Amicus Curiae Brief — In Re Grand Jury

No. 21-1397

In the

Supreme Court of the United States

IN RE GRAND JURY

On Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

LAWYERS FOR CIVIL JUSTICE

IN SUPPORT OF PETITIONER

Jonathan M. Redgrave

Counsel of Record

Gareth T. Evans

Redgrave LLP

4800 Westfields Boulevard, Suite 250

Chantilly, Virginia 20151

(703) 592-1155

jredgrave@redgravellp.com

Counsel for Amicus Curiae

Lawyers for Civil Justice

317160

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

Whether a communication involving both legal and

nonlegal advice is protected by attorney-client privilege

where obtaining or providing legal advice was one of the

significant purposes behind the communication.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. The Single Primary Purpose Test Should

Be Rejected Because It Undermines

The Purposes Of The Federal Rules

And The Attorney-Client Privilege . . . . . . . . . . . 8

1.

The Single Primary Purpose Test

Is Not Practicable . . . . . . . . . . . . . . . . . . . . . 9

2.

The Single Primary Purpose Test Will

Lead To Needless Costs And Delay . . . . . 11

3.

The Single Primary Purpose Test

Is Inconsistent With The Goals

Of The Attorney-Client Privilege . . . . . . . 14

iii

Table of Contents

Page

B. The Significant Legal Purpose Test

Should Be Adopted As It Is Consistent

With The Purposes of the Federal Rules

And The Attorney-Client Privilege . . . . . . . . . . 19

1.

The Significant Legal Purpose Test

Is Consistent With The Goals Of

The Federal Rules A nd Is Both

Practical And Predictable . . . . . . . . . . . . . . 20

2.

The Significant Legal Purpose Test

Is Consistent With The Purpose

Of The Attorney-Client Privilege . . . . . . . 22

3.

T he Sig n i f ica nt Lega l P u r pose

Te st D o e s Not Ex p a nd T he

Privilege Or Shield Discoverable

Materials From Discovery . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Aetna, Inc. v. Mednax, Inc.,

No. 18-cv-02217, 2019 WL 6467349

(E.D. Pa. Dec. 2, 2019) . . . . . . . . . . . . . . . . . . . . . . . . 22

Apple, Inc. v. U.S. Dist. Ct.,

No. 22-70220 (9th Cir. Oct. 19, 2022) . . . . . . . . . . . . 12

Avila v. U.S. Dep’t of State,

No. 17-cv-2865, 2022 WL 2104483

(D.D.C. June 10, 2022) . . . . . . . . . . . . . . . . . . . . . . . . 22

Chevron Corp. v. Weinberg Grp.,

286 F.R.D. 95 (D.D.C. 2012) . . . . . . . . . . . . . . . . . . . . 14

Chore-Time Equip., Inc. v. Big Dutchman, Inc.,

255 F. Supp. 1020 (W.D. Mich. 1966) . . . . . . . . . . . . . 15

City of Roseville Emp. Ret. Sys. v. Apple, Inc.,

No. 19-cv-02033, 2022 WL 3083000

(N.D. Cal. Aug. 3, 2022) . . . . . . . . . . . . . . . . . . . . . . . 12

Fisher v. United States,

425 U.S. 391 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Fed. Trade Comm’n v.

Boehringer Ingelheim Pharms., Inc.,

892 F.3d 1264 (D.C. Cir. 2018) . . . . . . . . . . . . 21, 22, 25

v

Cited Authorities

Page

In re Dental Supplies Antitrust Litig.,

No. 16-cv-00696, 2017 WL 1154995

(E.D.N.Y. Mar. 27, 2017) . . . . . . . . . . . . . . . . . . . . . . . 18

In re Gen. Motors LLC Ignition Switch Litig.,

80 F. Supp. 3d 521 (S.D.N.Y. 2015) . . . . . . . . . . . 15, 20

In re Grand Jury,

23 F.4th 1088 (9th Cir. 2021) . . . . . . . . . . . . . 12, 22, 26

In re Kellogg Brown & Root, Inc.,

756 F.3d 754 (D.C. Cir. 2014) . . . . . . . . . . . . . . . passim

In re Sealed Case,

737 F.2d 94 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . 25

In re Vioxx Prod. Liab. Litig.,

501 F. Supp. 2d 789 (E.D. La. 2007) . . . . . . . . . . 10, 18

Jaffee v. Redmond,

518 U.S. 1 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Jones v. Carson,

No. 15-cv-00310, 2018 WL 11410070

(D.D.C. Mar. 30, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . 20

Jordan v. U.S. Dep’t of Lab.,

308 F. Supp. 3d 24 (D.D.C. 2018) . . . . . . . . . . . . . . . . 25

vi

Cited Authorities

Page

Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Note Funding Corp. v. Bobian Inv. Co.,

No. 93-cv-07427, 1995 WL 662402

(S.D.N.Y. Nov. 9, 1995) . . . . . . . . . . . . . . . . . . . . . . . . 11

Pitkin v. Corizon Health, Inc.,

No. 16-cv-02235, 2017 WL 6496565

(D. Or. Dec. 18, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . 21

Ramb v. Paramatma,

No. 19-cv-00021, 2021 WL 5038756

(N.D. Ga. Sept. 22, 2021) . . . . . . . . . . . . . . . . . . . . . . 22

Sayre v. Musicland Grp., Inc.,

850 F.2d. 350 (8th Cir. 1988) . . . . . . . . . . . . . . . . . . . . 3

SEC v. Microtune, Inc.

258 F.R.D. 310 (N.D. Tex. 2009) . . . . . . . . . . . . . . . . 25

Swidler & Berlin v. United States,

524 U.S. 399 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Trammel v. United States,

445 U.S. 40 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Jicarilla Apache Nation,

564 U.S. 162 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

vii

Cited Authorities

Page

United States ex rel. Wollman v.

Mass. Gen. Hosp., Inc.,

475 F. Supp. 3d 45 (D. Mass. 2020) . . . . . . . . . . . . . . 20

United States v. Rowe,

96 F.3d 1294 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 26

Upjohn Co. v. United States,

449 U.S. 383 (1981) . . . . . . . . . . . . . . . . . . . . . . . passim

Rules

Fed. R. Civ. P. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 24

Fed. R. Civ. P. 26(b)(1) . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 15

Fed. R. Civ. P. 26(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Fed. R. Civ. P. 26(b)(5)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 3

Fed. R. Civ. P. 26(b)(5)(A)(ii) . . . . . . . . . . . . . . . . . . . . 13-14

Fed. R. Crim. P. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fed. R. Evid. 501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 26

Fed. R. Evid. 502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

Fed. R. Evid. 502 Advisory Committee Notes . . . . . . . . 9

viii

Cited Authorities

Page

Other Authorities

1 Paul R. Rice, Attor ney- Client Pr ivilege

in the United States §§ 7:2, 7:3, and 7:9

(2021–2022 ed. 2021) . . . . . . . . . . . . . . . . . . . . 10, 16, 19

24 Charles Alan Wright , Fed. Prac. & Proc.

Evid. § 5484 (1st. ed.) (April 2022 Update) . . . . . . . 27

Lawyers for Civil Justice, Comments to the

Advisory Committee on Evidence Rules

of the Judicial Conference of the U.S. on

Proposed Revisions to Rule 502, Public

Comment 06–EV–025 (Jan. 5, 2007) . . . . . . . . . . . . . . 2

Lawyers for Civil Justice, Suggestion for Rulemaking

to the Advisory Committee on Civil Rules,

Privilege and burden: the need to amend Rules

26(b)(5)(A) and 45(e)(2) to replace “documentby-document” privilege logs with more effective

and proportional alternatives (Aug. 4, 2020) . . . . . . 2

Pet. for Writ of Mandamus, Apple, Inc. v. U.S. Dist.

Ct., No. 22-70220 (9th Cir. Sep. 30, 2022) . . . . . . . . . . 2

1

INTEREST OF AMICUS CURIAE1

Lawyers for Civil Justice (“LCJ”) is a national

coalition of defense trial lawyer organizations, law firms,

and corporations that promotes excellence and fairness

in the civil justice system to secure the just, speedy, and

inexpensive determination of civil cases. For over 30

years, LCJ has worked through the Rules Enabling Act

process to propose and advocate for procedural reforms

that promote balance in the civil justice system, reduce

the costs and burdens associated with litigation, and

make the resolution of civil disputes more consistent and

efficient. LCJ, and its members, have deep knowledge of

and interest in the substance and correct interpretation

and application of the Federal Rules of Civil Procedure

and Federal Rules of Evidence.

LCJ has submitted written comments related to

the Civil Rules Advisory Committee’s work to develop

potential amendments to the Rules—including on

privilege-related issues—and has acted as amicus curiae

in cases involving the interpretation and application of the

Rules to promote fairness, clarity, and certainty for all

civil cases. For example, LCJ submitted in 2007 extensive

public comments to the Advisory Committee on Evidence

Rules of the Judicial Conference of the United States on

1. Under Supreme Court Rule 37, amicus curiae certifies

that no counsel for a party authored this brief in whole, or in

part, and that no person or entity, other than amicus curiae, its

members, or its counsel, has made a monetary contribution

to the preparation or submission of this brief. Petitioner and

Respondent consented to the filing of this amicus curiae brief.

2

the then-proposed Federal Rule of Evidence 502, 2 and in

2020 submitted suggested amendments to the Federal

Rules of Civil Procedure governing privilege logging. 3

LCJ’s members are also deeply familiar with the key

changes in technology over the last 20 years that have

drastically increased the volume and altered the nature

of communications in business organizations, including

how in-house and outside counsel interact with business

clients to provide legal advice.

LCJ’s members both propound and respond to

discovery requests and third-party subpoenas. They

assert the attorney-client privilege when warranted and

challenge its assertion when not. Accordingly, LCJ’s

interest lies not in expanding the attorney-client privilege,

but in ensuring that when courts evaluate the privilege

status of dual-purpose communications, they apply a test

that is predictable, consistent, and practical and that

works fairly for both requesting and producing parties

in the context of the information age.

2. See Lawyers for Civil Justice, Comments to the Advisory

Committee on Evidence Rules of the Judicial Conference of the

U.S. on Proposed Revisions to Rule 502, Public Comment 06–

EV–050 (Jan. 5, 2007), https://www.uscourts.gov/sites/default/

files/fr_import/06-EV-050.pdf.

3. See Lawyers for Civil Justice, Suggestion for Rulemaking

to the Advisory Committee on Civil Rules, Privilege and Burden:

the need to amend Rules 26(b)(5)(A) and 45(e)(2) to replace

“document-by-document” privilege logs with more effective and

proportional alternatives (Aug. 4, 2020), https://www.uscourts.

gov/sites/default/files/20-cv-r_suggestion_from_lawyers_for_

civil_ justice_-_rules_26_and_45_privilege_logs_0.pdf.

3

Because LCJ is an organization comprised of both

corporations and their outside lawyers, LCJ has another

interest in ensuring that the rules applicable to privilege

(1) are practicable given the way modern corporations

communicate with their counsel; and (2) facilitate the

attorney-client relationship by ensuring that legal advice

and requests for legal advice are protected, such that

open and frank discussion between lawyers and clients

is not chilled.

INTRODUCTION

“[T]he purpose of the Federal Rules of Civil

Procedure [is] to provide uniform guidelines for all federal

procedural matters.” Sayre v. Musicland Grp., Inc., 850

F.2d. 350, 354 (8th Cir. 1988).4 Those Rules, along with

the Federal Rules of Evidence, establish for all federal

civil litigation the substantive scope of and choice of law

governing the attorney-client privilege (Federal Rule of

Evidence 501), the circumstances under which privilege

is waived (Federal Rule of Evidence 502), a party’s right

to withhold its privileged information from disclosure

(Federal Rule of Civil Procedure 26(b)(1)), and the

procedures by which a party must provide its adversary

sufficient information about such claims to meaningfully

challenge them (Federal Rule of Civil Procedure 26(b)(5)

(A)). Now, a split in authority on the circumstances under

which the attorney-client privilege protects dual-purpose

4. The Court’s ruling here will have significant ramifications for

all criminal and civil matters where dual-purpose communications

involving privileged advice are subject to challenge. LCJ’s

viewpoints are focused mainly on the impacts in civil litigation to

help the Court evaluate the dispute and articulate the appropriate

standard for assessing privilege claims across all matters.

4

communications undermines the uniformity governing

privilege claims that the Federal Rules seek to promote,

unilaterally alters the scope of discovery as defined in

Federal Rule of Civil Procedure 26(b)(1), and thwarts the

purpose and intent of the Rules by creating inconsistencies

in the standards for asserting and sustaining privilege

claims among federal jurisdictions.

In today’s corporate environment, businesses often

rely on their counsel to serve a variety of legal and

nonlegal roles. Both in-house and outside attorneys have

business acumen and in-depth knowledge of their clients’

business. They often wear multiple hats and advise clients

on a broad array of both legal and nonlegal matters

and issues, including employee relations, executive

compensation, external relations, advertising, technical

and scientific matters, intellectual property, securities,

lending, transactions, and internal investigations. For

that reason, communications with in-house and outside

attorneys commonly intertwine both legal and nonlegal

considerations, making it difficult to separate the legal

and nonlegal purposes of the communication. The right to

protect the portions of such dual-purpose communications

that relate to legal advice from disclosure to adversaries

through the attorney-client privilege is imperative for the

business community if the very purpose of the privilege

is to be realized.

How individuals communicate in a business context

is dramatically different now than even 20 years ago.

Modern communication is not limited to topic-specific

memoranda or discrete letters and emails, but includes

strings of messages on email, chat, or text message

platforms, collaboration platforms, and other settings

5

(such as comments embedded in an electronic document)

where legal advice is requested and received interwoven

with other content that is not legal in nature. The

continually emerging communication technologies create

more difficulty in isolating and determining a singular

or principal purpose for a communication, particularly

as there can be many purposes interwoven into a thread,

string, or other combinations of information that may be

considered a communication.

This Court has the chance to establish a superior test

for privilege protection of dual-purpose communications

that supports the purposes of the Rules by rejecting the

“single primary purpose” test and adopting instead the

“significant legal purpose” test. Adopting the significant

legal purpose test will: (1) establish uniformity as to

privilege standards; (2) promote free and frank exchange

of information between attorneys and their clients; and

(3) reinforce the fundamental proposition that a protected

attorney-client communication does not lose its privilege

protection simply because it appears next to or intermixed

with other information. To do otherwise would chill open

communications between client and counsel, thwarting

the purpose of the attorney-client privilege and imposing

additional burdens on the parties and the courts in

discovery.

SUMMARY OF THE ARGUMENT

The Federal Rules of Civil Procedure and Federal

Rules of Criminal Procedure instruct courts to interpret

the Rules to promote efficiency and fairness, 5 yet the

5. The Federal Rules of Civil Procedure “should be

construed, administered, and employed by the court and the

6

single primary purpose test adopted by the Ninth Circuit

does the opposite. The single primary purpose test is

effectively impossible to apply in practice, as the courts

and the parties are required to make a subjective post-hoc

determination of the primary purpose among the multiple

purposes of a communication—a determination that will

often be based on speculation. By requiring impractical

and unpredictable guesswork, the single primary purpose

test is unworkable in the context of modern business

communications and thus fails to serve the intent of the

Federal Rules of offering a uniform, predictable, and fair

procedural framework.

The single primary purpose test will also unjustifiably

increase the cost and delay associated with document

review and privilege logging, ensuring that the resolution

of disputes is anything but “speedy” and “inexpensive.”

In addition, the single primary purpose test imperils

the trust of clients as to the expectation that they can

freely and in confidence seek and obtain legal advice

from counsel. Businesses seek their counsel’s advice for

overlapping legal and nonlegal purposes every day, and

requests for legal advice can be packaged together or

intertwined with nonlegal subjects. By excluding such

communications from the attorney-client privilege simply

because a court determines that, although there was an

undeniable legal purpose involved, the communication

was motivated more strongly by nonlegal concerns, the

parties to secure the just, speedy, and inexpensive determination

of every action and proceeding.” Fed. R. Civ. P. 1. The Federal

Rules of Criminal Procedure “are to be interpreted to provide

for the just determination of every criminal proceeding, to secure

simplicity in procedure and fairness in administration, and to

eliminate unjustifiable expense and delay.” Fed. R. Crim. P. 2.

7

single primary purpose test undermines the attorneyclient privilege. To be blunt, the test casts a cloud of

uncertainty over the availability of privilege to shield what

are otherwise protected communications.

The single primary purpose test also imposes artificial

and unworkable constraints on corporate and other clientlawyer communications. Lawyers and their clients will be

forced to discuss only legal matters in a conversation and

then end it to assure that the privilege that should guard

and protect their attorney-client relationship is recognized

by a court. That limitation ignores how conversations

really occur, and an expectation that conversations related

to legal advice will not also include some business purpose

is unrealistic.

The significant legal purpose test adopted by the D.C.

Circuit in In re Kellogg Brown & Root, Inc., 756 F.3d 754,

760 (D.C. Cir. 2014), is a more easily applied, practical,

and predictable standard that furthers the directive of

the Rules and is likely to lead to fewer time-consuming

and expensive privilege disputes and in camera reviews.

It also better protects the fundamental interest in open

and frank communications that underlies the attorneyclient privilege. And it better reflects the reality of

communications between clients and attorneys in the

modern era as it does not mandate the difficult—if not

impossible—assessment of the relative weights of legal

and nonlegal purposes underlying a communication years

after it was made.

Moreover, the significant legal purpose test does not

expand the scope of privilege, nor does it unjustifiably

shield from discovery relevant, nonlegal business-related

8

information because the burden of showing a significant

legal interest for a given communication remains a

substantial one and non-privileged factual information

remains discoverable.

ARGUMENT

A. The Single Primary Purpose Test Should Be

Rejected Because It Undermines The Purposes

Of The Federal Rules And The Attorney-Client

Privilege.

The single primary purpose test applied by the

Ninth Circuit conflicts with the purposes of the Federal

Rules in establishing a uniform, practical framework to

permit parties to protect their privileged information.

The test is impractical and undermines the attorneyclient privilege. It is often impossible in applying the

single primary purpose test to conclude reliably whether

a legal or nonlegal purpose was the primary purpose

of the communication. A court must—in hindsight and

usually with little or no contextual information—identify

the multiple purposes of a communication, determine the

relative importance of each purpose for each participant,

and then select a primary purpose.

The inherent subjectivity in making such a posthoc determination g uarantees inconsistency and

uncertainty in parties’ privilege assertions, challenges

to those assertions, and the courts’ resulting privilege

determinations, undermining the Rules’ goal of providing

consistent and fair procedures. The single primary

purpose test also thwarts the Rules’ stated intent of speedy

and inexpensive resolution of civil disputes by spawning

9

costly privilege disputes that burden both litigants and

courts. The unpredictability as to what attorney-client

communications will be protected in applying this test

also hinders full and frank communications between

clients and their attorneys, undermining the fundamental

purpose of the attorney-client privilege and of the Federal

Rules that protect it.

1.

The Single Primary Purpose Test Is Not

Practicable.

As this Court has recognized, “for the attorneyclient privilege to be effective, it must be predictable.”

United States v. Jicarilla Apache Nation, 564 U.S. 162,

183 (2011). The Federal Rules have similarly recognized

the importance of uniformity and predictability in

rules governing privileges. See Fed. R. Evid. 502

Advisory Committee Notes (“The rule seeks to provide

a predictable, uniform set of standards under which

parties can determine the consequences of a disclosure

of a communication or information covered by the

attorney-client privilege or work-product protection.”).

To that end, the Court has consistently rejected the

use of balancing tests in determining when privileges

apply because such tests inherently make privilege

determinations substantially less predictable. See, e.g.,

Swidler & Berlin v. United States, 524 U.S. 399, 409–11

(1998) (rejecting a test under which attorney-client

communications could lose privilege protection after the

client’s death if of sufficiently substantial importance to

a criminal investigation); Jaffee v. Redmond, 518 U.S. 1,

17 (1996) (rejecting a test balancing the evidentiary need

for disclosure against a patient’s privacy interests when

applying the psychotherapist-patient privilege); Upjohn

10

Co. v. United States, 449 U.S. 383, 393 (1981) (rejecting a

test that “restricts the availability of the [attorney-client]

privilege to those officers who play a ‘substantial role’ in

deciding and directing a corporation’s legal response”).

The Ninth Circuit’s single primary purpose test is

impracticable, and so will not achieve the uniformity

and predictability parties need. As observed in Kellogg,

“trying to find the one primary purpose” of a dual-purpose

communication “can be an inherently impossible task.”

756 F.3d at 759.

The inherent difficulties presented by the single

primary purpose test arise in connection with the

complexities of regulation and laws that impact individuals

and corporations alike. For example, corporate attorneys

often have responsibilities related to, and make decisions

about, nonlegal issues facing the enterprises for which

they work. In re Vioxx Prod. Liab. Litig., 501 F. Supp. 2d

789, 797 (E.D. La. 2007); see also 1 Paul R. Rice, AttorneyClient Privilege in the United States § 7:3 (2021–2022 ed.

2021) (commenting on the ease with which email permits

counsel to participate in regular business matters). It is

common for communications with corporate counsel to

reflect counsel’s legal and nonlegal insights intermingled

together, or to reflect business information that aids

counsel in providing legal advice. It is also common in

today’s business age for requests for legal advice and

the resulting advice to be found within the context of

communications channels or documents where multiple

purposes of the overall communication abound. 6 The

6. As noted by Petitioner and amici, such intermingling can

occur in many corporate situations. See Pet’r’s Br. 15–16 (pointing

11

impossibility of not only disentangling and inventorying

the many motivations underlying a communication but

also assigning one of them primacy will make producing

parties uncertain as to what privilege claims they can

legitimately assert, will cause requesting parties to doubt

what privilege claims they can legitimately challenge, and

will leave courts less confident in how to resolve privilege

disputes.

2.

The Single Primary Purpose Test Will Lead

To Needless Costs And Delay.

The single primary purpose test also exacerbates the

already costly and prolonged process of litigating privilege

disputes, especially where parties produce millions of

documents and assert privilege over tens of thousands

of documents. Courts will struggle to apply the single

primary purpose test, a difficulty that the Kellogg court

illustrated as determining, for example, “whether the

purpose was A or B when the purpose was A and B.” See

Kellogg, 756 F.3d at 759 (emphasis added).

out that a lawyer’s advice about corporate law may discuss

different legal alternatives as well as the business risks of those

alternatives) (citing Note Funding Corp. v. Bobian Inv. Corp., No.

93-CIV-7427, 1995 WL 662402, at *2–3 (S.D.N.Y. Nov. 9, 1995));

N.Y. Intell. Prop. Law Ass’n’s Br. 11, Nov. 17, 2022 (explaining

that patent clients seeking legal advice rely on the nonlegal

scientific expertise of intellectual property counsel to inform legal

advice); Chamber of Com.’s Br. 15–16, June 1, 2022 (providing the

hypothetical example of a corporate executive turning to in-house

counsel for assistance dealing with a crisis with inseparable legal

and business implications); Wash. Legal Found.’s Br. 8–9, June 1,

2022 (discussing how in-house counsel may be central to corporate

compliance programs and internal investigations, activities that

may be motivated by both legal and nonlegal concerns).

12

For example, in City of Roseville Employees’

Retirement System v. Apple Inc., No. 19-cv-02033, 2022

WL 3083000 (N.D. Cal. Aug. 3, 2022), a magistrate judge

thoroughly examined various documents withheld on

privilege grounds and supplemental attorney declarations

supporting the withholding. After expressing uncertainty

whether certain documents served a primarily legal

purpose, the magistrate judge permitted the privilege

claimant to file yet more supplemental declarations

supporting, with detailed facts, its assertions that the

documents served a specific and primarily legal purpose.7

City of Roseville Emp. Ret. Sys., 2022 WL 3083000, at

*14, *18–19, *24–25. As a practical matter, gathering

declarations or similar evidence for often thousands of

disputed privilege assertions is extremely time consuming,

burdensome, and expensive—and frequently unworkable,

especially for parties with limited means.

Furthermore, the single primary purpose test creates

costly problems well before the matter is even brought to

the court for resolution. Modern complex litigation often

requires parties to collect, review, and produce tens

of thousands to millions of documents, and reviewers

ordinarily only have immediately available the four corners

7. Further illustrating the difficulties litigants face in

understanding the permissible scope of privilege claims under

the Ninth Circuit’s ruling, Apple sought a writ of mandamus and

cited the Ninth Circuit’s language in In re Grand Jury leaving

open the possibility of adopting the significant legal purpose test

from Kellogg. Pet. for Writ of Mandamus, at 9, Apple Inc. v. U.S.

Dist. Ct., No. 22-70220 (9th Cir. Sep. 30, 2022). The Ninth Circuit

denied the writ but noted that the district court may wish to

reconsider its order after the Court rules in this case. Apple Inc.

v. U.S. Dist. Ct., No. 22-70220 (9th Cir. Oct. 19, 2022).

13

of a document and any associated attachments or “family”

members. They are usually required to make quick

judgments about a dual-purpose communication without

a substantial understanding of the communication’s

underlying context and history. Determining the single

primary purpose of each communication could require

making inquiries to the sender and possibly the recipients

of the communication—if doing so is even possible,

given that significant time has often passed between

the communication and the review, and none of the

participants involved in the original communication may

still be available for questioning.

The necessity for such inquiries would likely slow the

document review process to a crawl, needlessly elongating

and making more expensive an already burdensome

exercise. Even under the unrealistic assumption that

such an inquiry could be made about the thousands of

dual-purpose communications a producing party may

need to review, it is unrealistic to expect that counsel or

the person communicating with counsel will reliably recall

which of the purposes was primary, or even to have ever

had the knowledge to determine what “the” single primary

purpose was. That dual-purpose communications often

involve senior company leadership further exacerbates

the difficulties in determining the single primary purpose

of a communication post-hoc, given such individuals’

responsibility for making business decisions that comply

with the law.

In addition, reviewing attorneys often must not only

make a good-faith determination about which documents

to withhold but also describe applicable privileges for all

withheld content on a privilege log. See Fed. R. Civ. P. 26(b)

14

(5)(A)(ii) (requiring parties to “describe the nature” of

withheld communications “without revealing information

itself privileged or protected, [that] will enable other

parties to assess the claim”). The process is burdensome,

time-consuming, and expensive for the producing parties,

and yet the log is often of limited utility to the requesting

parties. See Chevron Corp. v. Weinberg Grp., 286 F.R.D.

95, 99 (D.D.C. 2012) (“[T]he modern privilege log [is] as

expensive to produce as it is useless.”). When a documentby-document log is required, having to justify withholding

dual-purpose communications with an explanation of the

single primary purpose supporting each claim would

greatly multiply the burden and time required for the

logging process. The attorneys preparing the privilege

log could face the daunting task of identifying, for every

document and based on facts rather than conclusory

assertions, not only the legal purpose of the communication

but each nonlegal purpose and an explanation of why the

legal one is the more significant. That exercise is perilous

and only encourages more challenges to privilege claims.

3.

T he Si ngle P r i m a r y P u r p o s e Te s t I s

Inconsistent With The Goals Of The AttorneyClient Privilege.

The single primary purpose test frustrates the goals

underlying the attorney-client privilege and undermines

the attorney-client relationship in four ways.

First, the single primary purpose test threatens

to improperly strip legitimate legal advice of privilege

protection simply because it is combined with nonlegal

content in the same communication. Even if it were

possible to reliably determine that the nonlegal purpose

15

of a communication was “primary,” the communication

still deserves protection if obtaining legal advice was

a significant reason behind it—no matter how content

related to legal advice may be bundled or transmitted

with other information. As one court has observed,

“[w]here a lawyer possesses multifarious talents, his clients

should not be deprived of the attorney-client privilege,

where applicable, simply because their correspondence

is also concerned with highly technical matters.” ChoreTime Equip., Inc. v. Big Dutchman, Inc., 255 F. Supp.

1020, 1023 (W.D. Mich. 1966). “Accordingly, an attorneyclient privilege that fails to account for the multiple and

often-overlapping purposes . . . would ‘threaten[ ] to limit

the valuable efforts of corporate counsel to ensure their

client’s compliance with the law.’” In re Gen. Motors LLC

Ignition Switch Litig., 80 F. Supp. 3d 521, 530 (S.D.N.Y.

2015) (second alteration in original) (quoting Upjohn, 449

U.S. at 393).

Requiring the disclosure of legal advice simply

because it is combined with nonlegal concerns within the

same communication conflicts with the Federal Rules

and would effectively broaden the scope of discovery

in litigation, which is limited to nonprivileged matters.

The single primary purpose test therefore represents a

unilateral amendment to the Rules, bypassing the role

of this Court, Congress, and the Rules Enabling Act and

effectively circumventing the Judicial Conference of the

United States. See Fed. R. Civ. P. 26(b)(1) (“Parties may

obtain discovery regarding any nonprivileged matter that

is relevant to any party’s claim or defense and proportional

to the needs of the case . . .”). Such an approach also lacks

a rational basis and is fundamentally unjust. It has long

been accepted that the legal portions of dual-purpose

16

communications “deserve protection under the privilege

because that protection will further its goal.” Rice, supra,

§ 7:9. Under the single primary purpose test, however,

legal advice that would be privileged standing alone loses

that protection simply because it is intermingled with

business considerations.

Moreover, a trial judge or magistrate’s subjective,

post-hoc evaluation of the primary purpose of a given

communication based on limited information will be

inherently unreliable (and unpredictable), and a party

may seek appellate review of privilege decisions only in

very limited circumstances. See Mohawk Indus., Inc. v.

Carpenter, 558 U.S. 100, 103, 114 (2009) (holding adverse

rulings about privilege do not fall within the collateral

order doctrine). As a result, companies will have little

choice but to limit the free flow of information in their

communications with corporate counsel, even where legal

advice is sought, in stark contrast to the fundamental

purpose of the attorney-client privilege: “to encourage

full and frank communication between attorneys and their

clients.” Upjohn, 449 U.S. at 389.

Second, the unpredictability of the single primary

purpose test discourages the open exchange of information

between lawyer and client. Clients may forego consulting

counsel out of fear that in future litigation a court may

decide that while seeking legal advice may have been a

purpose of the communication, it was not the primary

purpose of the communication—thus exposing the

communication to an adversary. In addition, clients may

withhold from their counsel business information relevant

to the legal advice sought, to limit communication with

counsel purely to legal matters, which would hinder the

17

attorney’s ability to provide sound legal advice to the

client. The result is to chill open communication between

clients and attorneys and to inhibit attorneys’ ability

to “formulate sound advice” and “ensure their client’s

compliance with the law.” Id. at 392.

If the single primary purpose test applies, reasonable

lawyers communicating with their clients would need to

assess whether the privilege protection is at risk because

there are business elements to the communication that

could be later considered principal. That assessment is

impractical given the pace of business decision-making

and the need for legal advice to follow complex law. Yet the

single primary purpose test would require lawyers to try

to divine mid-communication what purpose could be seen

later as primary, and to then advise the client to change

how it is communicating (or even to stop communicating

entirely) due to the risk that the communication could

later be exposed as unprivileged.

Third, the chilling effect of the significant primary

purpose test creates ethical dilemmas for counsel. Besides

hampering the relationship of open communication

between the lawyer and client, professional ethical

obligations would likely place many new burdens on the

lawyer by requiring the lawyer to instruct the client on

the scope of communications allowed under the single

primary purpose test and the potential loss of privilege

protection should the client continue to communicate about

matters in a way that a court may later find did not have

as its primary purpose the provision of legal advice. See

Model Rules of Pro. Conduct r. 1.4(b) (Am. Bar Ass’n 2019)

(“A lawyer shall explain a matter to the extent reasonably

necessary to permit the client to make informed decisions

18

regarding the representation.”). The resulting verbal

watchdog role, combined with a nervous client’s resulting

reticence to fully share information with the lawyer, could

obstruct the lawyer’s ability to fulfill his or her ethical

duties to provide competent representation and to consult

with the client to achieve the client’s objectives. See id.

rr. 1.1 (duty of competence), 1.4(a)(2) (duty to “reasonably

consult with the client”).

Finally, the single primary purpose test also

creates unnecessary obstacles and undue burdens for

in-house counsel and their corporate clients. Courts

have recognized the deep integration of in-house counsel

into all aspects of the modern corporation. See, e.g., In

re Dental Supplies Antitrust Litig., No. 16-cv-00696,

2017 WL 1154995, at *3 (E.D.N.Y. Mar. 27, 2017) (“Inhouse counsel wear a variety of corporate hats: lawyer,

business advisor, corporate officer and dealmaker, to

name just a few.”); In re Vioxx, 501 F. Supp. 2d at 798

(recognizing that in-house counsel are consulted on a

variety of legal and nonlegal matters because “lawyers are

some of the most intelligent and informed people within

corporations”). Business considerations commonly have

legal implications and vice-versa, and a communication

from in-house counsel conveying legal advice will often

contain contextual business information necessary for

the client to understand the legal advice. See In re Vioxx,

501 F. Supp. 2d at 798 (“Often business advice needs to

be mixed with legal advice so that the legal advice is fully

understood and followed by the client.”).

Legal advice rendered by in-house counsel to a

corporation cannot realistically be siloed from the

corporation’s business interests, as “virtually all internal

19

legal communications are, to some extent, relevant to

the business ends of the company.” Rice, supra, § 7:2.

This business reality tracks the technological evolution

of communications platforms through which in-house

lawyers are asked to provide, and do provide, legal

advice to help companies meet legal obligations that is

intermingled with nonlegal matters.

At its core, the single primary purpose test places

form over substance. Under the test, legal advice that

would be privileged standing alone loses that protection

simply because it includes discussion of related business

considerations such that the legal purpose could be

considered (by non-participants to the conversation, and

often years later) not to be primary.

B. The Significant Legal Purpose Test Should Be

Adopted As It Is Consistent With The Purposes

of the Federal Rules And The Attorney-Client

Privilege.

The dual-purpose communication test that better

promotes the goals of the Federal Rules and protects

the attorney-client privilege is the significant legal

purpose test set forth by the D.C. Circuit. This test

requires litigants and courts to ask whether obtaining

or providing legal advice was “one of the significant

purposes of the communication.” Kellogg, 756 F.3d at 760.

If a legal purpose was a significant factor motivating the

communication, then the communication is privileged. Id.

Unlike the single primary purpose test, the significant

legal interest test can be applied more consistently, fairly,

and predictably in practice; is in harmony with the reality

20

of communications in today’s corporate environment; and

promotes the open discourse the attorney-client privilege

was designed to protect. By adopting this test and making

clear that it applies to each discrete communication

wherever it may be located, the Court will provide needed

clarification and certainty across all federal courts.

1.

The Significant Legal Pur pose Test Is

Consistent With The Goals Of The Federal

Rules And Is Both Practical And Predictable.

The significant legal purpose test in practice leads

to greater predictability and certainty than the single

primary purpose test and leads to fewer costly disputes,

thereby promoting the Federal Rules’ purposes of

uniformity and the speedy and inexpensive resolution

of actions. The test requires resolving only a single

question: whether obtaining or providing legal advice was

a significant purpose of the communication, no matter

what other purposes may have existed. 8 Once a significant

legal purpose has been identified, courts need not grapple

8. That a communication had at least one significant legal

purpose can be established through the communication on its

face, declarations of the claimant and its attorneys, or the totality

of the circumstances. See, e.g., United States ex rel. Wollman v.

Mass. Gen. Hosp., Inc., 475 F. Supp. 3d 45, 64–65 (D. Mass. 2020)

(examining the totality of the circumstances in determining that

an internal investigation report was prepared with a significant

purpose of providing legal advice); Jones v. Carson, No. 15cv-00310, 2018 WL 11410070, at *22–23 (D.D.C. Mar. 30, 2018)

(presenting document-by-document findings after in camera

review); In re Gen. Motors, 80 F. Supp. 3d at 530–31 (examining

the totality of the circumstances and outside counsel’s declaration

in holding that witness interview notes were privileged).

21

with the relative significance of any nonlegal purpose. See

Kellogg, 756 F. 3d at 759–60.

The test thus necessar ily involves a simpler

determination than the single primary purpose test,

which requires resolving that same initial question of

whether a significant legal purpose exists, but then also

identifying every possible legal and nonlegal purpose

underlying the communication and weighing them against

each other to determine which is predominant—often an

impossible task. See Pitkin v. Corizon Health, Inc., No. 16cv-02235, 2017 WL 6496565, at *3–4 (D. Or. Dec. 18, 2017)

(rejecting the single primary purpose test as unworkable

“in circumstances where a communication serves many

overlapping purposes, and none of them can reasonably

be considered ‘primary’ over any other”).

By avoiding the need to engage in an after-the-fact

weighing of legal and nonlegal purposes, the significant

legal purpose test is “clearer, more precise, and more

predictable,” Kellogg, 756 F.3d at 760, and “helps to reduce

uncertainty regarding the attorney-client privilege,”

Fed. Trade Comm’n v. Boehringer Ingelheim Pharms.,

Inc., 892 F.3d 1264, 1268 (D.C. Cir. 2018). This greater

predictability and simplicity of application can be expected

to lead to both a lesser incidence of privilege disputes

(because the parties or more likely to agree on whether

a legal purpose exists at all than whether it is the sole

primary purpose of a dual-purpose communication) and

reduced burden and delay when disputes do arise (because

the one-step inquiry is relatively simpler and can often

be resolved without resorting to extrinsic evidence such

as attorney declarations).

22

District courts across the nation have adopted the

significant legal purpose test because of its administrability

and predictability. See, e.g., Boehringer, 892 F.3d at 1267

(applying Kellogg’s test to communications with in-house

counsel about settlement of patent dispute); Ramb v.

Paramatma, No. 19-cv-00021, 2021 WL 5038756, at *3–4

(N.D. Ga. Sept. 22, 2021) (applying the significant legal

purpose test in the context of communications with outside

counsel regarding real estate transactions); Aetna Inc. v.

Mednax, Inc., No. 18-cv-02217, 2019 WL 6467349, at *1

(E.D. Pa. Dec. 2, 2019) (“If getting or receiving legal advice

‘was one of the significant purposes of the [communication]’

the privilege should apply, even if there were additional

purposes . . .”).9 Indeed, even the Ninth Circuit recognized

the value of the significant legal purpose test. See In re

Grand Jury, 23 F.4th 1088, 1094 (9th Cir. 2021) (“We see

the merits of the reasoning in Kellogg.”).

2.

The Significant Legal Pur pose Test Is

Consistent With The Purpose Of The AttorneyClient Privilege.

Over forty years ago, this Court articulated the

purpose and foundations of the attorney-client privilege

as follows:

9. The government has presumably benefited from the

significant legal purpose test in litigation regarding whether dualpurpose communications can be withheld on the basis of privilege

in responses to Freedom of Information Act (“FOIA”) requests,

as such cases are frequency brought in the District of Columbia

where Kellogg applies. See, e.g., Avila v. U.S. Dep’t of State, No.

17-cv-2865, 2022 WL 2104483, at *13 (D.D.C. June 10, 2022) (citing

Kellogg’s test and permitting the government to withhold from a

response to a FOIA request communications containing a mix of

legal and policy advice).

23

[T]o 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.

The privilege recognizes that sound legal advice

or advocacy serves public ends and that such

advice or advocacy depends upon the lawyer’s

being fully informed by the client.

Upjohn, 449 U.S. at 389. By ensuring that requests for

legal advice will not lose their privilege protection simply

because they are intertwined with discussion of nonlegal

concerns, the significant legal purpose test promotes open

communication and ensures that the client can obtain the

maximum benefit from the attorney-client relationship

by permitting the client to safely share with counsel all

information potentially relevant to securing legal advice.

See Trammel v. United States, 445 U.S. 40, 51 (1980) (“The

lawyer-client privilege rests on the need for the advocate

and counselor to know all that relates to the client’s

reasons for seeking representation if the professional

mission is to be carried out.”).

Adopting the significant legal purpose test also

furthers the Court’s role in interpreting the common law

“in the light of reason and experience,” Fed. R. Evid.

501, as reason and experience recommend a test for dualpurpose communications that courts can apply with the

least possible difficulty, while recognizing that no uniform

rule “will necessarily enable courts to decide questions

such as this with mathematical precision.” Upjohn, 449

U.S. at 393. The significant legal purpose test meets

that criterion while also fulfilling the mandate of the

Federal Rules to construe and administer the Rules “to

24

secure the just, speedy, and inexpensive determination”

of actions. Fed. R. Civ. P. 1. The test provides a clear,

consistent standard that enables the claimant of the

privilege to efficiently comply with Rule 26(b)(5)’s logging

requirements and allows the parties and the courts to

efficiently resolve disputed claims.

3.

The Significant Legal Purpose Test Does Not

Expand The Privilege Or Shield Discoverable

Materials From Discovery.

The attorney-client privilege withholds otherwise

discoverable information from the factfinder, and thus

the privilege “applies only where necessary to achieve

its purpose.” Fisher v. United States, 425 U.S. 391, 403

(1976). The significant legal purpose test satisfies that

requirement. As the concurrence in Boehringer observed,

“the court’s opinion [adopting the significant legal

purpose test] should not be mistaken for an expansion of

the attorney-client privilege.” 892 F.3d at 1269 (Pillard,

J., concurring). The claimant exclusively carries the

burden of establishing the privilege for dual-purpose

communications and that burden is substantial and applies

to each withheld communication:

W here a pr iv ilege claimant has closely

intertwined purposes—a legal purpose as well

as a business purpose—it must still establish

to a “reasonable certainty,” that “obtaining or

providing legal advice was one of the significant

purposes” animating each communication

withheld.

25

Boehringer, 892 F.3d at 1269 (citations omitted). The

concurrence further observes that the magistrate judge

had reviewed the documents in camera, considered the

claimant’s affidavit supporting the privilege claims, and

found that the claimant met its burden. Id. at 1270–71.

This substantial burden of proof mitigates the risk

of overreach. Under any test, the party asserting the

privilege must make a “clear showing” that the lawyer

involved in a communication was acting “in a professional

legal capacity” rather than exercising “responsibilities

outside the lawyer’s sphere.” In re Sealed Case, 737 F.2d

94, 99 (D.C. Cir. 1984); see also SEC v. Microtune, Inc.,

258 F.R.D. 310, 315 (N.D. Tex. 2009) (“The proponent must

provide sufficient facts by way of detailed affidavits or

other evidence to enable the court to determine whether

the privilege exists.”). The significant legal purpose

test leaves existing guardrails protecting the discovery

interest from overbroad privilege claims intact; for

example, simply copying an attorney on a communication

or including an attorney in a distribution list will not make

the communication privileged. See Jordan v. U.S. Dep’t

of Lab., 308 F. Supp. 3d 24, 43–44 & n.9 (D.D.C. 2018)

(applying Kellogg and finding a communication was not

privileged where the sender copied an attorney to keep

him apprised of business communications in case there

was a future legal dispute).

No matter what the test, the relevant facts underlying

a request for legal advice are not protected from disclosure

by the attorney-client privilege. See, e.g., Upjohn, 449

U.S. at 395 (“The privilege only protects disclosure of

communications; it does not protect the disclosure of

the underlying facts by those who communicated with

26

the attorney . . . .”). Only the facts communicated by the

client to the attorney to obtain informed legal advice (or

as incorporated by the attorney in communicating legal

advice to the client) are protected as essential to the

protected communication. See id. at 390 (“[T]he privilege

exists to protect not only the giving of professional

advice to those who can act on it but also the giving of

information to the lawyer to enable him to give sound

and informed advice.”). At common law, the attorneyclient privilege protects the communication of facts by

the client to the attorney. See United States v. Rowe, 96

F.3d 1294, 1296 (9th Cir. 1996) (common law extends the

attorney-client privilege to communications made “for the

purpose of facilitating the rendition of professional legal

services.”). Protecting communications with attorneys

where a significant (but not the sole) purpose is to obtain

legal advice applies the common law principle “in light of

reason and experience,” as Federal Rule of Evidence 501

requires.10 See Fed. R. Evid. 501.

Given the various forms and tremendous volume of

communications among different groupings of personnel

in modern organizations, however, any underlying relevant

facts withheld from a dual-purpose communication will

generally appear in other unprotected communications

10. The Ninth Circuit’s opinion in In re Grand Jury did

not reject this reasoning, as it affirmatively cited Rowe for

the proposition that the attorney-client privilege extends to

communications made “for the purpose of facilitating the rendition

of professional legal services.” See In re Grand Jury, 23 F.4th

at 1092 (citing Rowe, 96 F.3d at 1296). Thus, In re Grand Jury

cannot be read to discount the principle that a purpose of factual

background provided to an attorney may be to facilitate the

rendition of legal advice and, therefore, should be protected.

27

or documents or be obtainable through other means of

discovery such as interrogatories or depositions. See

24 Charles Alan Wright et al., Federal Practice and

Procedure § 5484 (1st ed. Apr. 2022 update) (observing

that non-privileged information can still be discovered

through testimony or an interrogatory).

Finally, as the Petitioner notes, when legal and

nonlegal portions of a communication are severable,

redaction of the legal communications appropriately

protects privileged material while allowing the production

of non-privileged material. See Pet’r’s Br. 22–23. For these

reasons, the information protected by the attorney-client

privilege as a dual-purpose communication under the

significant legal purpose test is that which is inextricably

intertwined with requests for or the provision of legal

advice. The significant legal purpose test will thus not

improperly expand the privilege to protect from disclosure

relevant, nonlegal information that requesting parties

have a right to discover.

CONCLUSION

Accordingly, amicus curiae respectfully requests

that this Court overturn the ruling of the Ninth Circuit

adopting the single primary purpose test for dual-purpose

communications and adopt the D.C. Circuit’s significant

legal purpose test.

28

Dated: November 23, 2022

Respectfully submitted,

Jonathan M. Redgrave

Counsel of Record

Gareth T. Evans

Redgrave LLP

4800 Westfields Boulevard, Suite 250

Chantilly, Virginia 20151

(703) 592-1155

jredgrave@redgravellp.com

Counsel for Amicus Curiae

Lawyers for Civil Justice