In all but a handful of states, corporations can claim privilege protection for their lawyers’ communications with their employees of any level — as long as the lawyers (1) are gathering facts they need to advise the client companies and (2) have explained that they represent the companies rather than the employees. The so-called “Upjohn warning” covers both of these prerequisites, but primarily focuses on the second, because the first is usually self-evident from the fact of the communication and buttressed by its content.
Cole v. Kansas City Southern Railway, No. SC100788, 2025 Mo. LEXIS 173 (Mo. June 10, 2025), involved a typical scenario in which a railroad employee who witnessed a colleague’s injury spoke with the railroad’s lawyers about what she saw. Although the employee said “I would guess” that the railroad lawyers were representing her, the Missouri Supreme Court upheld the lower court’s understandable conclusion that she had not established a personal attorney-client relationship with the railroad’s lawyers who interviewed her. So far so good.
The court then turned to the railroad’s predictable and presumably easier argument that its employee’s “statements to its attorneys were protected by [the railroad]’s own attorney-client privilege.” Id. at *15. Next week’s Privilege Point will show the “Show Me State” Supreme Court’s remarkable conclusion.
