The Civil Litigator
| Publication year | 1981 |
| Pages | 529 |
| Citation | Vol. 10 No. 3 Pg. 529 |
1981, March, Pg. 529. The Civil Litigator
On January 31, 1981, the United States Supreme Court announced its decision in Upjohn Company v. United States.(fn1) Justice Rehnquist delivered the opinion of the Court, joined by Justices Brennan, Stewart, White, Marshall, Blackmun, Powell and Stevens. Chief Justice Burger filed a concurring opinion. Upjohn deserves the attention of the Colorado bench and bar.
In 1962 the decision in Radiant Burners, Inc. v. American Gas Ass'n(fn3) attacked the assumption of the bar that the attorney-client privilege applied to corporations. The district court there held that the privilege did not apply to a corporation. This decision was reversed,(fn4) but it attracted widespread attention and discussion regarding the existence and scope of the corporate attorney-client privilege.
Thereafter, two primary rules regarding the corporate attorney-client privilege developed in the federal courts: the "control group test," and the "subject matter test." In Natta v. Hogan,(fn5) Circuit Judge Breitenstein recognized the existence of the privilege with regard to corporations, concluded that it applied to both in-house and outside counsel,(fn6) and then without discussion adopted the "control group test," which the Tenth Circuit held to be as follows:
We believe that the test is whether a person has authority to control, or substantially participate in, a decision regarding action to be taken on the advice of a lawyer, or is an authorized member of a group that has such power.(fn7)
Until Upjohn, the "control group test" was the predominate test applied in the federal system.(fn8) However, in Harper & Row Publishers, Inc. v. Decker,(fn9) the Seventh Circuit declined to accept the "control group test" and adopted instead what has become known as the "subject matter test." In this per curiam decision the court expanded the spectrum of employees in a position to speak for a company and stated:
We conclude that an employee of a corporation, though not a member of its control group, is sufficiently identified with the corporation so that his communication to the corporation's attorney is privileged where the employee makes the communication at the direction of his superiors in the corporation and where the subject matter upon which the attorney's advice is sought by the corporation and dealt with in the communication is the performance by
the employee of the duties of his employment.(fn10)
Thereafter, in Diversified Industries, Inc., v. Meredith, the Eighth Circuit Court of Appeals chose the "subject matter" test with certain additional qualifications.(fn11)
The attorney-client privilege in Colorado is governed by C.R.S. 1973, § 13-90-107(1)(b) which states:
An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney's secretary, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.
The Colorado statute is a codification of the common law attorney-client privilege and, since the decision in A v. District Court in 1977, there has been no question that privilege applies to corporations in Colorado.(fn12) To date, the Colorado Supreme Court has declined to deal with the client."(fn13) Rule 501 of the Colorado Rules of Evidence (CRE.)(fn14) does not appear to change the meaning of this statute as interpreted by the courts of Colorado.
Upjohn manufactures and sells pharmaceuticals in the United States and in foreign countries. In 1976, Upjohn's independent accountants told Mr. Thomas, an officer and the general counsel of Upjohn, that they had discovered that one of Upjohn's foreign subsidiaries had made payments to or for the benefit of...
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