States Continue to Debate the “Control Group” Doctrine versus Upjohn

April 28, 2010

Traditionally, the attorney-client privilege only protected a company lawyer’s communications with company executives in the “control group” – who would act on the lawyer’s advice. The United States Supreme Court rejected this limitation in Upjohn Co. v. United States, 449 U.S. 383 (1981), and generally extended the federal common law attorney-client privilege to any company employee possessing facts that the company’s lawyer needs – regardless of the employee’s place in the corporate hierarchy. All but a handful of states have also adopted the Upjohn standard.

In Lindley v. Life Investors Insurance Co. of America, Case No. 08-CV-379-CVE-PJC, 2010 U.S. Dist. LEXIS 13821 (N.D. Okla. Feb. 17, 2010), the court dealt with attorney-client privilege issues in a corporate setting. The court confessed that it “could not find, nor have the parties cited, any Oklahoma cases identifying the persons representing the corporate client for purposes of attorney-client privilege and attorney work product” – and finally concluded that “Oklahoma appears to adopt the ‘control group’ test.” Id. at *58-59.

It would be a mistake for any company lawyer to assume that every state follows the more expansive Upjohn approach.