Last week’s Privilege Point described the Missouri Supreme Court’s understandable conclusion that a railroad employee did not have a personal attorney-client relationship with railroad lawyers who interviewed her about an accident she had witnessed. Cole v. Kan. City S. Ry., No. SC100788, 2025 Mo. LEXIS 173 (Mo. June 10, 2025).
The court then turned to the railroad’s argument that “its own attorney-client privilege” protected the interview. Citing Upjohn, the court held that the railroad could not claim privilege protection for the interview either — because it “did not submit sufficient evidence” that ” ‘the employee making the communication did so at the direction of [her] corporate superior.’ ” Id. at *15-16 (citation omitted). The court acknowledged that the employee “testified that she was ‘called into’ [the railroad]’s attorneys’ offices to talk to them” — but inexplicably held that “[e]vidence that someone called in [the employee] to speak with [the railroad]’s attorneys is not sufficient to show she did so at the direction of a corporate superior.” Id.
Lawyers (at least in Missouri) apparently must be prepared to identify the corporate superior who directed an Upjohn-protected interview.
