Recognizing the Upjohn Doctrine’s Subtlety

October 31, 2007

All but a handful of states follow the Upjohn doctrine, which protects as privileged communications between a corporation’s lawyer and any employee possessing information that the lawyer needs to provide legal advice to the corporation. The Upjohn doctrine sometimes involves a subtle analysis.

In Sims v. Roux Laboratories, Inc., Civ. A. No. 06-10454, SECTION: I/5, 2007 U.S. Dist. LEXIS 65331 (E.D. La. Aug. 31, 2007), an age discrimination plaintiff filed a complaint against Roux which contained several paragraphs disclosing the substance of her conversations with Roux’s lawyer. Roux moved to strike those paragraphs, as improperly revealing privileged communications. The court distinguished between (1) communications between the plaintiff and Roux’s lawyer about another employee’s age discrimination lawsuit and (2) communications dealing with plaintiff’s own allegations of age discrimination ‑‑ which she raised during her communications with Roux’s lawyer. The court held that the former communications deserved privilege protection (and thus should be stricken from plaintiff’s complaint), while the latter did not deserve privilege protection (because they were not made “for the purpose of obtaining or providing legal advice to the corporation“). Id. at *10 (emphasis in original).

Corporations’ lawyers should remember that the privilege might apply differently to different portions of even the same conversation with a corporate employee.