By now, the concept of Upjohn warnings should be familiar to any counsel, whether in-house or external, who represents a corporation’s interests in an internal investigation. In a nutshell, an Upjohn warning is derived from the Supreme Court decision in Upjohn v. United States, 449 U.S. 383 (1981), and is a mechanism for establishing corporate privilege by which corporate counsel explains to the corporation’s officers and employees that when the individual officer or employee provides a statement to corporate counsel in the course of an internal corporate investigation, it is the corporation and not the individual that holds the attorney-client privilege for that statement.
It is important to remember that Upjohn warnings don’t only serve a cautionary purpose for the employee they serve as a functional trigger to the company’s eventual privilege claim. An employee’s statement, memorandum or email generated in an internal investigation in response to a request from counsel is best protected from discovery when that request from corporate counsel is well documented. A pair of significant cases in 2012 demonstrated just how important proper documentation of an Upjohn warning can be for establishing a privilege claim.
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