Evidentiary Privilege: Help for Corporations? The Supreme Court Rejects the Control Group Test: Strengthens the Work-Product Doctrine
Upjohn Co. v. United States, 449 U.S. 383 (1981).
The attorney-client privilege, and its application to corporations, has long been a source of confusion in the federal courts. The disorder stems from the competing interests arising between the liberal scope of discovery and the secrecy important to the attorney-client privilege. The attorney-client privilege has been viewed as an exception to the general rule that the scope of discovery is to be liberally construed in order to provide all parties with information essential to proper litigation on all facts. Even as an exception, however, the privilege has importance of its own in the dissemination of information.
Although confidential communications may be relevant, their disclosure may impair the social good derived from the proper performance of the functions of lawyers for their clients. Only a fully informed lawyer can render effective legal advice. Unless clients are certain information they supply to their attorneys will not be discovered and used against them, it is unlikely lawyers will receive full information.
Another recognized exception to the broad scope of discovery is the work-product doctrine. Absent an adverse party's substantial need for materials in preparation of his case, the doctrine protects against disclosure of any memoranda, notes, or working papers created by an attorney in anticipation of litigation. In addition, an attorney need not reveal his mental impressions, conclusions, opinions, or legal theories concerning the litigation. The work-product doctrine is based primarily on the right of a lawyer to enjoy privacy while preparing a case for litigation. While still an important function in the fair-administration of justice, the work-product doctrine, like the attorney-client privilege, runs head on against the goals of liberal discovery.
"Evidentiary Privilege: Help for Corporations? The Supreme Court Rejects the Control Group Test: Strengthens the Work-Product Doctrine,"
University of Dayton Law Review: Vol. 7:
1, Article 13.
Available at: https://ecommons.udayton.edu/udlr/vol7/iss1/13