26.21 - 5. Upjohn And The States

• Jurisdiction: New York

5. Upjohn and the States

The Upjohn decision settled the question of which test applies in federal courts. However, the states are still split. Many states have adopted the Upjohn subject matter test.³⁷⁸⁵ Other states, e.g., Illinois,³⁷⁸⁶ still apply the control group test. Other states have adopted their own tests. New York is one of these states.

In Niesig v. Team I,³⁷⁸⁷ the New York Court of Appeals rejected the control group test in favor of a middle ground test. This test only extends the privilege to “corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the corporation’s ‘alter egos’) or imputed to the...