Control Group Test Law and Legal Definition

The control group test is a test used to determine whether the attorney-client privilege protects communications made by corporate employees. The test provides that the protection extends only to those communications made by an employee who is a member of the group with the authority to direct the corporation’s actions pursuant to that communication. However, the U.S. Supreme Court rejected the control group test in Upjohn Co. v. United States, 449 U.S. 383, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981).

Texas is the only state that rejected the Supreme Court’s guidance on the matter of control group test. Tex. R. Civ. Evid. 503 clearly adopt the control group test. [National Tank Co. v. Brotherton, 851 S.W.2d 193, 197-198 (Tex. 1993)]. Under Tex. R. Evid. 503(a)(2)(A)'s control group test, a person qualifies as the representative of a corporation or other entity if the person has the authority to either obtain professional legal services on behalf of the organization or to act on professional advice rendered pursuant to a request made under such authority. The person must be in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney. The control group test reflects the distinction between a corporate entity and an individual employee. It is based on the premise that only an employee who controls the actions of a corporation can personify the corporation. [National Tank Co. v. Brotherton, 851 S.W.2d 193, 197-198 (Tex. 1993)].