ALF Urges Ninth Circuit To Adopt “Significant Purpose” Test For Applying Attorney-Client Privilege To Multi-Purpose Corporate Communications
Epic Games and Apple have been engaged in protracted California district court (and now Ninth Circuit) litigation concerning the manner in which Apple operates its App Store. One discovery-related issue that Apple is appealing to the Ninth Circuit involves the extent to which internal communications that have both legal and non-legal purposes are protected by the attorney-client privilege. The Ninth Circuit in In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021), adopted the “primary purpose” test for applying the attorney-client privilege to “dual-purpose communications,” i.e., communications “which could have both a non-legal purpose . . . as well as potentially a legal purpose.” For such communications, district courts “look at whether the primary purpose of the communication is to give or receive legal advice, as opposed to business . . . advice.”
But what about communications that have multiple purposes, or even multiple primary purposes? In In re Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C. Cir. 2014), the D.C. Circuit court of appeals held that documents may be eligible for attorney-client privilege protection if “obtaining or providing legal advice [was] a primary purpose, meaning one of the significant purposes of the communication.” The Kellogg opinion, authored by then-Circuit Judge Kavanaugh, states that determining whether obtaining or providing legal advice was “one of the significant purposes [is] an accurate and appropriate description of the primary purpose test.” Id. The Ninth Circuit has acknowledged, but not formally adopted, the Kellogg “significant purpose” test, thus leaving applicability of the attorney-client privilege to multi-purpose communications in a state of uncertainty and unpredictability.
ALF has submitted an amicus brief in support of Apple arguing that the Ninth Circuit should adopt the Kellogg “significant purpose” test for evaluating claims of attorney-client privilege in connection with multi-purpose corporate communications. The brief was authored by Alejandro (Alex) L. Sarria and Bradley E. Markano of Miller & Chevalier Chartered in Washington, D.C.
Issue Areas:
California
Case:
Epic Games, Inc. v. Apple, Inc. (25-2935) (Ninth Circuit)
Read the Amicus Brief:
Question(s) Presented:
To what extent does the attorney-client privilege apply to communications that have both primary legal and primary business purposes?
ALF’s Amicus Brief:
ALF’s amicus brief argues that the Ninth Circuit should formally adopt the Kellogg significant purpose test as part of its attorney-client privilege jurisprudence because that test is essential for achieving and maintaining predictability in evaluating claims of attorney-client privilege over corporate communications that have multiple, often intertwined, legal and non-legal purposes. As the Supreme Court has explained, “[a]n uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” Upjohn Co. v. United States, 449 U.S. 383, 393 (1981). The Kellogg significant purpose test serves this goal by enabling courts to decide attorney-client privilege questions without attempting to separate legal from non-legal purposes, weighing them against each other, and/or deciding which predominates—exercises that the Ninth Circuit has acknowledged “can quickly become messy in practice.” In re Grand Jury, 23 F.4th at 1094.
ALF also argues that the Kellogg significant purpose test is essential for fulfilling the primary objective of the attorney-client privilege, which is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co., 449 U.S. at 389. By allowing predictable and appropriate protection for multi-purpose communications, the Kellogg test provides necessary assurances to in-house and outside counsel that their communications with company personnel about the legal implications of practical business issues will be protected.
Contact:
Email ALF Executive Vice President & General Counsel Lawrence Ebner.
