Litigation: Upjohn Warnings and External Consultants

Corporate counsel conducting internal investigations have relatively little instruction on whether to interview the company’s third-party consultants and, if so, whether an Upjohn warning is necessary. But courts have recently addressed two related concepts:

1. The importance of providing pre-interview Upjohn warnings to corporate employees
2. The corporate attorney–client privilege covers consultants considered the “functional equivalent” of corporate employees

Together these concepts provide corporate counsel informed guidance when interviewing consultants as part of an internal investigation.

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