Court Strictly Applies Upjohn Standard

May 18, 2005

In 1981, the United States Supreme Court articulated the requirements for applying the attorney-client privilege to communications between a company’s lawyers and those below the company’s “control group.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Nearly 25 years later, courts continue to apply Upjohn’s standard – some with surprising strictness.

In Deel v. Bank of America, N.A., No. 7:04-cv-00150-jct (W.D. Va. filed Mar. 31, 2005), the court analyzed the privilege’s applicability to the Bank’s communications with various employees, including questionnaires that employees completed and sent to the Bank’s lawyers. The court refused to protect the completed questionnaires, finding that the Bank had not advised the employees to keep communications confidential, and “did not clarify to the employees completing the questionnaire that it needed the information to obtain legal advice.” Id., slip op. at 10. The court found the latter omission to be a “fatal flaw” to the Bank’s privilege assertion. Id.

Although in most states the Upjohn decision makes the privilege available to communications with any level of corporate employee, corporations must still satisfy the Upjohn standards.