In a case that reminds us of the importance of sufficient Upjohn warnings, the 10th Circuit rejected an executive director’s privilege assertion over his statements to corporate counsel and affirmed his criminal conviction. The case raises the question whether counsel adequately advised the director about the privilege’s scope. United States v. Merida, 2016 WL 3741867 (CTA10 July 12, 2016). You may read the decision here.
Jason Brett Merida was the executive director of construction for the Choctaw Nation of Oklahoma. After issues arose over the Nation’s payment for steel products, the Nation retained an attorney to investigate the issues and file suit against the steel provider.
The Nation’s executives ordered Merida to meet with its counsel, and he appeared to find the lawyer, a court reporter, and a request to take his sworn statement. The lawyer told Merida that, “for purposes of the record,” his statement is “covered by the attorney-client privilege because [he does] work for the Choctaw Nation.”