1108

Yes, they are privileged under the Upjohn test. This is a communication by an employee at the direction of the corporation concerning corporate business to an attorney hired by the corporation and intended by the corporation to be confidential.

Questions? Email tanford@indiana.edu, and refer to 1108.

Assume that after investigating the matter, outside counsel prepares a report suggesting that the dumping was illegal, and recommending that corporate employees should be instructed not to discuss the matter with anyone from the EPA. Is the report privileged?

Think through this one carefully, because the answer is complicated, and then click here when you think you know the answer.