Upjohn Co. v. United States

449 U.S. 383 (1981)


In January 1976, independent accountants discovered that one of Upjohn's (D) foreign subsidiaries had made payments to foreign government officials to get business. D's counsel investigated these possible illegal payments. The investigation included interviews of all foreign general and area managers, various other D employees, and questionnaires to the foreign managers. The employees were told that their answers would be 'highly confidential.' All the responses were forwarded to D’s general counsel. With all the reports finished, D sent a report to the SEC. The Internal Revenue Service conducted its own investigation to determine the payments' tax consequences and learned about these interviews. The IRS demanded that D produce all relevant files. These files included the questionnaires and memoranda of the interviews. D did not want to give up these documents, claiming that not only were they privileged, but they were also protected because they were work products of an attorney in anticipation of litigation. The IRS filed a petition in district court seeking enforcement of its summons. The district court accepted a magistrate’s recommendation that the summons should be enforced. D appealed the summons' enforcement. The 6th Circuit affirmed that officers and employees not involved with the legal advice were not 'clients,' so any communications concerning them could not come within the attorney-client privilege as the communications were made by officers and agents outside the control group. The case was remanded to district court to determine which employees fell within this group. The district court was also not supposed to consider the work product doctrine because the 6th Circuit found that it was inapplicable to administrative summonses. D appealed.