Civil Procedure Keyed to Marcus
Upjohn Co. v. United States
ProfessorTodd Berman
CaseCast™ – "What you need to know"
Facts
Respondent, manufacturers and sells pharmaceuticals. Independent accountants discovered that one of Respondent’s foreign subsidiaries made payments to or for the benefit of foreign government officials in order to secure governmental business. After in-house counsel had discussions with outside counsel, it was decided that an internal investigation would be conducted to determine the terms of the payments. Respondent voluntarily submitted a preliminary report to the Securities and Exchange Commission on Form 8-K disclosing certain questionable payments. A subsequent report was filed with the Internal Revenue Service (IRS), which conducted an investigation. The IRS issued a summons demanding the production of files used in the company’s internal investigation. The Respondent declined to produce the documents on the grounds that they were protected from disclosure by the attorney-client privilege and it constituted work product of attorneys prepared in anticipation of litigation. The United States then filed a petition seeking enforcement of the summons and the district court held that the summons should be enforced. Respondents appealed and the court of appeals rejected the district court’s finding that a waiver of the attorney-client privilege occurred, but agreed that the privilege did not apply to the extent the communications were made by officers and employees not responsible for directing the company’s actions in response to legal actions.
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