Professional Responsibility Keyed to Hazard
Upjohn Co. v. United States
ProfessorTodd Berman
CaseCast™ – "What you need to know"
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*Case Brief Anatomy includes: Brief Prologue, Complete Case Brief, Brief Epilogue
- The Brief Prologue provides necessary case brief introductory information and includes:
- Topic: Identifies the topic of law and where this case fits within your course outline.
- Parties: Identifies the cast of characters involved in the case.
- Procedural Posture & History: Shares the case history with how lower courts have ruled on the matter.
- Case Key Terms, Acts, Doctrines, etc.: A case specific Legal Term Dictionary.
- Case Doctrines, Acts, Statutes, Amendments and Treatises: Identifies and Defines Legal Authority used in this case.
- The Case Brief is the complete case summarized and authored in the traditional Law School I.R.A.C. format. The Pro case brief includes:
- Brief Facts: A Synopsis of the Facts of the case.
- Rule of Law: Identifies the Legal Principle the Court used in deciding the case.
- Facts: What are the factual circumstances that gave rise to the civil or criminal case? What is the relationship of the Parties that are involved in the case. Review the Facts of this case here:
Upjohn (Defendant), a manufacturer and seller of pharmaceuticals, learned during an audit of one of its foreign subsidiaries that certain payments had been made to foreign government officials in order to secure government business. Defendant decided to perform an internal investigation. As part of this investigation, Defendant attorneys prepared a letter including a questionnaire, which was sent to all of Defendant’s foreign “managers.” This letter indicated that Defendant’s chairman of the board had asked its general counsel to investigate the existence, nature, and magnitude of any payments Defendant made to any foreign employee or foreign government official. Managers were instructed to keep the investigation confidential and discuss it only with other Upjohn (Defendant) employees on a “need-to-know” basis. The responses were to be sent directly to Defendant’s general counsel. As part of the investigation, counsel interviewed the questionnaire recipients in addition to other Defendant employees. After Defendant filed an 8-K with the SEC detailing certain questionable payments, a copy of which was sent to the IRS (Plaintiff), special agents for the IRS (Plaintiff) began to investigate the tax consequences of the payments. As part of the IRS (Plaintiff) investigation, Plaintiff issued and served Defendant with a summons that required production of all files related to Defendant’s internal investigation. Defendant refused to produce its questionnaires and responses, and also its counsel’s notes and memos from their interviews, based on attorney-client and work product privileges. The district court agreed with Defendant and denied enforcement of the summons. However, the court of appeals reversed on the grounds that the work product privilege was never available in tax enforcement proceedings and that the attorney-client privilege extended only to communications between corporate counsel and the corporation’s “control group.” A writ of certiorari was issued by the Supreme Court
- Issue(s): Lists the Questions of Law that are raised by the Facts of the case.
- Holding: Shares the Court's answer to the legal questions raised in the issue.
- Concurring / Dissenting Opinions: Includes valuable concurring or dissenting opinions and their key points.
- Reasoning and Analysis: Identifies the chain of argument(s) which led the judges to rule as they did.
- The Brief Prologue closes the case brief with important forward-looking discussion and includes:
- Policy: Identifies the Policy if any that has been established by the case.
- Court Direction: Shares where the Court went from here for this case.