In Upjohn Co. v. United States, 6 the United States Supreme Court held that a company's attorney — client privilege extends to company counsel's
communications with employees in certain prescribed circumstances.7 Rather than providing a simple objective test, the Upjohn court
instead established five factors to
guide courts in determining whether the company's privilege should extend to counsel's
communications with its employees: (1) whether the
communications were made by employees at the direction of superior officers of the company for the purpose of obtaining legal advice; (2) whether the
communications contained information necessary for counsel to render legal advice, which was not otherwise available from «control group» management; (3) whether the matters communicated were within the scope of the employee's corporate duties; (4) whether the employee knew that the
communications were for the purpose of the company obtaining legal advice; and (5) whether the
communications were ordered to be kept confidential by the employee's superiors, including that the
communications were considered confidential at the time and kept confidential subsequent to the interview.8 When these elements are established, courts generally consider
communications between company counsel and an employee to be within the scope of the company's attorney — client privilege.9
Instead, a mediator is there to
guide you through the divorce mediation process, to promote constructive
communication, and to provide an environment that is conducive to cooperation and agreement.
And after the retreat, Shlomo Slatkin did not leave us with unfinished business, but
instead guided us through numerous & productive, 1.5 - hour Skype sessions to build better
communication and marriage building skills.