Upjohn Co. v. United States
| Upjohn v. United States | |
|---|---|
| Argued November 5, 1980 Decided January 13, 1981 | |
| Full case name | Upjohn Company, et al. v. United States, et al. |
| Citations | 449 U.S. 383 (more) 101 S. Ct. 677; 66 L. Ed. 2d 584; 1981 U.S. LEXIS 56; 49 U.S.L.W. 4093; 81-1 U.S. Tax Cas. (CCH) ¶ 9138; 1980-81 Trade Cas. (CCH) ¶ 63,797; Fed. Sec. L. Rep. (CCH) ¶ 97,817; 47 A.F.T.R.2d (RIA) 523; 30 Fed. R. Serv. 2d (Callaghan) 1101 |
| Case history | |
| Prior | United States v. Upjohn Co., 600 F.2d 1223 (6th Cir. 1979); cert. granted, 445 U.S. 925 (1980). |
| Holding | |
| (1) District Court's test, of availability of attorney–client privilege, was objectionable as it restricted availability of privilege to those corporate officers who played “substantial role” in deciding and directing corporation's legal response; (2) where communications at issue were made by corporate employees to counsel for corporation acting as such, at direction of corporate superiors in order to secure legal advice from counsel, and employees were aware that they were being questioned so that corporation could obtain advice, such communications were protected; and (3) where notes and memoranda sought by government were work products based on oral statements of witnesses, they were, if they revealed communications, protected by privilege, and to extent they did not reveal communications, they revealed attorney's mental processes in evaluating the communications and disclosure would not be required simply on showing of substantial need and inability to obtain equivalent without undue hardship. | |
| Court membership | |
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| Case opinions | |
| Majority | Rehnquist, joined by Brennan, Stewart, White, Marshall, Blackmun, Powell, Stevens, Burger (parts I, III) |
| Concurrence | Burger |
Upjohn Co. v. United States, 449 U.S. 383 (1981), was a Supreme Court case in which the Court held that a company (in this case, the Upjohn company) could invoke the attorney–client privilege to protect communications made between company lawyers and non-management employees. In doing so, the Court rejected the narrower control group test that had previously governed many organizational attorney–client privilege issues. Under the control group test, only employees who exercised direct control over the managerial decisions of the company were eligible to have their communications with corporate lawyers protected. The case also expanded the scope of the work-product doctrine.
While the Upjohn decision did not explicitly mention a warning procedure, the case gave rise to a procedure called an "Upjohn warning", in which a company's lawyer explains that the lawyer represents the company and not the individual employee with whom the lawyer is dealing. This is intended to ensure that the employee understands that the company can waive the attorney-client privilege at any time and disclose the contents of the conversation between the lawyer and the employee, even if the employee objects. In subsequent cases, failure to give an Upjohn warning has led to the employee being able to claim privilege over communications with company lawyers.