Under Upjohn, federal privilege extends to communications with employees at any level where the communication concerns matters within their duties and was made for legal advice at the direction of superiors.
A minority of states apply a narrower control group test limiting privilege to senior decision-makers.
Alternative Names:
Organizational Privilege, Entity Privilege
Why it Matters?
The Upjohn and control group split determines which employee communications are protected, and it can produce opposite results on identical facts. In control group states, interviews with line employees who witnessed the events are unprotected, which changes internal investigation design substantially. Confirming which test governs before conducting an investigation is the practical requirement, since the protection cannot be retroactively created.
Frequently Confused with
Related terms
Frequently asked questions
What is the control group test?
Why does the distinction matter for investigations?
