Beyond Upjohn: Achieving Certainty by Expanding the Scope of the Corporate Attorney-Client Privilege

ly formulated and unvarying 'test' will necessarily enable courts to decide questions such as this with mathematical precision." 109 Ironically, the Upjohn Court stated that "[a]n uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all." 10 But as Chief Justice Burger noted in his concurrence, the majority did not "clarify aspects of the law of privileges properly before [it]." I Rather than minimizing the confusion, the Court created even more uncertainty."1 The absence of any discernible guidelines is likely to make the task of determining whether communications are privileged extremely difficult for courts. Indeed, the two post-Upjohn decisions that deal squarely with the scope of the corporate attorney-client privilege reflect this confusion. In Baxter Travenol Laboratories, Inc. v. Lemay,1 3 the District Court for the Southern District of Ohio stated that "one searches the [Upjohn] Court's Opinion in vain for some substituted guideline which might enhance the predictability of the privilege.""14 Rather than applying any analytical test to determine the existence of the privilege, the Baxter court compared the (a) the communications to counsel were made to secure legal advice, (b) the employees "were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice," (c) the communications related to the scope of the employees' duties, and (d) were" 'highly confidential,' " id., the Upiohn facts also meet the criteria in In re Ampicillin Antitrust Litig., 81 F.R.D. 377, 385 (D.D.C. 1978). 109. 449 U.S. at 393. 110. Id. 111. Id. at 403-04 (Burger, C.J., concurring in part and concurring in the judgment). Chief Justice Burger criticized the majority's failure to establish guidelines, and set forth his own alternative test to discern the scope of the corporate attorneyclient privilege. Id. at 402-03. 112. In his concurrence, Chief Justice Burger noted that the majority's statement that the failure to establish guidelines " 'may to some slight extent undermine desirable certainty' . . . neither minimizes the consequences of continuing uncertainty and confusion nor harmonizes the inherent dissonance of acknowledging that uncertainty while declining to clarify it within the frame of issues presented." Id. at 404 (Burger, C.J., concurring in part and concurring in the judgment). 113. 89 F.R.D. 410 (S.D. Ohio 1981). In Baxter, the defendants left the plaintiffs' employ and established a competing business. In response, the plaintiffs brought suit for the defendants' breach of their employment contracts, breach of their fiduciary duties and for wrongful appropriation of the plaintiffs' confidential information. One of these former employees, Warnick, was hired to act as a litigation consultant by the plaintiff corporation, and informed plaintiffs' counsel of the details of the defendants' misappropriation of plaintiff's business secrets. When the defendants sought discovery of Warnick's disclosures, the plaintiffs refused, claiming the protection of the attorney-client privilege. Id. at 412. The court upheld the claim of privilege. Id. at 414. 114. Id. at 413. 1201