Upjohn Co. v. United States, 449 U.S. 383 (1981)
Upjohn Co. v.
Does the attorney-client privilege in the corporate context protect communications by non-control group employees to corporate counsel made for the purpose of securing legal advice for the corporation, and are counsel's interview notes and questionnaires from an internal investigation protected by the attorney work-product doctrine against an IRS summons absent a showing of substantial need and undue hardship?
Under federal common law of privilege, the attorney-client privilege protects confidential communications between corporate counsel and corporate employees when the communications are made at the direction of corporate superiors for the purpose of securing legal advice for the corporation, concerning matters within the scope of the employees' corporate duties, and are treated as confidential. The privilege protects communications, not underlying facts. Separately, under the work-product doctrine (Hickman v. Taylor and Federal Rule of Civil Procedure 26(b)(3)), materials prepared by or for attorneys in anticipation of litigation are protected from discovery; factual work product may be discovered only upon a showing of substantial need and an inability without undue hardship to obtain the substantial equivalent by other means, while opinion work product reflecting an attorney's mental impressions, conclusions, opinions, or legal theories receives special, heightened protection that is rarely overcome. These protections apply in IRS summons enforcement proceedings.
Yes. The Supreme Court rejected the control group test and held that the attorney-client privilege extends to communications by corporate employees made to corporate counsel for the purpose of securing legal advice for the corporation. The Court also held that counsel's interview notes and related internal-investigation materials are protected work product; the IRS could not compel their production absent the required showing of substantial need and undue hardship, which the government did not make. The judgment of the court of appeals was reversed and the case remanded.
Upjohn is foundational for corporate privilege and internal investigations. It rejects the rigid control group test and protects communications by lower-level employees to corporate counsel when made to secure legal advice, facilitating candid and efficient fact-gathering within corporations. The decision also powerfully reinforces work-product protection, especially for attorney opinion work product, and confirms that these protections apply in IRS summons proceedings. In practice, Upjohn informs how counsel conducts interviews, memorializes findings, and communicates with regulators, and it has given rise to the widespread use of Upjohn warnings in employee interviews to clarify that counsel represents the corporation, not the individual employee.