"Slip and Fall"

Stephen Gillers, Regulation of Lawyers
"Slip and Fall"

The answer to the question posed in the “slip and fall” problem depends on both the individual(s) in question and the rule that one applies to the facts at hand.  First, note that the “control group” theory will not be applicable in this case since it was overruled by the United States Supreme Court in the Upjohn case (if the “control group” theory did apply [for arguments sake] we do not think that any the communications in “slip and fall” would be privileged because it does not seem that any of the 7 individuals questioned were high ranking decision makers at Tracy’s).  

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We will continue on a person-by-person basis.

Berkow (Head of Maintenance): We think that Burkow’s communications would be privileged under the Upjohn test and possibly the Samaritan test.  His communications under Upjohn would be privileged because he was an employee and the content of what he said involved issues that would be litigated. His communication might be privileged under the narrower Samaritan rule if his actions gave rise to the liability and was directly responsible for having Morse wax the floor. If he is not responsible for the decision to wax the floor then the information would not be privileged.

Tim Morse (The Waxer): Privileged under both tests because an employee of the store, communication is in issue and his actions directly gave rise to liability when he waxed the floor.

Tina Sandstrom (Salesperson): Her communications are privileged under Upjohn because she was an employee and what she witnessed had to do with this issue. Her communication would not be privileged under Samaritan because despite her employment at Tracy’s she was merely a witness and did not take any action that gave rise to the liability.

Rex McCormick (Employee off clock): His communications are not privileged under Upjohn because he was on his day off and these observations were not made in the scope of his employment. Also not privileged under Samaritan because merely a witness.

Delia Corcoran (Ex-head of maintenance): Communications are possibly privileged under Upjohn because she implemented the waxing procedures, so she has relevant information that is within the scope of her employment, but the court is silent on whether this privilege extends to ex-employees. Similarly, under Samaritan this procedure could have given rise to the liability, but it is unclear whether this extends to ex-employees. We think it does.

Rivera and Kuhl: No privilege for either person’s communications because neither person works at Tracy’s. 

Note: In order for communications to be privileged under Upjohn they must have concerned matters within the scope of the employees corporate duties AND the employees themselves must have been sufficiently aware that they were being questioned in order that the corporation could obtain legal advice. It is unclear whether the investigator informed any of these people whether the corporation was interviewing them in order to seek legal advice.

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