Companies commonly maintain standing committees or groups to review information and decide on employee discipline and terminations. This raises the question of whether the attorney–client privilege protects from compelled disclosure the information presented to those groups when a lawyer is a member. One court has said no—because the employee information was not delivered to the group for the primary purpose of securing legal advice. Oubre v. Dow Chem. Co., 2026 U.S. Dist. LEXIS 105329 (E.D. Tex. May 12, 2026). Opinion available here. Let’s discuss and learn.
Performance Issues or Age Discrimination?
Long-time Dow Chemical employee Ms. Oubre, age 57, allegedly had a sterling record of performance before her immediate supervisor (Njigha) sent her a “last chance letter” in late 2024 identifying alleged work-performance lapses. Then, in early 2025, Njigha allegedly found another infraction and presented the issue at an Employee Review Meeting. The meeting did not end well for Oubre—Dow terminated her employment and she then brought an age-discrimination lawsuit.
Employee Review Meeting
The ERM team on this occasion included Oubre’s supervisor (Njigha), a neutral leader, a human resources representative, and an in-house lawyer. Njigha prepared a PowerPoint presentation to aid her report about Oubre’s purported misconduct. Dow objected to producing the PPT, claiming the attorney–client privilege protected it, and Dow properly identified the document on a privilege log. But Oubre did not buy Dow’s privilege assertion and filed a motion to compel.
Dow argued that Njigha prepared the PowerPoint deck for its legal counsel to provide advice on any action the company may take against Oubre. But was Dow’s proof supporting this argument robust enough?
Privilege Standard—Primary Purpose
The court recognized the Upjohn adage that the attorney–client privilege protects communications between a company’s employees and its legal counsel when employees make those communications at the direction of corporate superiors concerning matters within the scope of their duties. To implement this standard, and relying on United States v. Brown, 151 F.4th 647 (CA5 2025), the court required Dow to prove that the PowerPoint presentation was confidential and that Njigha created it “for the primary purpose of securing either a legal opinion or legal services.”
Ruling
The court focused on the primary purpose for creating the PowerPoint and, for several reasons, found that the primary purpose of the ERM—and thus the information supplied to the ERM—was business related. Deposition testimony of Dow employees revealed that the ERM’s purpose is to ensure that the company makes fair and equitable employee-discipline decisions. And Njigha gave the presentation to both a lawyer and non-lawyers. These facts, in the court’s view, showed that the ERM primarily served a business, rather than a legal, function.
But Njigha sent the PowerPoint deck to an in-house lawyer, and an in-house lawyer participated in the ERM decision-making process, so why did that not tip the scales in favor of privilege protection? Three reasons, according to the court. First, the fact that Njigha sent the presentation to the legal department does not automatically cloak it with privilege protection; rather, courts consider that fact as one of several when making a “primary purpose” determination. Second, and similarly, the lawyer’s presence in the ERM meeting does not necessarily invoke privilege protection; again, the court treats it as one piece of the primary-purpose puzzle for consideration.
Third, and finally, the court viewed the in-house lawyer’s participation in the decision whether to terminate Oubre as a privilege killer. This participation further suggested that her presence in the ERM process “served a business, rather than purely legal, function.”