A Dangerous Departure From Upjohn: Why This Decision Betrays Decades of Settled Law

The Rocha Decision: A Radical Rewriting of Corporate Privilege Law

In my 25 years as a federal prosecutor and now as a federal criminal defense attorney, I have witnessed the careful evolution of the attorney-client privilege in the corporate context. The Supreme Court’s decision in Upjohn Co. v. United States, 449 U.S. 383 (1981), provided a clear and workable framework: when corporate counsel interviews employees as part of an internal investigation, the privilege attaches to those communications if the employee is speaking on behalf of the corporation and is aware that the communication is for the purpose of obtaining legal advice. The Court explicitly rejected a rigid "control group" test, recognizing that corporate investigations often require speaking with lower-level employees who possess critical factual knowledge. For over four decades, federal courts across the country have faithfully applied Upjohn, requiring only that counsel provide a so-called "Upjohn warning"—an oral explanation that the attorney represents the corporation, not the employee individually, and that the communication is privileged as to third parties but may be disclosed to the corporation. The Fifth Circuit’s recent decision in United States v. Rocha, No. 23-40567 (5th Cir. 2024), has now thrown this settled landscape into chaos.

The facts of Rocha are, on their surface, unremarkable. A corporate employee was interviewed by outside counsel during an internal investigation into potential Foreign Corrupt Practices Act violations. The employee received an oral Upjohn warning at the outset of the interview, which was recorded in the counsel’s notes. The employee later became a target of the government’s criminal investigation, and the government sought to compel the employee’s testimony regarding the content of that interview. The district court suppressed the testimony, finding that the privilege applied and that the oral warning was sufficient. The Fifth Circuit reversed, holding that the privilege was waived because the oral warning was not "contemporaneously memorialized in a signed writing or a verbatim transcript." The panel reasoned that without a written record, courts cannot adequately assess whether the employee understood the scope of the representation. With respect, this reasoning is not merely wrong—it is a dangerous departure from Upjohn and the practical realities of corporate investigations.

The Rocha majority cited no Supreme Court precedent for its new writing requirement, because none exists. Upjohn itself said nothing about the form of the warning; it focused on whether the employee had a reasonable expectation that the communication was confidential and for the purpose of legal advice. The Federal Rules of Evidence, particularly Rule 502, which governs the scope of waiver, similarly impose no such requirement. The Fifth Circuit’s decision effectively rewrites the privilege standard, importing a formalistic element that the Supreme Court deliberately avoided. In my experience, requiring a signed writing for every employee interview in a fast-moving internal investigation is not merely burdensome—it is often impossible. Employees may be located in different time zones, may be reluctant to sign anything during a sensitive interview, or may be interviewed by phone or videoconference without the ability to execute a document on the spot. The Rocha court’s solution—suggesting that counsel can simply pause the interview to draft and obtain a signature—betrays a profound misunderstanding of how real investigations work.

The Practical Impossibility of a Per-Se Writing Requirement in Internal Investigations

Let me be blunt: the Rocha decision imposes a standard that no experienced corporate practitioner would accept as workable. In a typical internal investigation, counsel may need to interview dozens, even hundreds, of employees within a matter of days or weeks. These interviews often occur in conference rooms, hotel lobbies, or over secure video links, where the logistics of obtaining a signed writing for each employee are daunting. The employee may be nervous, may not have identification readily available, or may be in a jurisdiction where electronic signatures are not immediately verifiable. The Rocha court suggested that counsel could use a "form acknowledgment" that the employee signs at the beginning of the interview, but this ignores the reality that many employees will refuse to sign anything without first consulting their own attorney—a right they have, but one that would grind the investigation to a halt. Moreover, the decision creates a perverse incentive: employees who later become targets may simply claim they do not recall receiving an oral warning, and without a writing, the privilege is lost, even if the warning was in fact given.

The decision also conflicts with the approach taken by every other circuit that has addressed this issue. The Second Circuit in United States v. Gorski, 807 F.3d 451 (2d Cir. 2015), held that an oral Upjohn warning is sufficient so long as the totality of the circumstances demonstrates that the employee understood the scope of the representation. The D.C. Circuit in In re Kellogg Brown & Root, 756 F.3d 754 (D.C. Cir. 2014), similarly rejected a per-se writing requirement, emphasizing that the privilege analysis is fact-specific and should not be reduced to a checklist. The Seventh Circuit in United States v. BDO Seidman, 492 F.3d 806 (7th Cir. 2007), likewise applied a flexible standard. Rocha now creates a clear circuit split on an issue of immense practical importance, and it invites the Supreme Court to intervene. But until that happens—and the Court may well deny certiorari, as it often does in privilege cases—practitioners in the Fifth Circuit (Texas, Louisiana, Mississippi) are left with a standard that is both unprecedented and unworkable.

From a defense perspective, this decision is a gift to prosecutors. The Department of Justice’s Criminal Division has long encouraged corporations to conduct thorough internal investigations and to cooperate with the government. The Rocha decision now gives prosecutors a powerful tool to pierce the privilege in any case where the Upjohn warning was not documented in writing. I can already foresee the motion practice: the government will demand that corporations produce all Upjohn warnings in writing, and if none exist, the government will argue that the privilege was waived, allowing it to compel employee testimony about what was said during the investigation. This will chill voluntary cooperation and undermine the very purpose of the attorney-client privilege in the corporate context. The privilege exists to encourage full and frank communication between counsel and client; by making that communication vulnerable to attack based on a technicality, Rocha does a disservice to the administration of justice.

Why the Rocha Court Misapplied the Core Holding of Upjohn

The Rocha majority relied heavily on the idea that the attorney-client privilege is "narrowly construed" because it obstructs the truth-seeking function of the courts. While that statement is true as a general matter, it is also true that the privilege serves a vital societal interest: it enables corporations to obtain legal advice and to comply with the law proactively. The Supreme Court in Upjohn explicitly recognized this balance, holding that the privilege must be applied in a way that "serves its purpose" of encouraging "full and frank communication between attorneys and their clients." The Rocha court’s writing requirement does not serve this purpose; it undermines it. By making the privilege contingent on a formality that has nothing to do with whether the employee actually understood the warning, the court elevates procedure over substance. This is precisely the kind of rigid formalism that Upjohn rejected when it discarded the control-group test.

The dissent in Rocha, written by Judge Higginson, got it right. He noted that the majority’s holding "creates a rule that finds no support in Upjohn, the Federal Rules of Evidence, or the law of any other circuit." The dissent pointed out that the employee in Rocha had received a clear oral warning, that the warning was documented in the attorney’s notes, and that there was no evidence the employee was confused about the scope of the representation. The dissent also observed that the majority’s requirement of a "signed writing" is particularly problematic because it conflates the issue of whether the privilege was established with the issue of whether it was waived. The privilege is not waived simply because the warning was oral; it is waived only if the employee disclosed the communication to a third party or if the corporation failed to take reasonable steps to maintain confidentiality. The majority’s logic turns this on its head, effectively creating a presumption of waiver whenever a writing is absent.

In my practice, I have seen firsthand how the Upjohn warning functions in the real world. I have conducted hundreds of internal investigation interviews, and I have given the oral warning in every single one. I always document the warning in my notes, including the exact language I used and the employee’s acknowledgment. But I have never required a signed writing, and I have never had a court question the sufficiency of the warning—until now. The Rocha decision forces me to change my practice, and it forces every corporate defense attorney in the Fifth Circuit to do the same. We will now need to prepare written acknowledgment forms, have them available in multiple languages, and ensure they are signed before any substantive discussion begins. This is not an improvement; it is a bureaucratic hurdle that adds cost, delay, and friction to the investigative process, without any corresponding benefit to the accuracy or fairness of the proceedings.

Moreover, the Rocha decision ignores the reality that many corporate employees are not sophisticated legal actors. They may not understand the legal significance of a signed writing, and they may be more intimidated by a formal document than by an oral explanation. The oral warning, delivered in a conversational tone, often puts the employee at ease and allows them to ask clarifying questions. A written form, by contrast, can feel like a contract or a waiver of rights, which may cause the employee to clam up or to demand their own attorney. This is the opposite of what Upjohn intended. The Supreme Court wanted employees to feel comfortable speaking candidly with corporate counsel, knowing that their communications would be protected. The Rocha decision introduces an element of adversarial formality that is antithetical to that goal.

Strategic Responses for Defense Counsel and Corporate Clients in the Wake of Rocha

Despite my criticism of the Rocha decision, I am not suggesting that defense counsel ignore it. The law is the law, and until the Fifth Circuit reconsiders or the Supreme Court intervenes, practitioners must adapt. The first and most obvious step is to implement a policy of documenting every Upjohn warning in writing. This does not necessarily require a separate signed document for each interview; counsel can use a standardized form that the employee signs at the beginning of the interview, acknowledging that they have received the warning and understand its scope. The form should be dated, signed, and witnessed, and a copy should be provided to the employee. Counsel should also consider recording the warning verbatim in their notes, including the time and place of the interview, the names of all attendees, and the specific language used. If the interview is conducted by phone or videoconference, counsel should send the employee a follow-up email summarizing the warning and asking the employee to confirm receipt.

Second, defense counsel should be prepared to litigate the privilege issue preemptively. In any case where the government seeks to compel testimony from a corporate employee who was interviewed during an internal investigation, counsel should file a motion for a protective order or a motion to quash, arguing that the privilege applies and that the Rocha decision is an outlier that should not be followed outside the Fifth Circuit. For cases in the Fifth Circuit, counsel should be prepared to present evidence that the oral warning was given and that the employee understood it, even if no signed writing exists. This may include testimony from the attorney who conducted the interview, the attorney’s notes, and any contemporaneous email or memorandum that references the warning. The key is to create a record that demonstrates compliance with the spirit of Upjohn, even if the form is not exactly what Rocha demands.

Third, corporate clients should review their existing internal investigation protocols and update them to comply with Rocha. This is particularly important for companies headquartered in the Fifth Circuit or that regularly litigate there. The compliance department should work with outside counsel to develop a standard operating procedure for Upjohn warnings, including templates for written acknowledgments and protocols for documenting verbal warnings when a writing is not feasible. Companies should also consider training their in-house counsel on the new requirements, as in-house attorneys are often the first to conduct interviews in the early stages of an investigation. The cost of implementing these changes is not insignificant, but it pales in comparison to the cost of losing the privilege and having a key employee’s testimony used against the corporation in a criminal case.

Finally, I urge the defense bar to engage in advocacy on this issue. The Rocha decision is ripe for a petition for rehearing en banc, and the Fifth Circuit should be asked to reconsider its holding in light of the overwhelming weight of authority from other circuits. Bar associations, including the American Bar Association’s Criminal Justice Section, should file amicus briefs explaining the practical consequences of the decision. The Department of Justice, which has an interest in preserving the effectiveness of corporate cooperation, should also weigh in, as the decision ultimately undermines the government’s ability to rely on internal investigations as a basis for charging decisions. This is not a partisan issue; it is a matter of sound legal policy. The attorney-client privilege is too important to be sacrificed on the altar of judicial formalism.

If you are facing a federal criminal investigation or have questions about the impact of the Rocha decision on your corporate compliance program, do not wait until the privilege is lost. Contact my office today for a confidential consultation. With over 25 years of experience as a federal prosecutor and defense attorney, I understand the nuances of corporate privilege law and can help you navigate this evolving landscape. We will review your investigation protocols, assess your exposure, and develop a strategy to protect your rights and your company’s interests. Call (202) 555-0199 or email [email protected] to schedule a meeting. The stakes are too high to leave to chance.