Petitioner refused to produce questionnaires and interview transcripts between its General Counsel and employees. Respondent filed a motion with the Court to compel disclosure.
Attorney-client privileges may extend to communication between every employee and a corporation’s general counsel.
Upjohn Corporation (Petitioner) conducted an internal investigation after it became aware of illegal payments to foreign governments within the company. The investigation was led by Petitioner’s General Counsel, who sent questionnaires and interviewed mid-level and low-level employees. The IRS (Respondent) requested copies of the questionnaires and interview transcripts in discovery. Petitioner refused to produce the documents, arguing that the copies were protected by attorney-client privilege. Respondent filed a motion with the court to compel production of the documents.
Does attorney-client privilege apply to communication between Petitioner’s General Counsel and mid-level and low-level employees?
Yes, the communication was protected by attorney-client privilege.
The Court rejected the control group test applied by lower courts. The Court determined that this approach frustrated the purpose of attorney-client privilege and was too difficult to apply in practice. Here, the questionnaires and interviews were protected communication because it was information sought by the general counsel, conveyed as highly confidential, and meant to secure information necessary for legal advice.