1E9Ct5D

In Upjohn, the company was subject to a claim that its foreign subsidiary made illegalpayments to secure a foreign government’s business. In response, the companyinitiated an investigation and sent out a questionnaire to all of its foreign general andarea managers to determine the nature and magnitude of such payments. After Upjohndisclosed the payments to the Securities and Exchange Commission, the InternalRevenue Service demanded production of all the files relating to the investigation.Upjohn refused to produce these materials, citing privilege. The court rejected the“control group” test applied by the lower appellate court, concluding that even low-leveland mid-level employees could have the information necessary to defend against thepotential litigation, and that Fed. R. Evid. 501 protected any client information that aidedthe orderly administration of justice. The court rejected the lower appellate court’sconclusion that the work-product doctrine did not apply to tax summonses, butremanded the issue because the work-product at issue was based on potentiallyprivileged oral statements. The doctrine could only be overcome upon a strong showingof necessity for disclosure, and unavailability by other means. 10In Illinois, the IllinoisSupreme Court has held that “attorneys’ notes and memoranda of oral conversationswith witnesses or employees are not routinely discoverable” and noted a “rarelyoperable” exception where the notes and memoranda “constitute the only source offactual material”. 11“[A]ttorney’s notes or memoranda are discoverable only if the party10 Upjohn, 449 U.S. at 392.11 Consolidation Coal Co. v. Bucyrus-Erie Co., 432 N.E.2d 250, 253 (Ill.1982) (emphasis added).10