Every privilege analysis should start with determining which law applies. In the corporate context, federal courts handling federal question cases and nearly every state follow what is called the Upjohn standard.Upjohn v. United States, 449 U.S. 383 (1981). Under the Upjohn standard, the privilege can protect a corporation's lawyer's communications with any corporate employee possessing information the lawyer needs. A handful of states continue to follow the pre- Upjohn "control group" standard – under which the privilege only protects communications with upper-level corporate management.
In Harris Management, Inc. v. Coulombe, 2016 ME 166, ¶ 15, --- A.3d ---, Maine's highest court reaffirmed Maine's reliance on the old "control group" standard. Although corporations outside Maine dismiss concerns about that state's continued dedication to the "control group" test, they should worry about being sued there. A Maine court might apply its "control group" standard to communications occurring elsewhere.
Most lawyers correctly recognize that Illinois is the largest "control group" state hold-out. But other states employ only that narrow privilege protection in the corporate context. Next week's Privilege Point will address a Illinois federal court's decision decided the same day as Harris Management – but which took a surprisingly expansive privilege approach in a corporate setting.