26.18 - 2. Upjohn Decision

JurisdictionNew York

2. Upjohn Decision

The primary case deciding this issue in the federal courts, and subsequently adopted in some form by many states, is Upjohn Co. v. United States.3770 In Upjohn, the Court considered a case in which the court below applied the control group test. First, the Supreme Court reaffirmed that the “privilege applies when the client is a corporation” and acknowledged the complexities associated with applying the privilege to corporations.3771 Then the Court rejected the control group test as too restrictive and adopted the subject matter test. The Court cited the following reasons for this action:

While senior management may ultimately be responsible for acting on any legal advice, an attorney still needs to gather facts before formulating an opinion.3772

The individuals who are...

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