Under the commonly (but not universally) recognized Upjohn standard, a corporation's lawyer may engage in privileged communications with any level of corporate employee who has information the lawyer needs. But that favorable Upjohn standard is not self-executing – there is another condition lawyers must satisfy.
In Bobalik v. BJ's Restaurants, Inc., Case No. 3:19-CV-0661-RGJ-LLK, 2020 U.S. Dist. LEXIS 231289 (W.D. Ky. Dec. 9, 2020), plaintiff slipped and fell in a Louisville, Kentucky, restaurant. Not surprisingly, defendant restaurant claimed privilege and work product protection for the resulting investigation. Acknowledging that the Upjohn standard applied, the court nevertheless denied privilege protection – explaining that the restaurant "failed to demonstrate that the manager(s) who completed the investigation notes at issue were aware their statements were being elicited for the purpose of the BJ's Defendants obtaining legal advice." Id. at *12-13. The restaurant could not successfully assert privilege protection "[w]ithout showing such awareness." Id. at *13.
Presumably lawyers normally explain during such investigations why they are seeking information from their corporate client's employees (after reciting the Upjohn warning's first half – "I represent the company and I do not represent you"). But even a slip and fall case can remind lawyers not to say something sloppy like "I'm here from headquarters to interview you." Next week's Privilege Point will describe why the restaurant also lost its work product claim.
Published February 10, 2021.
