United States of America and David E. Nowak, Irs v. The Upjohn Company and Gerard Thomas in His Official Capacity

MERRITT, Circuit Judge.

The principal question on appeal is whether this Circuit should adopt the “control group” or the broader “subject matter” test as the standard for measuring the scope of the attorney-client privilege in the corporate context. Appellants, Upjohn Company and its in-house General Counsel, appeal from the District Court’s order enforcing under 26 U.S.C. §§ 7402(b), 7604(a) (1976) an IRS summons for documents. The General Counsel refused to produce the documents on the grounds that they are protected by company’s attorney-client privilege and by the work-product doctrine.…