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Preserving the Privilege In the Corporate Setting
With government oversight intensifying, internal investigations are an essential tool for companies evaluating whistleblower allegations, as well as an important part of due diligence in preparation for a business acquisition or sale. Assessing the risks and liabilities of a potential transaction requires frank and open communication between the parties, including legal counsel. Understanding the scope and limitations of this privilege in transactional settings and who "holds" it is vital to its preservation.
The U.S. Supreme Court's decision in Upjohn v. United States, 449 U.S. 383, 392-95 (1981), confirmed the attorney-client privilege for business entities. Upjohn extends the scope of the company's privilege to attorney-client communications with managers and directors, and employees. Corporations rely on this privilege when conducting sensitive internal investigations. As the Upjohn court itself noted, an investigation in which corporate attorneys can only talk to managers is unlikely to yield meaningful information. Although Upjohn set the standard for the application of the attorney-client privilege within a corporation, it did not provide guidance on whether, or when, the privilege passes from one corporate entity to another.
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