Upjohn Co. v. United States
Citation: 449 U.S. 383 (U.S. Supreme Court, 1981)
Facts
Upjohn’s general counsel conducted an internal investigation into whether company employees had made improper payments to foreign government officials in violation of the Foreign Corrupt Practices Act. Counsel sent questionnaires to and interviewed mid- and lower-level employees worldwide. The IRS sought to obtain the questionnaires and interview notes through a summons, arguing they were not protected by attorney-client privilege because the employees were not members of the corporation’s “control group” (the narrow test applied by the Sixth Circuit).
Issue
Does the attorney-client privilege protect confidential communications between a corporation’s attorneys and non-control-group employees made for the purpose of giving legal advice to the corporation?
Holding
The Supreme Court unanimously rejected the “control group” test and held that the attorney-client privilege protected the communications. The privilege applies to communications between corporate employees and counsel when the communications were made at the direction of corporate superiors, concerned matters within the scope of the employees’ duties, and were made to enable counsel to give legal advice to the corporation. The Court declined to lay down a bright-line test, instead adopting a functional, fact-specific approach.
Rule
The attorney-client privilege in the corporate context extends beyond the “control group” to protect confidential communications between corporate counsel and employees (at any level) when: (1) the communication was made at the direction of management to enable legal advice; (2) the information concerned matters within the employee’s corporate duties; (3) the employee knew the communication was for legal advice; and (4) the communication was kept confidential. Work product doctrine also protects attorney notes and memoranda prepared in anticipation of litigation.
Significance
Upjohn is the foundational case on attorney-client privilege for corporate clients and is essential for understanding how privilege operates in organizational settings. It rejected the narrow control group test in favor of a broader subject matter test, enabling corporate counsel to conduct effective internal investigations. The case is also important for its treatment of the work product doctrine, confirming that attorneys’ mental impressions and legal strategies receive heightened protection even in the absence of litigation privilege protection.