Author: Bailey Glasser

Katherine E. Charonko and Elizabeth L. Stryker

This past January 11, we wrote a blog post about the Supreme Court entertaining arguments on the scope of the attorney-client privilege in the context of dual-purpose communications paraphrasing a question from Justice Kagan during the argument to Petitioner’s counsel to comment on the adage, “If it ain’t broke, don’t fix it.”

Well, turns out the Supreme Court did not want to wade into that potential quagmire, and instead turned around and entirely dismissed the writ of certiorari granted in In re Grand Jury as “improvidently filed.” Accordingly, the Ninth Circuit’s opinion which had been appealed to the Supreme Court that had held the “primary purpose” test controls when assessing attorney-client privilege for dual-purpose communications remains in full effect. In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021).This opinion is important reading for reasons other than the adoption of this test because the Ninth Circuit also discussed the disparate purposes of the attorney-client privilege and the work product protection doctrine and declined to adopt but did not fully reject the “a primary purpose” test.

 

In its opinion, the Ninth Circuit rejected the “because of” test that commonly applies in the work-product context for dual-purpose communications. In that context, work product protections apply when it can be fairly said that the “document was created because of anticipated litigation and would not have been created in substantially similar form but for the prospect of that litigation.” In re Grand Jury Subpoena (Mark Torf/Torf Env’t Mgmt.), 357 F.3d 900, 908 (9th Cir. 2004).The Court recognized, however, that the attorney-client privilege and the work product protection doctrine arise from different policy goals. The Court specifically noted that the work product doctrine is intended to ensure the fairness of the adversarial process by allowing litigators to creatively develop legal theories and strategies without having to disclose this process to opposing counsel. In contrast, the attorney-client privilege is not necessarily tied to an adversarial process and is instead intended as a safe haven for frank communication about any legal matter.Based on these differences, the Court declined to adopt the same “because of” test for both contexts.

 

Notably, the Ninth Circuit also left open the possibility that the “a primary purpose” test articulated in In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014) may apply to cases with facts other than the ones presented below. However, given the “messy in practice” determination of “the primary or predominant” purpose of a dual-purpose communication, the Court declined to adopt the Kellogg Court’s reasoning.

 

Due to the Supreme Court declining to address this issue further, state and federal courts must rely on the precedent developed in their respective jurisdictions along with analytical tools like in camera review to determine the scope of the attorney-client privilege for dual-purpose communications. Please reach out to either Kate Charonko or Elizabeth Stryker with any questions regarding privilege or other discovery issues you may have.