What is the “Need to Know” Standard?

February 3, 2016

Under the majority Upjohn approach, the attorney-client privilege can protect lawyers’ communications with any level of corporate client employee — if the lawyers need the employees’ factual information before giving their corporate clients legal advice. Upjohn Co. v. United States, 449 U.S. 383 (1981). Upjohn focuses on clients’ communications of facts to lawyers, not lawyers’ communications of legal advice to clients. The latter communications implicate the “need to know” standard. The Upjohn standard expands corporations’ privilege protection, while the “need to know” standard constricts it.

In EEOC v. Texas Roadhouse, Inc., the court articulated the unfortunate but widely accepted principle that privileged intra-corporate “[c]ommunications retain their privileged status if relayed to other employees or officers of the corporation who need to know the information. When the communications are repeated to employees who do not need the information to carry out their work or make decisions, the privilege is lost.” Civ. A. No. 11-cv-11732-DJC, 2015 U.S. Dist. LEXIS 161929, at *5-6 (D. Mass. Dec. 2, 2015).

At first blush, this “need to know” standard seems inconsistent with Upjohn. An example might explain the difference. A company’s lawyer can have an Upjohn-protected interview with a company’s employee who happened to see a visitor fall in the lobby. But that employee does not “need to know” the lawyer’s legal advice about the company’s possible liability or defenses. The “need to know” standard does not make much sense — it can force a corporation to provide a litigation adversary purely internal privileged communications simply because a few extra employees (bound by their own confidentiality duty) happened to also receive those communications.