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Upjohn Co. v. United States

Supreme Court of the United States

November 5, 1980, Argued ; January 13, 1981, Decided

No. 79-886

Opinion

 [*386]  [***589]  [**681]    JUSTICE REHNQUIST delivered the opinion of the Court.

 We granted certiorari in this case to address important questions concerning the scope of the attorney-client privilege in the corporate context and the applicability of the work-product doctrine in proceedings to enforce tax summonses. 445 U.S. 925. With respect to the privilege question the parties and various amici have described our task as one of choosing between two "tests" which have gained adherents in the courts of appeals. We are acutely aware, however, that we sit to decide concrete cases and not abstract propositions of law. We decline to lay down a broad rule or series of rules to govern all conceivable future questions in this area, even were we able to do so. We can and do, however, conclude that the attorney-client privilege [****9]  protects the communications involved in this case from compelled disclosure and that ] the work-product doctrine does apply in tax summons enforcement proceedings.

Petitioner Upjohn Co. manufactures and sells pharmaceuticals here and abroad. In January 1976 independent accountants conducting an audit of one of Upjohn's foreign subsidiaries discovered that the subsidiary made payments to or for the benefit of foreign government officials in order to secure government business. The accountants so informed petitioner Mr. Gerard Thomas, Upjohn's Vice President, Secretary, and General Counsel. Thomas is a member of the Michigan and New York Bars, and has been Upjohn's General Counsel for 20 years. He consulted with outside counsel and R. T. Parfet, Jr., Upjohn's Chairman of the Board. It was decided that the company would conduct an internal investigation of what were termed "questionable payments." As part of this investigation the attorneys prepared a letter containing a questionnaire which was sent to "All Foreign General and Area Managers" over the Chairman's signature. The letter  [*387]  began by noting recent disclosures that several American companies made "possibly illegal"  [****10]  payments to foreign government officials and emphasized that the management needed full information concerning any such payments made by Upjohn. The letter indicated that the Chairman had asked Thomas, identified as "the company's General Counsel," "to conduct an investigation for the purpose of determining the nature and magnitude of any payments made by the Upjohn Company or any of its subsidiaries to any employee or official of a foreign government." The questionnaire sought detailed information concerning such payments. Managers were instructed to treat the investigation as "highly confidential" and not to discuss it with anyone other than Upjohn employees  [***590]  who might be helpful in providing the requested information. Responses were to be sent directly to Thomas. Thomas and outside counsel also interviewed the recipients of the questionnaire and some 33 other Upjohn officers or employees as part of the investigation.

On March 26, 1976, the company voluntarily submitted a preliminary report to the Securities and Exchange Commission on Form 8-K disclosing certain questionable payments. 2 A copy of the report was simultaneously submitted to the Internal Revenue Service,  [****11]  which immediately began an investigation to determine the tax consequences of the payments. Special agents conducting the investigation were given lists by Upjohn of all those interviewed and all who had responded to the questionnaire. On November 23, 1976, the Service issued a summons pursuant to 26 U. S. C. § 7602 demanding production of:

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449 U.S. 383 *; 101 S. Ct. 677 **; 66 L. Ed. 2d 584 ***; 1981 U.S. LEXIS 56 ****; 49 U.S.L.W. 4093; 81-1 U.S. Tax Cas. (CCH) P9138; 1980-81 Trade Cas. (CCH) P63,797; Fed. Sec. L. Rep. (CCH) P97,817; 47 A.F.T.R.2d (RIA) 523; 30 Fed. R. Serv. 2d (Callaghan) 1101

UPJOHN CO. ET AL. v. UNITED STATES ET AL.

Prior History:  [****1]  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

Disposition:  600 F.2d 1223, reversed and remanded.

CORE TERMS

communications, employees, attorney-client, interviews, disclosure, work-product, court of appeals, legal advice, questionnaire, questions, control group, discovery, privileged, summons, advice, courts, responses, work product, confidential, proceedings, mental impressions, outside counsel, oral statement, legal problem, common law, disclosing, witnesses, cases

Civil Procedure, Privileged Communications, Work Product Doctrine, General Overview, Evidence, Privileges, Attorney-Client Privilege, Elements, Scope, Psychotherapist-Patient Privilege, Labor & Employment Law, Employment Relationships, At Will Employment, Definition of Employees, Discovery, Methods of Discovery, Inspection & Production Requests, Pleadings, Service of Process, Discovery & Disclosure, Relevance of Discoverable Information