Professional Responsibility Keyed to Hazard
Upjohn Co. v. United States
Facts
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
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