Brief Fact Summary. Upjohn Company (Petitioner) contended that certain questionnaires prepared as part of an internal company investigation were protected from disclosure by the attorney-client privilege.
Synopsis of Rule of Law. The attorney-client privilege may be applied to communications between all corporate employees and corporate counsel.
Issue. Whether the attorney-client privilege is applicable to communications between corporate employees and corporate counsel?
Held. Yes. Communications by Respondent’s employees to counsel are covered by the attorney-client privilege. The attorney-client privilege applies when the client is a corporation. The privilege must extend beyond those employees who are in the control group because they may possess information needed by the corporation’s lawyers. Thus, the court rejects the control group test as it frustrates the purpose by discouraging the communication of relevant information by employees of the client to the attorney seeing legal advice for the client corporation. The control group test also makes it more difficult to convey full and frank legal advice to the employees who put the corporation’s policy into effect. The Government fails to demonstrate a sufficient showing of necessity and unavailability by other means in order to justify the production of materials protected by the work product doctrine. No showing of necessity can overcome protection of work product, which is based on oral statement of witnesses. Here, the Government needed to prove a far stronger showing of necessity to overcome the work product doctrine.
An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.View Full Point of Law