protect the privileged attorney-client communications and attorney work product contained within the report. We therefore remand this case to the trial court and direct (1) TPO to specifically identify privileged attorney-client communications and attorney work product contained within the SLC report; (2) the trial court to review in camera the revised redacted SLC report and privilege designations to determine whether the designated material is in fact privileged; (3) the trial court to then order the release of the revised SLC report not protected by privilege to the sibling shareholders; and (4) the trial court to issue a protective order preventing any party from disclosing the report’s (unredacted) contents.
An in camera review “should be a rare procedure in discovery disputes” because it “requir[es] the trial court to expend a great amount of time and energy.” Richey, 594 N.E.2d at 445; Canfield v. Sandock, 563 N.E.2d 526, 531 (Ind. 1990). But here, such an expenditure of resources is worthwhile. Under these and similar circumstances, the trial court serves as a gatekeeper whose sole obligation at this stage of the proceeding is to review the SLC report to determine what is or is not privileged attorney-client communication and what is or is not privileged attorney work product. It will not look for evidence on the ultimate issue, i.e. whether the SLC conducted a good faith investigation. Should the trial court determine that the SLC report contains privileged attorney-client communication and/or privileged attorney work product, it will redact the privileged information before ordering the release of the redacted SLC. However, absent derivative plaintiffs’ valid or unasserted claims of attorney-client privilege or work product privilege, SLC reports are to be presumptively disclosed. [Footnote omitted.]
IV. Conclusion
Therefore, we remand this case to the trial court with the above instructions.
Rush, C.J., Dickson, Rucker, and Massa, JJ., concur.