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
«Except as otherwise provided
by time period computations specifically applying to other laws, when a period of time measured in days, weeks, months, years, or other measurements of time except hours is
prescribed for the exercise of any
privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted;...»