Most states formerly applied what is called the “control group” test ‑‑ under which the attorney‑client privilege protected communications between a company’s lawyer and only those executives in the “control group” (or those assisting them). The U.S. Supreme Court dramatically expanded the privilege in Upjohn, recognizing that the privilege can protect a company lawyer’s communications with any corporate employee, if the employee has factual information the lawyer needs. Even after Upjohn, some states follow the “control group” test ‑‑ Illinois is the most prominent hold-out.
Lawyers holding their breath about Alaska’s attitude now have additional guidance. In Manumitted Cos. v. Tesoro Alaska Co., No. 3:05-cv-185 TMB, 2006 U.S. Dist. LEXIS 57658, at *7 (D. Alaska Aug. 16, 2006), the court explained that “Alaska appears to have adopted the ‘control group’ test of determining who in a corporation is a ‘representative’ for purposes of being able to claim the privilege” (emphasis added). The court was not able to tell for sure, because “[t]he ‘control group’ concept does not appear to be extensively addressed in reported Alaska cases.” Id. at *8.
Before assuming that every state but Illinois has moved to the Upjohn standard, lawyers should check the law ‑‑ whether communicating in Springfield or in Sitka.