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ARTICLE · 03 JUNE 2013

Some States Still Haven't Decided Between The "Control Group" Standard And The Upjohn Standard

McGuireWoods LLP
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In Upjohn Co. v. United States, 449 U.S. 383 (1981), the court interpreted federal common law as extending privilege protection to communications between a company's lawyer and any level of employee, if that employee has facts the lawyer needs when advising the corporate client.

United StatesLitigation, Mediation & Arbitration
Thomas Spahn
Thomas Spahn

Before 1981, most states applied what is called the "control group" privilege standard for corporate communications -- extending privilege protection only to communications between the company's lawyer and members of upper management who act on the lawyer's advice. In that year, the United States Supreme Court took a totally different approach. In Upjohn Co. v. United States, 449 U.S. 383 (1981), the court interpreted federal common law as extending privilege protection to communications between a company's lawyer and any level of employee, if that employee has facts the lawyer needs when advising the corporate client.

Most states have moved to the Upjohn standard. Illinois is the chief remaining proponent of the "control group" standard. Remarkably, some states have still not decided which approach to take. In Maxtena, Inc. v. Marks, the federal district court explained that "[t]he Maryland Court of Appeals has not yet delineated a precise test for determining

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