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Is the Garner Qualification of the Corporate Attorney-Client Privilege Viable After Jaffee v. Redmond?

This Article urges abandoning the rule governing the corporate attorney-client privilege that was first articulated in Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), and has since been adopted by other federal circuits. Garner held that the corporate attorney-client privilege during shareholder litigation is not absolute, but is rather a conditional privilege subject to a balancing test. In taking issue with Garner, the author argues that the corporate attorney-client privilege is absolute, in light of the U.S. Supreme Court's holding in Jaffee v. Redmond, 518 U.S. 1 (1996), that a conditional attorney-client privilege negates the purpose of the privilege and is therefore unacceptable. In addressing the fact that Jaffee involved the psychotherapist-patient privilege, the author explains that Jaffee found support for its analysis in Upjohn Co. v. United States, 449 U.S. 383 (1981), a U.S. Supreme Court case that involved the corporate attorney-client privilege. The author distinguishes, however, between shareholders in derivative suits and those in non-derivative suits and contends that derivative shareholders are exempt from the limitations on discovery that result from the corporate attorney-client privilege.