Upjohn Co. v. United States

449 U.S. 383 (1981)

Quick Summary

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Upjohn Co. (defendant) faced an IRS summons for documents related to an internal investigation into illegal payments. Upjohn claimed attorney-client privilege and work-product protection against disclosure.

The dispute centered on whether these protections applied to communications between company employees and counsel. The Supreme Court ruled in favor of Upjohn, affirming both privileges and setting a precedent for corporate internal investigations.

Facts of the Case

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Upjohn Co. (defendant), a pharmaceutical manufacturer, conducted an internal investigation after an audit revealed illegal payments to foreign government officials by its employees. Upjohn’s General Counsel, Gerard Thomas, sought to gather information by sending a questionnaire to employees and conducting interviews. This was part of an effort to provide legal advice on potential issues related to securities, tax laws, and litigation risks.

The Internal Revenue Service (IRS) later issued a summons for these internal documents. Upjohn refused to produce them, citing attorney-client privilege and the work-product doctrine. The case escalated through the legal system, with lower courts rejecting Upjohn’s claim of privilege, leading to an appeal to the United States Supreme Court.

Procedural Posture and History

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  1. An audit revealed illegal payments by Upjohn employees.
  2. Upjohn’s General Counsel conducted an internal investigation.
  3. The IRS issued a summons for the documents gathered during the investigation.
  4. Upjohn refused to comply, citing attorney-client privilege and work-product doctrine.
  5. The district court enforced the IRS summons.
  6. The United States Court of Appeals for the Sixth Circuit affirmed the district court’s decision.
  7. Upjohn appealed to the United States Supreme Court.

I.R.A.C. Format


Issue Icon
  • Whether the attorney-client privilege protects communications between Upjohn employees and the company’s counsel from being disclosed to the IRS.
  • Whether the work-product doctrine applies in tax summons enforcement proceedings.

Rule of Law

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The attorney-client privilege is designed to encourage full and frank communication between attorneys and their clients to promote broader public interests in the observance of law and administration of justice. The work-product doctrine protects materials prepared by attorneys in anticipation of litigation from discovery.

Reasoning and Analysis

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The Supreme Court recognized that employees at all levels might possess information necessary for legal counsel to advise a corporation. The ‘control group test,’ which limits privilege to top management, was deemed inadequate as it could discourage communication vital for legal advice. Thus, communications made by Upjohn employees for the purpose of securing legal advice were protected by attorney-client privilege.

Additionally, the Court acknowledged that the work-product doctrine protects documents and tangible things prepared by an attorney in anticipation of litigation. The Court disagreed with lower courts’ rulings and recognized that this doctrine does apply to tax summons enforcement proceedings, thus providing protection for Upjohn’s internal investigation documents.


Conclusion Icon

The Supreme Court held that the attorney-client privilege covers communications between Upjohn employees and company counsel, and the work-product doctrine is applicable in tax summons enforcement proceedings.

Key Takeaways

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  1. The attorney-client privilege extends beyond top management to include communications by employees at all levels when seeking legal advice for the corporation.
  2. The work-product doctrine is applicable in IRS tax summons enforcement proceedings, protecting materials prepared by attorneys in anticipation of litigation.
  3. Corporate internal investigations are protected under attorney-client privilege and work-product doctrine, ensuring confidentiality in legal advice and litigation preparation.

Relevant FAQs of this case

What are the criteria for communication to be protected under attorney-client privilege?

Communication must be made between a client and an attorney, expressly for the purpose of seeking or obtaining legal advice, and must be intended to remain confidential. The privilege is not limited to litigation contexts; it also applies to legal advice given in business or personal matters.

  • For example: An email exchange between a company’s financial analyst and its legal department seeking advice on regulatory compliance is protected, provided the communication was meant to be private and was for the purpose of securing legal counsel.

How does an attorney distinguish between materials covered by the work-product doctrine and those that are discoverable?

Materials are protected under the work-product doctrine if they are prepared in anticipation of litigation or for trial by or for another party or its representative. This includes documents and tangible things created by attorneys, consultants, sureties, indemnitors, insurers, or agents. Conversely, materials prepared in the ordinary course of business or that do not reflect strategic thinking are typically not protected.

  • For example: Notes taken by an attorney during a witness preparation session for an upcoming trial are protected, whereas documents generated as part of regular employee training would not be.

Can the scope of attorney-client privilege extend to communications with former employees?

Attorney-client privilege can extend to communications with former employees if the communication pertains to the former employee’s actions within the scope of their employment and is necessary to facilitate the provision of legal advice to the company.

  • For example: A meeting between a company’s lawyer and a former employee to discuss events that occurred during their tenure relevant to pending litigation would be covered by attorney-client privilege.


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