Ninth Circuit Holds That Absence Of "Upjohn Warning" Does Not Bar Admissibility In Criminal Prosecution Of Statements Elicited By Corporate Counsel During Internal Investigation


In United States v. Ruehle, No. 09-50161, 2009 WL 3152971 (9th Cir. Sept. 30, 2009), the United States Court of Appeals for the Ninth Circuit reversed a controversial decision by the United States District Court for the Central District of California, which improperly excluded from evidence in a criminal prosecution certain statements made by a senior officer to corporate counsel conducting an internal investigation that the officer claimed were protected from disclosure by the attorney-client privilege. The Ninth Circuit held that the corporate counsel’s alleged failure to give an “Upjohn warning” — which comes from the United States Supreme Court’s decision in Upjohn Co. v. United States, 449 U.S. 383 (1981), and is sometimes referred to as “corporate Miranda warning” — to the officer does not necessarily bar the government from using the statements made by the officer to corporate counsel. The decision potentially has far-reaching implications for groups as diverse as government prosecutors, individual corporate officers and corporate counsel in connection with the conduct of internal investigations of alleged corporate wrongdoing.

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