Troubling Decision Cites Upjohn But Does Not Apply It

September 27, 2006

Under the well-known Supreme Court decision in Upjohn Co. v. United States, 449 U.S. 383 (1981), the Supreme Court held that the attorney-client privilege can protect communications between a company’s lawyer and any company employee, if the lawyer needs the employee’s information to adequately advise the company. All but a handful of states now follow the Upjohn standard.

In Cravalho v. Merced City School District, No. 1:05cv0669 OWW DLB, 2006 U.S. Dist. LEXIS 47116 (E.D. Cal. July 3, 2006), the court dealt with the privilege’s applicability to a school district lawyer’s communications with several district employees. Although citing Upjohn, the court rejected the district’s privilege claim, “because the employees were not seeking legal advice from the District’s attorney.” Id. at *7. Although the court allowed the district to withhold the lawyer’s “conclusions and notes” (as protected work product), the court ordered the district to produce recorded statements of the employees. Id.

This opinion denies privilege protection for communications that the centuries-old attorney-client privilege and Upjohn considered the most protected in the corporate context: employees’ statements of fact to the company’s lawyer that enable the lawyer to properly advise the company.