When the General Counsel for petitioner pharmaceutical
manufacturing corporation (hereafter petitioner) was informed that
one of its foreign subsidiaries had made questionable payments to
foreign government officials in order to secure government
business, an internal investigation of such payments was initiated.
As part of this investigation, petitioner's attorneys sent a
questionnaire to all foreign managers seeking detailed information
concerning such payments, and the responses were returned to the
General Counsel. The General Counsel and outside counsel also
interviewed the recipients of the questionnaire and other company
officers and employees. Subsequently, based on a report voluntarily
submitted by petitioner disclosing the questionable payments, the
Internal Revenue Service (IRS) began an investigation to determine
the tax consequences of such payments and issued a summons pursuant
to 26 U.S.C. § 762 demanding production of, inter alia,
the questionnaires and the memoranda and notes of the interviews.
Petitioner refused to produce the documents on the grounds that
they were protected from disclosure by the attorney-client
privilege and constituted the work product of attorneys prepared in
anticipation of litigation. The United States then filed a petition
in Federal District Court seeking enforcement of the summons. That
court adopted the Magistrate's recommendation that the summons
should be enforced, the Magistrate having concluded, inter
that the attorney-client privilege had been waived, and
that the Government had made a sufficient showing of necessity to
overcome the protection of the work product doctrine. The Court of
Appeals rejected the Magistrate's finding of a waiver of the
attorney-client privilege, but held that, under the so-called
"control group test," the privilege did not apply
"[t]o the extent that the communications were made by officers
and agents not responsible for directing [petitioner's] actions in
response to legal advice . . . for the simple reason that the
communications were not the 'client's'.'"
The court also held that the work product doctrine did not apply
to IRS summonses.
1. The communications by petitioner's employees to counsel are
covered by the attorney-client privilege insofar as the responses
Page 449 U. S. 384
questionnaires and any notes reflecting responses to interview
questions are concerned. Pp. 449 U. S.
(a) The control group test overlooks the fact that such
privilege exists to protect not only the giving of professional
advice to those who can act on it, but also the giving of
information to the lawyer to enable him to give sound and informed
advice. While in the case of the individual client the provider of
information and the person who acts on the lawyer's advice are one
and the same, in the corporate context, it will frequently be
employees beyond the control group (as defined by the Court of
Appeals) who will possess the information needed by the
corporation's lawyers. Middle-level -- and indeed lower-level --
employees can, by actions within the scope of their employment,
embroil the corporation in serious legal difficulties, and it is
only natural that these employees would have the relevant
information needed by corporate counsel if he is adequately to
advise the client with respect to such actual or potential
difficulties. Pp. 449 U. S.
(b) The control group test thus frustrates the very purpose of
the attorney-client privilege by discouraging the communication of
relevant information by employees of the client corporation to
attorneys seeking to render legal advice to the client. The
attorney's advice will also frequently be more significant to
noncontrol employees than to those who officially sanction the
advice, and the control group test makes it more difficult to
convey full and frank legal advice to the employees who will put
into effect the client corporation's policy. P. 449 U. S.
(c) The narrow scope given the attorney-client privilege by the
Court of Appeals not only makes it difficult for corporate
attorneys to formulate sound advice when their client is faced with
a specific legal problem, but also threatens to limit the valuable
efforts of corporate counsel to ensure their client's compliance
with the law. Pp. 449 U. S.
(d) Here, the communications at issue were made by petitioner's
employees to counsel for petitioner, acting as such, at the
direction of corporate superiors in order to secure legal advice
from counsel. Information not available from upper-echelon
management was needed to supply a basis for legal advice concerning
compliance with securities and tax laws, foreign laws, currency
regulations, duties to shareholders, and potential litigation in
each of these areas. The communications concerned matters within
the scope of the employees' corporate duties, and the employees
themselves were sufficiently aware that they were being questioned
in order that the corporation could obtain legal advice. Pp.
449 U. S.
2. The work product doctrine applies to IRS summonses. Pp.
449 U. S.
(a) The obligation imposed by a tax summons remains subject to
the traditional privileges and limitations, and nothing in the
Page 449 U. S. 385
or legislative.history of the IRS summons provisions suggests an
intent on the part of Congress to preclude application of the work
product doctrine. P. 449 U. S.
(b) The Magistrate applied the wrong standard when he concluded
that the Government had made a sufficient showing of necessity to
overcome the protections of the work product doctrine. The notes
and memoranda sought by the Government constitute work product
based on oral statements. If they reveal communications, they are
protected by the attorney-client privilege. To the extent they do
not reveal communications, they reveal attorneys' mental processes
in evaluating the communications. As Federal Rule of Civil
Procedure 6, which accords special protection from disclosure to
work product revealing an attorney's mental processes, and
Hickman v. Taylor, 329 U. S. 495
make clear, such work product cannot be disclosed simply on a
showing of substantial need or inability to obtain the equivalent
without undue hardship. P.
449 U. S. 401
600 F.2d 1223, reversed and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS,
JJ., joined, and in Parts I and III of which BURGER, C.J., joined.
BURGER, C.J., filed an opinion concurring in part and concurring in
the judgment, post,
p. 449 U. S.
Page 449 U. S. 386
JUSTICE REHNQUIST delivered the opinion of the Court.
We granted certiorari in this case to address important
questions concerning the scope of the attorney-client privilege in
the corporate context and the applicability of the work product
doctrine in proceedings to enforce tax summonses. 445 U.S. 925.
With respect to the privilege question, the parties and various
have described our task as one of choosing between
two "tests" which have gained adherents in the courts of appeals.
We are acutely aware, however, that we sit to decide concrete
cases, and not abstract propositions of law. We decline to lay down
a broad rule or series of rules to govern all conceivable future
questions in this area, even were we able to do so. We can and do,
however, conclude that the attorney-client privilege protects the
communications involved in this case from compelled disclosure, and
that the work product doctrine does apply in tax summons
Petitioner Upjohn Co. manufactures and sells pharmaceuticals
here and abroad. In January, 1976, independent accountants
conducting an audit of one of Upjohn's foreign subsidiaries
discovered that the subsidiary made payments to or for the benefit
of foreign government officials in order to secure government
business. The accountants so informed petitioner Mr. Gerard Thomas,
Upjohn's Vice President, Secretary, and General Counsel. Thomas is
a member of the Michigan and New York Bars, and has been Upjohn's
General Counsel for 20 years. He consulted with outside counsel and
R. T. Parfet, Jr., Upjohn's Chairman of the Board. It was decided
that the company would conduct an internal investigation of what
were termed "questionable payments." As part of this investigation,
the attorneys prepared a letter containing a questionnaire which
was sent to "All Foreign General and Area Managers" over the
Chairman's signature. The letter
Page 449 U. S. 387
began by noting recent disclosures that several American
companies made "possibly illegal" payments to foreign government
officials, and emphasized that the management needed full
information concerning any such payments made by Upjohn. The letter
indicated that the Chairman had asked Thomas, identified as "the
company's General Counsel,"
"to conduct an investigation for the purpose of determining the
nature and magnitude of any payments made by the Upjohn Company or
any of its subsidiaries to any employee or official of a foreign
The questionnaire sought detailed information concerning such
payments. Managers were instructed to treat the investigation as
"highly confidential" and not to discuss it with anyone other than
Upjohn employees who might be helpful in providing the requested
information. Responses were to be sent directly to Thomas. Thomas
and outside counsel also interviewed the recipients of the
questionnaire and some 33 other Upjohn officers or employees as
part of the investigation.
On March 26, 1976, the company voluntarily submitted a
preliminary report to the Securities and Exchange Commission on
Form 8-K disclosing certain questionable payments. [Footnote 1
] A copy of the report was
simultaneously submitted to the Internal Revenue Service, which
immediately began an investigation to determine the tax
consequences of the payments. Special agents conducting the
investigation were given lists by Upjohn of all those interviewed
and all who had responded to the questionnaire. On November 23,
1976, the Service issued a summons pursuant to 26 U.S.C. § 7602
demanding production of:
"All files relative to the investigation conducted under the
supervision of Gerard Thomas to identify payments to employees of
foreign governments and any political
Page 449 U. S. 388
contributions made by the Upjohn Company or any of its
affiliates since January 1, 1971, and to determine whether any
funds of the Upjohn Company had been improperly accounted for on
the corporate books during the same period."
"The records should include but not be limited to written
questionnaires sent to managers of the Upjohn Company's foreign
affiliates, and memorandums or notes of the interviews conducted in
the United States and abroad with officers and employees of the
Upjohn Company and its subsidiaries."
App. 17a-18a. The company declined to produce the documents
specified in the second paragraph on the grounds that they were
protected from disclosure by the attorney-client privilege and
constituted the work product of attorneys prepared in anticipation
of litigation. On August 31, 1977, the United States filed a
petition seeking enforcement of the summons under 26 U.S.C. §
7402(b) and 7604(a) in the United States District Court for the
Western District of Michigan. That court adopted the recommendation
of a Magistrate who concluded that the summons should be enforced.
Petitioners appealed to the Court of Appeals for the Sixth Circuit,
which rejected the Magistrate's finding of a waiver of the
attorney-client privilege, 600 F.2d 1223, 1227, n. 12, but agreed
that the privilege did not apply
"[t]o the extent that the communications were made by officers
and agents not responsible for directing Upjohn's actions in
response to legal advice . . . , for the simple reason that the
communications were not the 'client's.'"
at 1225. The court reasoned that accepting
petitioners' claim for a broader application of the privilege would
encourage upper-echelon management to ignore unpleasant facts and
create too broad a "zone of silence." Noting that Upjohn's counsel
had interviewed officials such as the Chairman and President, the
Court of Appeals remanded to the District Court so that a
determination of who was
Page 449 U. S. 389
within the "control group" could be made. In a concluding
footnote, the court stated that the work product doctrine "is not
applicable to administrative summonses issued under 26 U.S.C. §
at 1228, n. 13.
Federal Rule of Evidence 501 provides that
"the privilege of a witness . . . shall be governed by the
principles of the common law as they may be interpreted by the
courts of the United States in light of reason and experience."
The attorney-client privilege is the oldest of the privileges
for confidential communications known to the common law. 8 J.
Wigmore, Evidence § 2290 (McNaughton rev.1961). Its purpose is to
encourage full and frank communication between attorneys and their
clients, and thereby promote broader public interests in the
observance of law and administration of justice. The privilege
recognizes that sound legal advice or advocacy serves public ends
and that such advice or advocacy depends upon the lawyer's being
fully informed by the client. As we stated last Term in Trammel
v. United States, 445 U. S. 40
445 U. S. 51
"The lawyer-client privilege rests on the need for the advocate
and counselor to know all that relates to the client's reasons for
seeking representation if the professional mission is to be carried
And in Fisher v. United States, 425 U.
, 425 U. S. 403
(1976), we recognized the purpose of the privilege to be "to
encourage clients to make full disclosure to their attorneys." This
rationale for the privilege has long been recognized by the Court,
see Hunt v. Blackburn, 128 U. S. 464
128 U. S. 470
(1888) (privilege "is founded upon the necessity, in the interest
and administration of justice, of the aid of persons having
knowledge of the law and skilled in its practice, which assistance
can only be safely and readily availed of when free from the
consequences or the apprehension of disclosure"). Admittedly
complications in the application of the privilege arise when the
client is a corporation, which, in theory, is an artificial
creature of the
Page 449 U. S. 390
law, and not an individual; but this Court has assumed that the
privilege applies when the client is a corporation, United
States v. Louisville Nashville R. Co., 236 U.
, 236 U. S. 336
(1915), and the Government does not contest the general
The Court of Appeals, however, considered the application of the
privilege in the corporate context to present a "different
problem," since the client was an inanimate entity, and
"only the senior management, guiding and integrating the several
operations, . . . can be said to possess an identity analogous to
the corporation as a whole."
600 F.2d at 1226. The first case to articulate the so-called
"control group test" adopted by the court below, Philadelphia
v. Westinghouse Electric Corp., 210 F.
, 485 (ED Pa.), petition for mandamus and
prohibition denied sub nom. General Electric Co. v.
312 F.2d 742 (CA3 1962), cert. denied,
372 U.S. 943 (1963), reflected a similar conceptual approach:
"Keeping in mind that the question is, is it the corporation
which is seeking the lawyer's advice when the asserted privileged
communication is made?, the most satisfactory solution, I think, is
that, if the employee making the communication, of whatever rank he
may be, is in a position to control or even to take a substantial
part in a decision about any action which the corporation may take
upon the advice of the attorney, . . . then, in effect, he is
(or personifies) the corporation
when he makes his disclosure
to the lawyer, and the privilege would apply."
(Emphasis supplied.) Such a view, we think, overlooks the fact
that the privilege exists to protect not only the giving of
professional advice to those who can act on it, but also the giving
of information to the lawyer to enable him to give sound and
informed advice. See Trammel, supra
at 445 U. S. 51
at 425 U. S. 403
The first step in the resolution of any legal problem is
ascertaining the factual background and sifting through the
Page 449 U. S. 391
with an eye to the legally relevant. See
ABA Code of
Professional Responsibility, Ethical Consideration 4-1:
"A lawyer should be fully informed of all the facts of the
matter he is handling in order for his client to obtain the full
advantage of our legal system. It is for the lawyer in the exercise
of his independent professional judgment to separate the relevant
and important from the irrelevant and unimportant. The observance
of the ethical obligation of a lawyer to hold inviolate the
confidences and secrets of his client not only facilitates the full
development of facts essential to proper representation of the
client, but also encourages laymen to seek early legal
See also Hickman v. Taylor, 329 U.
, 329 U. S. 511
In the case of the individual client, the provider of
information and the person who acts on the lawyer's advice are one
and the same. In the corporate context, however, it will frequently
be employees beyond the control group as defined by the court below
-- "officers and agents . . . responsible for directing [the
company's] actions in response to legal advice" -- who will possess
the information needed by the corporation's lawyers. Middle-level
-- and indeed lower-level employees can, by actions within the
scope of their employment, embroil the corporation in serious legal
difficulties, and it is only natural that these employees would
have the relevant information needed by corporate counsel if he is
adequately to advise the client with respect to such actual or
potential difficulties. This fact was noted in Diversified
Industries, Inc. v. Meredith,
572 F.2d 596 (CA8 1978) (en
"In a corporation, it may be necessary to glean information
relevant to a legal problem from middle management or
non-management personnel as well as from top executives. The
attorney dealing with a complex legal problem"
"is thus faced with a 'Hobson's choice.' If he interviews
employees not having 'the very highest authority,'
Page 449 U. S. 392
their communications to him will not be privileged. If, on the
other hand, he interviews only those employees with 'the very
highest authority,' he may find it extremely difficult, if not
impossible, to determine what happened."
at 608-609 (quoting Weinschel, Corporate Employee
Interviews and the Attorney-Client Privilege, 12 B.C.Ind. &
Com.L.Rev. 873, 876 (1971)). The control group test adopted by the
court below thus frustrates the very purpose of the privilege by
discouraging the communication of relevant information by employees
of the client to attorneys seeking to render legal advice to the
client corporation. The attorney's advice will also frequently be
more significant to noncontrol group members than to those who
officially sanction the advice, and the control group test makes it
more difficult to convey full and frank legal advice to the
employees who will put into effect the client corporation's policy.
See, e.g., Duplan Corp. v. Deering Milliken,
Inc., 397 F.
, 1164 (SC 1974) ("After the lawyer forms his or her
opinion, it is of no immediate benefit to the Chairman of the Board
or the President. It must be given to the corporate personnel who
will apply it").
The narrow scope given the attorney-client privilege by the
court below not only makes it difficult for corporate attorneys to
formulate sound advice when their client is faced with a specific
legal problem, but also threatens to limit the valuable efforts of
corporate counsel to ensure their client's compliance with the law.
In light of the vast and complicated array of regulatory
legislation confronting the modern corporation, corporations,
unlike most individuals, "constantly go to lawyers to find out how
to obey the law," Burnham, The Attorney-Client Privilege in the
Corporate Arena, 24 Bus.Law. 901, 913 (1969), particularly since
compliance with the law in this area is hardly an instinctive
matter, see, e.g., United States v. United States Gypsum
Co., 438 U. S. 422
438 U. S.
-441 (1978) ("the behavior proscribed by the
[Sherman] Act is
Page 449 U. S. 393
often difficult to distinguish from the gray zone of socially
acceptable and economically justifiable business conduct").
] The test adopted
by the court below is difficult to apply in practice, though no
abstractly formulated and unvarying "test" will necessarily enable
courts to decide questions such as this with mathematical
precision. But if the purpose of the attorney-client privilege is
to be served, the attorney and client must be able to predict with
some degree of certainty whether particular discussions will be
protected. An 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. The very terms of the
test adopted by the court below suggest the unpredictability of its
application. The test restricts the availability of the privilege
to those officers who play a "substantial role" in deciding and
directing a corporation's legal response. Disparate decisions in
cases applying this test illustrate its unpredictability.
Compare, e.g., Hogan v. Zletz,
43 F.R.D. 308, 315-316 (ND
Okla.1967), aff'd in part sub nom. Natta v. Hogan,
F.2d 686 (CA10 1968) (control group includes managers and assistant
managers of patent division and research and development
department), with Congoleum Industries, Inc. v. GAF Corp.,
49 F.R.D. 82, 83-85 (ED Pa.1969), aff'd,
478 F.2d 1398
(CA3 1973) (control group includes only division and corporate
vice-presidents, and not two directors of research and
vice-president for production and research).
Page 449 U. S. 394
The communications at issue were made by Upjohn employees
] to counsel for
Upjohn, acting as such, at the direction of corporate superiors in
order to secure legal advice from counsel. As the Magistrate
"Mr. Thomas consulted with the Chairman of the Board and outside
counsel, and thereafter conducted a factual investigation to
determine the nature and extent of the questionable payments
and to be in a position to give leal advice to the company with
respect to the payments.
(Emphasis supplied.) 78-1 USTC 9277, pp. 83,598, 83,599.
Information, not available from upper-echelon management, was
needed to supply a basis for legal advice concerning compliance
with securities and tax laws, foreign laws, currency regulations,
duties to shareholders, and potential litigation in each of these
areas. [Footnote 4
communications concerned matters within the scope of the employees'
corporate duties, and the employees themselves were sufficiently
aware that they were being questioned in order that the corporation
could obtain legal advice. The questionnaire identified Thomas as
"the company's General Counsel" and referred in its opening
sentence to the possible illegality of payments such as the ones on
which information was sought. App. 40a. A statement of policy
accompanying the questionnaire clearly indicated the legal
implications of the investigation. The policy statement was issued
"in order that there be no uncertainty in the future as to the
policy with respect to the practices which are the subject of this
Page 449 U. S. 395
It began "Upjohn will comply with all laws and regulations," and
stated that commissions or payments "will not be used as a
subterfuge for bribes or illegal payments" and that all payments
must be "proper and legal." Any future agreements with foreign
distributors or agents were to be approved "by a company attorney,"
and any questions concerning the policy were to be referred "to the
company's General Counsel." Id.
at 165a-166a. This
statement was issued to Upjohn employees worldwide, so that even
those interviewees not receiving a questionnaire were aware of the
legal implications of the interviews. Pursuant to explicit
instructions from the Chairman of the Board, the communications
were considered "highly confidential" when made, id.
39a, 43a, and have been kept confidential by the company. [Footnote 5
] Consistent with the
underlying purposes of the attorney-client privilege, these
communications must be protected against compelled disclosure.
The Court of Appeals declined to extend the attorney-client
privilege beyond the limits of the control group test for fear that
doing so would entail severe burdens on discovery and create a
broad "zone of silence" over corporate affairs. Application of the
attorney-client privilege to communications such as those involved
here, however, puts the adversary in no worse position than if the
communications had never taken place. The privilege only protects
disclosure of communications; it does not protect disclosure of the
underlying facts by those who communicated with the attorney:
"[T]he protection of the privilege extends only to
and not to facts. A fact is one thing and
a communication concerning that fact is an entirely different
Page 449 U. S. 396
thing. The client cannot be compelled to answer the question,
'What did you say or write to the attorney?' but may not refuse to
disclose any relevant fact within his knowledge merely because he
incorporated a statement of such fact into his communication to his
Philadelphia v. Westinghouse Electric
Corp., 205 F.
Pa.1962). See also Diversified Industries,
572 F.2d at
611; State ex rel. Dudek v. Circuit Court,
34 Wis.2d 559,
580, 150 N.W.2d 387, 399 (1967) ("the courts have noted that a
party cannot conceal a fact merely by revealing it to his lawyer").
Here, the Government was free to question the employees who
communicated with Thomas and outside counsel. Upjohn has provided
the IRS with a list of such employees, and the IRS has already
interviewed some 25 of them. While it would probably be more
convenient for the Government to secure the results of petitioner's
internal investigation by simply subpoenaing the questionnaires and
notes taken by petitioner's attorneys, such considerations of
convenience do not overcome the policies served by the
attorney-client privilege. As Justice Jackson noted in his
concurring opinion in Hickman v. Taylor,
329 U.S. at
329 U. S. 516
"Discovery was hardly intended to enable a learned profession to
perform its functions . . . on wits borrowed from the
Needless to say, we decide only the case before us, and do not
undertake to draft a set of rules which should govern challenges to
investigatory subpoenas. Any such approach would violate the spirit
of Federal Rule of Evidence 501. See
S.Rep. No. 93-1277,
p. 13 (1974) ("the recognition of a privilege based on a
confidential relationship . . . should be determined on a
case-by-case basis"); Trammel,
445 U.S. at 445 U. S. 47
United States v. Gillock, 445 U.
, 445 U. S. 367
(1980). While such a "case-by-case" basis may to some slight extent
undermine desirable certainty in the boundaries of the
Page 449 U. S. 397
privilege, it obeys the spirit of the Rules. At the same time,
we conclude that the narrow "control group test" sanctioned by the
Court of Appeals in this case cannot, consistent with "the
principles of the common law as . . . interpreted . . . in the
light of reason and experience," Fed.Rule Evid. 501, govern the
development of the law in this area.
Our decision that the communications by Upjohn employees to
counsel are covered by the attorney-client privilege disposes of
the case so far as the responses to the questionnaires and any
notes reflecting responses to interview questions are concerned.
The summons reaches further, however, and Thomas has testified that
his notes and memoranda of interviews go beyond recording responses
to his questions. App. 27a-28a, 91a-93a. To the extent that the
material subject to the summons is not protected by the
attorney-client privilege as disclosing communications between an
employee and counsel, we must reach the ruling by the Court of
Appeals that the work product doctrine does not apply to summonses
issued under 26 U.S.C. § 7602. [Footnote 6
The Government concedes, wisely, that the Court of Appeals erred
and that the work product doctrine does apply to IRS summonses.
Brief for Respondents 16, 48. This doctrine was announced by the
Court over 30 years ago in Hickman v. Taylor, 329 U.
(1947). In that case, the Court rejected
"an attempt, without purported necessity or justification, to
secure written statements, private memoranda and personal
recollections prepared or formed by an adverse party's counsel in
the course of his legal duties."
at 329 U. S. 510
The Court noted that "it is essential that a lawyer work with
Page 449 U. S. 398
a certain degree of privacy," and reasoned that, if discovery of
the material sought were permitted,
"much of what is now put down in writing would remain unwritten.
An attorney's thoughts, heretofore inviolate, would not be his own.
Inefficiency, unfairness and sharp practices would inevitably
develop in the giving of legal advice and in the preparation of
cases for trial. The effect on the legal profession would be
demoralizing. And the interests of the clients and the cause of
justice would be poorly served."
at 329 U. S. 511
The "strong public policy" underlying the work product doctrine was
reaffirmed recently in United States v. Nobles,
422 U. S. 225
422 U. S.
-240 (1975), and has been substantially incorporated
in Federal Rule of Civil Procedure 26(b)(3). [Footnote 7
As we stated last Term, the obligation imposed by a tax summons
remains "subject to the traditional privileges and limitations."
United States v. Euge, 444 U. S. 707
444 U. S. 714
(1980). Nothing in the language of the IRS summons provisions or
their legislative history suggests an intent on the part of
Congress to preclude application of the work product doctrine. Rule
26(b)(3) codifies the work product doctrine, and the Federal Rules
of Civil Procedure are made applicable
Page 449 U. S. 399
to summons enforcement proceedings by Rule 81(a)(3). See
Donaldson v. United States, 400 U. S. 517
400 U. S. 528
(1971). While conceding the applicability of the work product
doctrine, the Government asserts that it has made a sufficient
showing of necessity to overcome its protections. The Magistrate
apparently so found, 78-1 USTC � 9277, p. 83,605. The Government
relies on the following language in Hickman:
"We do not mean to say that all written materials obtained or
prepared by an adversary's counsel with an eye toward litigation
are necessarily free from discovery in all cases. Where relevant
and nonprivileged facts remain hidden in an attorney's file, and
where production of those facts is essential to the preparation of
one's case, discovery may properly be had. . . . And production
might be justified where the witnesses are no longer available or
can be reached only with difficulty."
329 U.S. at 329 U. S. 511
The Government stresses that interviewees are scattered across the
globe, and that Upjohn has forbidden its employees to answer
questions it considers irrelevant. The above-quoted language from
however, did not apply to "oral statements made
by witnesses . . . whether presently in the form of [the
attorney's] mental impressions or memoranda." Id.
329 U. S. 512
As to such material, the Court did
"not believe that any showing of necessity can be made under the
circumstances of this case so as to justify production. . . . If
there should be a rare situation justifying production of these
matters, petitioner's case is not of that type."
at 329 U. S.
-513. See also Nobles, supra
at 422 U. S.
-253 (WHITE, J., concurring). Forcing an attorney to
disclose notes and memoranda of witnesses' oral statements is
particularly disfavored, because it tends to reveal the attorney's
mental processes, 329 U.S. at 329 U. S. 513
("what he saw fit to write down regarding witnesses' remarks");
at 329 U. S.
-517 ("the statement would be his [the
Page 449 U. S. 400
attorney's] language, permeated with his inferences") (Jackson,
J., concurring). [Footnote
Rule 26 accords special protection to work product revealing the
attorney's mental processes. The Rule permits disclosure of
documents and tangible things constituting attorney work product
upon a showing of substantial need and inability to obtain the
equivalent without undue hardship. This was the standard applied by
the Magistrate, 78-1 USTC � 9277, p. 83,604. Rule 26 goes on,
however, to state that,
"[i]n ordering discovery of such materials when the required
showing has been made, the court shall protect against disclosure
of the mental impressions, conclusions, opinions or legal theories
of an attorney or other representative of a party concerning the
Although this language does not specifically refer to memoranda
based on oral statements of witnesses, the Hickman
stressed the danger that compelled disclosure of such memoranda
would reveal the attorney's mental processes. It is clear that this
is the sort of material the draftsmen of the Rule had in mind as
deserving special protection. See
Notes of Advisory
Committee on 1970 Amendment to Rules, 28 U.S.C.App. p. 442 ("The
subdivision . . . goes on to protect against disclosure the mental
impressions, conclusions, opinions, or legal theories . . . of an
attorney or other representative of a party. The Hickman
opinion drew special attention to the need for protecting an
attorney against discovery of memoranda prepared from recollection
of oral interviews. The courts have steadfastly safeguarded against
disclosure of lawyers' mental impressions and legal theories. . .
Page 449 U. S. 401
Based on the foregoing, some courts have concluded that no
showing of necessity can overcome protection of work product which
is based on oral statements from witnesses. See, e.g., In re
Grand Jury Proceedings,
473 F.2d 840, 848 (CA8 1973) (personal
recollections, notes, and memoranda pertaining to conversation with
witnesses); In re Grand Jury Investigation, 412 F.
Pa.1976) (notes of conversation with witness "are so much a product
of the lawyer's thinking and so little probative of the witness's
actual words that they are absolutely protected from disclosure").
Those courts declining to adopt an absolute rule have nonetheless
recognized that such material is entitled to special protection.
See, e.g., In re Grand Jury Investigation,
599 F.2d 1224,
1231 (CA3 1979) ("special considerations . . . must shape any
ruling on the discoverability of interview memoranda . . . ; such
documents will be discoverable only in a rare situation'");
cf. In re Grand Jury Subpoena, 599 F.2d 504, 511-512 (CA2
We do not decide the issue at this time. It is clear that the
Magistrate applied the wrong standard when he concluded that the
Government had made a sufficient showing of necessity to overcome
the protections of the work product doctrine. The Magistrate
applied the "substantial need" and "without undue hardship"
standard articulated in the first part of Rule 26(b)(3). The notes
and memoranda sought by the Government here, however, are work
product based on oral statements. If they reveal communications,
they are, in this case, protected by the attorney-client privilege.
To the extent they do not reveal communications, they reveal the
attorneys' mental processes in evaluating the communications. As
Rule 26 and Hickman
make clear, such work product cannot
be disclosed simply on a showing of substantial need and inability
to obtain the equivalent without undue hardship.
While we are not prepared at this juncture to say that such
material is always protected by the work product rule, we
Page 449 U. S. 402
think a far stronger showing of necessity and unavailability by
other means than was made by the Government or applied by the
Magistrate in this case would be necessary to compel disclosure.
Since the Court of Appeals thought that the work product protection
was never applicable in an enforcement proceeding such as this, and
since the Magistrate whose recommendations the District Court
adopted applied too lenient a standard of protection, we think the
best procedure with respect to this aspect of the case would be to
reverse the judgment of the Court of Appeals for the Sixth Circuit
and remand the case to it for such further proceedings in
connection with the work product claim as are consistent with this
Accordingly, the judgment of the Court of Appeals is reversed,
and the case remanded for further proceedings.
It is so ordered.
On July 28, 1976, the company filed an amendment to this report
disclosing further payments.
The Government argues that the risk of civil or criminal
liability suffices to ensure that corporations will seek legal
advice in the absence of the protection of the privilege. This
response ignores the fact that the depth and quality of any
investigations to ensure compliance with the law would suffer, even
were they undertaken. The response also proves too much, since it
applies to all communications covered by the privilege: an
individual trying to comply with the law or faced with a legal
problem also has strong incentive to disclose information to his
lawyer, yet the common law has recognized the value of the
privilege in further facilitating communications.
Seven of the eighty-six employees interviewed by counsel had
terminated their employment with Upjohn at the time of the
interview. App. 33a-38a. Petitioners argue that the privilege
should nonetheless apply to communications by these former
employees concerning activities during their period of employment.
Neither the District Court nor the Court of Appeals had occasion to
address this issue, and we decline to decide it without the benefit
of treatment below.
at 26a-27a, 103a, 123a-124a. See also In re
Grand Jury Investigation,
599 F.2d 1224, 1229 (CA3 1979);
In re Grand Jury Subpoena,
599 F.2d 504, 511 (CA2
Magistrate's opinion, 71 USTC � 9277, p.
"The responses to the questionnaires and the notes of the
interviews have been treated as confidential material, and have not
been disclosed to anyone except Mr. Thomas and outside
The following discussion will also be relevant to counsel's
notes and memoranda of interviews with the seven former employees
should it be determined that the attorney-client privilege does not
apply to them. See n
This provides, in pertinent part:
"[A] party may obtain discovery of documents and tangible things
otherwise discoverable under subdivision (b)(1) of this rule and
prepared in anticipation of litigation or for trial by or for
another party or by or for that other party's representative
(including his attorney, consultant, surety, indemnitor, insurer,
or agent) only upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of his case
and that he is unable without undue hardship to obtain the
substantial equivalent of the materials by other means. In ordering
discovery of such materials when the required showing has been
made, the court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the
Thomas described his notes of the interviews as containing
"what I considered to be the important questions, the substance
of the responses to them, my beliefs as to the importance of these,
my beliefs as to how they related to the inquiry, my thoughts as to
how they related to other questions. In some instances, they might
even suggest other questions that I would have to ask or things
that I needed to find elsewhere."
78-1 USTC � 9277, p. 83,599.
CHIEF JUSTICE BURGER, concurring in part and concurring in the
I join in Parts I and III of the opinion of the Court and in the
judgment. As to Part II, I agree fully with the Court's rejection
of the so-called "control group" test, its reasons for doing so,
and its ultimate holding that the communications at issue are
privileged. As the Court states, however,
"if the purpose of the attorney-client privilege is to be
served, the attorney and client must be able to predict with some
degree of certainty whether particular discussions will be
at 449 U. S. 393
this very reason, I believe that we should articulate a standard
that will govern similar cases and afford guidance to corporations,
counsel advising them, and federal courts.
The Court properly relies on a variety of factors in concluding
that the communications now before us are privileged. See
at 449 U. S.
-395. Because of the great importance of the issue,
in my view, the Court should make clear now that, as a
Page 449 U. S. 403
general rule, a communication is privileged at least when, as
here, an employee or former employee speaks at the direction of the
management with an attorney regarding conduct or proposed conduct
within the scope of employment. The attorney must be one authorized
by the management to inquire into the subject, and must be seeking
information to assist counsel in performing any of the following
functions: (a) evaluating whether the employee's conduct has bound
or would bind the corporation; (b) assessing the legal
consequences, if any, of that conduct; or (c) formulating
appropriate legal responses to actions that have been or may be
taken by others with regard to that conduct. See, e.g.,
Diversified Industries, Inc. v. Meredith,
572 F.2d 596, 609
(CA8 1978) (en banc); Harper & Row Publishers, Inc. v.
423 F.2d 487, 491-492 (CA7 1970), aff'd by an
equally divided Court, 400 U. S. 348
(1971); Duplan Corp. v. Deering Milliken,
Inc., 397 F.
, 1163-1165 (SC 1974). Other communications between
employees and corporate counsel may indeed be privileged -- as the
petitioners and several amici
have suggested in their
proposed formulations *
-- but the need
for certainty does not compel us now to prescribe all the details
of the privilege in this case.
Nevertheless, to say we should not reach all facets of the
privilege does not mean that we should neglect our duty to provide
guidance in a case that squarely presents the question in a
traditional adversary context. Indeed, because Federal Rule of
Evidence 501 provides that the law of privileges
"shall be governed by the principles of the common law as they
may be interpreted by the courts of the United States in the light
of reason and experience,"
this Court has a special duty to clarify aspects of the law of
Page 449 U. S. 404
before us. Simply asserting that this failure "may to some
slight extent undermine desirable certainty," ante
449 U. S. 396
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
Brief for Petitioners 21-23, and n. 25; Brief for
American Bar Association as Amicus Curiae
5-6, and n. 2;
Brief for American College of Trial Lawyers and 33 Law Firms as
10, and n. 5.