Dissent in Upjohn Co. v. United States
449 U.S. 383 (1981) (1981) · Supreme Court of the United States
Upjohn rejected the narrow 'control group' test for the corporate attorney-client privilege and held that the privilege extends to communications between corporate counsel and lower-level employees when made for the purpose of obtaining legal advice for the corporation. The decision also clarified the scope of the work-product doctrine as applied to attorney interview memoranda in corporate investigations.
What was the dissent in Upjohn Co. v. United States?
Chief Justice Burger concurred separately, arguing that the Court should have adopted a clear rule rather than a flexible, case-by-case approach. He was concerned that the open-ended approach would generate uncertainty.
Case Overview
Facts
Upjohn Company, a pharmaceutical manufacturer, discovered that its foreign subsidiaries had made questionable payments to foreign government officials. The company's general counsel conducted an internal investigation, sending questionnaires to managers and conducting interviews with employees at all levels. When the IRS sought the questionnaires and interview notes during a tax investigation, Upjohn asserted attorney-client privilege and work-product protection.
Majority Holding
The Court rejected the control group test and held that the attorney-client privilege protects communications between corporate counsel and any employee, regardless of rank, when the communications are made at the direction of corporate superiors for the purpose of securing legal advice. The Court also held that the attorney's notes and memoranda from employee interviews were protected work product.
Majority Reasoning
Justice Rehnquist, writing for the majority, reasoned that the control group test frustrated the purpose of the privilege by discouraging the communication of relevant information by employees to corporate counsel. Lower-level employees often possess the most relevant information about corporate activities, and the privilege must extend to their communications to encourage full and frank disclosure to lawyers. The Court declined to adopt a rigid replacement test, instead applying the privilege based on the totality of the circumstances. The communications here were made by employees at counsel's direction, concerned matters within the scope of their employment, and were made for the purpose of obtaining legal advice for the corporation. The Court also found the interview notes constituted opinion work product, requiring a heightened showing of need for disclosure.
The Dissenting Opinion
Chief Justice Burger concurred separately, arguing that the Court should have adopted a clear rule rather than a flexible, case-by-case approach. He was concerned that the open-ended approach would generate uncertainty.
Key Quotes
“The control group test overlooks the fact that the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.”
“The privilege exists to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”
“In a corporation, it may be combative for a variety of its employees to communicate with attorneys in order for the corporation to obtain legal advice.”
Impact and Legacy
Upjohn is the controlling federal standard for corporate attorney-client privilege and has been enormously influential. By rejecting the control group test and extending the privilege to lower-level employees, the decision enabled corporations to conduct thorough internal investigations with the assurance of privilege protection. This has led to the modern practice of internal investigations by corporate counsel, which has become a cornerstone of corporate compliance and government enforcement cooperation.
Exam Relevance
Upjohn is tested in Evidence and Professional Responsibility courses. Exam questions often present an internal corporate investigation and ask students to determine which communications are privileged. Key issues include whether the employee was communicating at the direction of counsel, whether the communication concerned matters within the scope of employment, and whether the communication was made for the purpose of obtaining legal advice. Students should also address the work-product doctrine.
Study Tips
- Know the Upjohn factors: communication at counsel's direction, concerning matters within the scope of employment, for the purpose of obtaining legal advice, treated as confidential.
- Understand why the control group test was rejected: lower-level employees often have the most relevant information.
- Distinguish the corporate attorney-client privilege from the work-product doctrine -- they have different scopes, standards, and waiver rules.
- Be aware that some states still follow the control group test for state-law privilege questions.
Read the Full Case Analysis
View the complete brief for Upjohn Co. v. United States including full reasoning, doctrine, and study resources.
More Evidence Dissents
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Chief Justice Rehnquist, joined by Justice Stevens, concurred in part and dissented in part. He agreed that Frye was superseded but criticized the majority for going beyond the question presented and issuing abstract guidelines. He expressed concern that the majority's factors were vague and would prove difficult for trial judges to apply in practice.
Crawford v. Washington
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Chief Justice Rehnquist, joined by Justice O'Connor, concurred in the judgment but objected to overruling Roberts. He argued that the Roberts framework was workable and that the majority's testimonial approach would create significant uncertainty about what constitutes a 'testimonial' statement.
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Justice Thomas concurred in the judgment in Davis but dissented in Hammon, arguing that the primary purpose test was too broad and that only statements involving a degree of formality and solemnity -- such as affidavits, depositions, and prior testimony -- should be considered testimonial.
Ohio v. Roberts
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Justice Brennan, joined by Justice Marshall, dissented, arguing that the prosecution had not made a sufficient showing of unavailability. They contended the prosecution's efforts to locate Isaacs were inadequate, failing to check with her employer, school, or other contacts beyond her parents.
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513 U.S. 150 (1995) (1995)
Justice Breyer, joined by Chief Justice Rehnquist and Justices O'Connor and Thomas, dissented. He argued that the text of Rule 801(d)(1)(B) does not impose a premotive requirement and that the rule should be read to permit the admission of any prior consistent statement that is relevant to rebut a charge of fabrication, regardless of when it was made.