There can be little doubt that the most famous warning in the American legal system is the Miranda warning. Absent a Miranda warning or a valid waiver of rights, a court may find that the statements a defendant made during custodial interrogation were unconstitutionally obtained and are therefore subject to exclusion.

In the context of a corporate internal investigation, the closest analogue to a Miranda warning is the Upjohn warning—sometimes referred to as the "corporate Miranda." When conducting an employee interview as part of an internal investigation, corporate counsel typically warns the employee that counsel represents the employer and not the employee, that any privilege attaching to statements made during the interview belongs solely to the company, and that the company may waive the privilege and disclose the contents of the interview to third parties, including the government.

But what if corporate counsel does not provide an Upjohn warning? Individual employees and their counsel may be surprised to learn that, unlike the remedy afforded to a non-Mirandized defendant, the remedy afforded to an employee who did not receive an Upjohn warning is lacking. Although an employee may later assert privilege over the statements made during an unwarned interview, the leading federal court decisions on this issue show that the employee must overcome an exceedingly high burden in order for the privilege assertion to be upheld.