Upjohn Warnings; a Siren's Call? The Upjohn Warning in International Investigations

Abstract

Imagine yourself in Buenos Aires. You’re there investigating allegations of bribery and presently interviewing Julio Cortazar, a well-regarded but somewhat unknown company employee. Mr. Cortazar doesn’t speak English well, so HR is acting as translator. At the start of the interview and before you let Mr. Cortazar speak, you set the rules of the interview. That is, you tell Mr. Cortazar that you are a company lawyer, that you do not represent him but the corporation and that anything he tells you is privileged. You go on to explain that the privilege does not belong to Mr. Cortazar but to the corporation and that the privilege may be waived without his knowledge or approval and disclosed at any time, even to the U.S. government. You finish this introduction by asking him to keep the interview confidential in order to, among other things, preserve the privilege. To close you ask Mr. Cortazar if he understood what you just told him and if he has any questions. Mr. Cortazar stares at you blankly and nods.