Every privilege analysis should start with determining the applicable law. In the corporate context, federal courts handling federal question cases and nearly every state follow the Upjohn standard. Upjohn v. United States, 449 U.S. 383 (1981). Under this standard, the privilege can protect a corporation’s lawyer’s communications with any corporate employee possessing information the lawyer needs. A handful of states continue to follow the pre-Upjohn “control group” standard – under which the privilege generally protects only communications with upper-level corporate management.
In Harris Management, Inc. v. Coulombe, 2016 ME 166, ¶ 15, —A.3d —, Maine’s highest court reaffirmed Maine’s reliance on the old “control group” standard – extending privilege protection only to employees (usually officers) who direct the corporation’s response to its lawyers’ legal advice, and other individuals with authority to make corporate decisions. Although Maine corporations feel the main brunt of this narrow approach, corporations from Upjohn states might also lose their privilege if they are sued in Maine.
In some cases, a choice of law analysis will result in application of the narrow “control group” corporate privilege standard. In other cases, courts applying other states’ privilege law relieve corporations of that troublesome standard. Next week’s Privilege Point will describe such a decision from another “control group” hold-out state – Illinois. Decided on the same day as Harris Management, the decision looked outside Illinois for applicable privilege law.