Amicus Curiae Brief — In Re Grand Jury

No. 21-1397

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------IN RE GRAND JURY

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------AMICUS CURIAE BRIEF OF FEDERATION

OF DEFENSE & CORPORATE COUNSEL

IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------MARY-CHRISTINE SUNGAILA

Counsel of Record

BUCHALTER APC

18400 Von Karman Avenue

Suite 800

Irvine, CA 92612

(949) 760-1121

msungaila@buchalter.com

Attorneys for Amicus Curiae

Federation of Defense & Corporate Counsel

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

CORPORATE DISCLOSURE STATEMENT

Under rule 29.6 of the Rules of this Court, amicus

curiae Federation of Defense & Corporate Counsel

states the following:

Federation of Defense & Corporate Counsel is a

not-for-profit corporation with no shareholders.

ii

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT ......

i

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

ii

TABLE OF AUTHORITIES .................................

iii

INTEREST OF THE AMICUS CURIAE .............

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

4

I.

This Court should adopt a privilege test

that encompasses attorney communications for which legal advice was not necessarily the primary purpose, but one of the

significant purposes ...................................

4

A. A “one significant purpose” test aligns

with the Restatement and the current

approach of many federal and state

courts ...................................................

4

B. Such a test also reflects the modern

role of in-house counsel and online

communication ....................................

7

CONCLUSION..................................................... 11

iii

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Edwards v. Scripps Media, Inc.,

2019 WL 2448654, Case No. 18-1073

(E.D. Mich. June 10, 2019) ........................................5

FTC v. Boehringer Ingelheim Pharm., Inc.,

892 F.3d 1264 (D.C. Cir. 2018) ..................................5

In re Kellogg Brown & Root, Inc.,

756 F.3d 754 (D.C. Cir. 2014) ............................ 3, 4, 5

Pitkin v. Corizon Health, Inc.,

2017 WL 6496565, Case No. 3:16-cv-02235-AA

(D. Or. Dec. 18, 2017) .................................................5

Swidler & Berlin v. U.S.,

524 U.S. 399 (1998) ...................................................6

United States ex rel. Bibby v.

Wells Fargo Bank, N.A.,

165 F.Supp.3d 1319 (N.D. Ga. 2015) .........................5

United States v. Jicarilla Apache Nation,

564 U.S. 162 (2011) ............................................... 2, 6

Upjohn Co. v. United States,

449 U.S. 383 (1981) ............................................... 2, 3

In re Zetia (Ezetimibe) Antitrust Litig.,

No. 2:18-MD-2836, 2019 WL 6122012

(E.D. Va. July 16, 2019) .............................................5

iv

TABLE OF AUTHORITIES – Continued

Page

STATE CASES

Am. Zurich Ins. Co. v. Mont. Thirteenth

Jud. Dist. Ct.,

280 P.3d 240 (Mont. 2012) ........................................6

In re Fairway Methanol LLC,

515 S.W.3d 480 (Tex. Ct. App. 2017) .........................6

Mitchell v. Superior Court,

37 Cal.3d 591 (1984) .................................................2

Morgan v. Butler,

85 N.E. 3d 1188, 2017 Ohio 816

(Ohio Ct. App. 2017) ..................................................6

OTHER AUTHORITIES

Harmar Brereton, A. Kenneth Pye, James R.

Withrow, Jr., The Attorney-Corporate Client

Privilege, 24 Record of the Bar Association of

New York 230 (1969) .................................................2

Deborah A. DeMott, The Discrete Roles of General Counsel, 74 Fordham L. Rev. 955 (2005) ...........4

Philip J. Favro, Inviting Scrutiny: How Technologies Are Eroding the Attorney-Client Privilege, 20 Rich. J.L. & Tech. 2 (2013), available

at http://jolt.richmond.edu/v20i1/article2.pdf ..........9

v

TABLE OF AUTHORITIES – Continued

Page

Victor Fredstrand and Yacoub Hanna, Remote

Work – Redefining the workplace through the

lense of change management. A case study

on the demands that arise when working remotely in the perspective of employees and

managers 1 (2021), https://www.divaportal.org/

smash/get/diva2:1583381/FULLTEXT01.pdf ....... 8, 9

Number of sent and received emails per day

worldwide from 2017 to 2025 (in billions) (February 2021), https://www.statista.com/statistics/

456500/daily-number-of-emailsworldwide/ (last

visited November 17, 2022) ....................................10

Restatement (Third) of the Law Governing

Lawyers § 72, Reporter’s Note, cmt. c. (2000) ..........4

Amanda Robert, Working remotely is now a top

priority, says new ABA report highlighting

lasting shifts in practice of law (September 28,

2022), https://www.abajournal.com/web/article/

new-aba-report-highlights-lasting-shifts-inpractice-of-law-and-workplace-culture#:~:text=

According%20to%20the%20ABA’s%20report

,

to%20three%20days%20a%20week..........................9

Tom Spahn, Corporate Attorney-Client Privilege

in the Digital Age: War on Two Fronts, 16 Stan.

J.L. Bus. & Fin. 288 (2011) ........................... 6, 7, 8, 9

Amber Stevens, An Analysis of the Troubling

Issues Surrounding In-House Counsel and the

Attorney-Client Privilege, 23 Hamline L. Rev.

289 (1999-2000) .........................................................3

vi

TABLE OF AUTHORITIES – Continued

Page

Mark C. Van Deusen, The Attorney-Client Privilege for In-House Counsel When Negotiating

Contracts: A Response to Georgia-Pacific Corp.

v. GAF Roofing Manufacturing Corp., 39 Wm.

& Mary L. Rev. 1397 (1998) ......................................3

1

INTEREST OF THE AMICUS CURIAE1

The Federation of Defense & Corporate Counsel

(FDCC) is a not-for-profit corporation with national

and international membership of 1,550 defense and

corporate counsel working in private practice, as inhouse counsel, and as insurance industry professionals. A significant number of FDCC members practice

in the trial and appellate courts of the United States

both at the federal and state level. Since 1936, its members have established a strong legacy of representing

the interests of civil defendants, including publicly and

privately owned businesses, public entities, and individual defendants. The FDCC seeks to assist courts in

addressing issues of importance to its membership

that concern the fair and predictable administration of

justice.

As in-house and outside counsel in civil litigation,

FDCC members have a deep interest in the scope and

application of the attorney-client privilege and the

establishment of a clear and uniform test for

No counsel for a party authored this brief in whole or in

part. Neither a party, nor its counsel, nor any other entity other

than amicus curiae and counsel has made a monetary contribution intended to fund the preparation or submission of this brief.

Petitioner has filed a blanket consent to the filing of amicus briefs.

Respondent has separately consented to the filing of this brief as

well.

1

2

determining when communications with dual purposes of both legal and business advice are privileged.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

The attorney-client privilege is the “oldest of the

privileges for confidential communications known to

the common law.” Upjohn Co. v. United States, 449 U.S.

383, 389 (1981); see also Mitchell v. Superior Court, 37

Cal.3d 591, 599-600 (1984) (footnote omitted) (“The attorney-client privilege has been a hallmark of AngloAmerican jurisprudence for [more than] 400 years,”

which “our judicial system has carefully safeguarded

with only a few specific exceptions.”); Harmar Brereton, A. Kenneth Pye, James R. Withrow, Jr., The Attorney-Corporate Client Privilege, 24 Record of the Bar

Association of New York 230-31 (1969) (describing the

evolution of the attorney-client privilege from the Sixteenth Century forward). The privilege, as this Court

has acknowledged, exists “to encourage clients to make

full disclosure to their attorneys”; this not only promotes trust between an attorney and her client, but

also reflects a recognition 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, supra, 449 U.S. at 389.

“[F]or the attorney-client privilege to be effective,

it must be predictable.” United States v. Jicarilla

Apache Nation, 564 U.S. 162, 183 (2011). “An uncertain

privilege, or one which purports to be certain but

3

results in widely varying applications by the courts, is

little better than no privilege at all.” Upjohn, supra,

449 U.S. at 393. The single primary purpose test

adopted by the Ninth Circuit in this case – unlike the

“one significant purpose” test in In re Kellogg Brown &

Root, Inc., 756 F.3d 754 (D.C. Cir. 2014) (Kavanaugh,

J.) that has also been adopted by many district courts

and state appellate courts – adds heightened uncertainty to privilege protection, since it depends on a

court’s interpretation of a client’s primary motivation

in seeking the lawyer’s advice in the first place. See

Amber Stevens, An Analysis of the Troubling Issues

Surrounding In-House Counsel and the Attorney-Client Privilege, 23 Hamline L. Rev. 289, 316 (1999-2000)

(observing that “much of the uncertainty regarding

whether the privilege will apply in the corporate context relates to the diverse application of the predominant purpose test”).

The need for certainty is heightened further by the

new realities of corporate life, in which legal advice is

often sought for combined legal and business reasons

by digital means, including email and Slack chains,

leading to even more dual-purpose legal communications. See generally Mark C. Van Deusen, The AttorneyClient Privilege for In-House Counsel When Negotiating Contracts: A Response to Georgia-Pacific Corp. v.

GAF Roofing Manufacturing Corp., 39 Wm. & Mary L.

Rev. 1397, 1397-98 (1998) (“[E]xecutives increasingly are

seeking legal advice from ‘corporate’ or ‘in-house’ attorneys. . . . The work of these attorneys has changed significantly. . . . They routinely perform more substantive

4

work, including litigation. . . . In-house counsel often

perform dual roles, acting as both executives and attorneys. Additionally, attorneys without formal business duties often intermingle business advice with

legal advice.”); Deborah A. DeMott, The Discrete Roles

of General Counsel, 74 Fordham L. Rev. 955, 957-58

(2005). In this environment, the Kellogg test strikes

the right balance between what is privileged and what

is not.

---------------------------------♦---------------------------------

ARGUMENT

I.

This Court should adopt a privilege test that

encompasses attorney communications for

which legal advice was not necessarily the

primary purpose, but one of the significant

purposes.

A. A “one significant purpose” test aligns

with the Restatement and the current

approach of many federal and state

courts.

According to the Restatement Third of the Law

Governing Lawyers, “[i]n general, American decisions

agree that the privilege applies if one of the significant

purposes of a client communicating with a lawyer is

that of obtaining legal assistance.” Restatement

(Third) of the Law Governing Lawyers § 72, Reporter’s

Note, cmt. c. at 554 (2000).

This is the approach endorsed by the D.C. Circuit

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

5

754. In that case, the court rejected the “primary purpose” test as inappropriate because it “would eliminate

the attorney-client privilege for numerous communications that are made for both legal and business purposes and that heretofore have been covered by the

attorney-client privilege.” Id. at 759. The more appropriate approach to determining whether the attorneyclient privilege applies, the court held, is to analyze

whether “obtaining or providing legal advice was one

of the significant purposes of the [communication.]”

Id. at 758; see also FTC v. Boehringer Ingelheim Pharm.,

Inc., 892 F.3d 1264, 1267-68 (D.C. Cir. 2018) (holding

that whether legal advice “was one of the significant

purposes of the attorney-client communication . . .

helps to reduce uncertainty regarding the attorneyclient privilege” (emphasis in original)).

This is the approach endorsed by many district

courts, as Petitioner’s Brief on the merits notes. (Pet.

Brief at 21-22); see also United States ex rel. Bibby v.

Wells Fargo Bank, N.A., 165 F.Supp.3d 1319, 1329

(N.D. Ga. 2015) (“If one of the primary purposes of the

communication is to seek legal advice, then the privilege attaches.”); Edwards v. Scripps Media, Inc., 2019

WL 2448654, at *1-2, Case No. 18-10735 (E.D. Mich.

June 10, 2019) (adopting “significant purpose” analysis

in Kellogg); In re Zetia (Ezetimibe) Antitrust Litig., No.

2:18-MD-2836, 2019 WL 6122012, at *4 (E.D. Va. July

16, 2019) (finding that communications were privileged even though they addressed business as well as

legal issues); Pitkin v. Corizon Health, Inc., 2017 WL

6

6496565, at *3-4, Case No. 3:16-cv-02235-AA (D. Or.

Dec. 18, 2017).

Several state courts have endorsed this approach

too. See Morgan v. Butler, 85 N.E. 3d 1188, 1195-96,

2017 Ohio 816 (Ohio Ct. App. 2017) (holding that obtaining legal advice need not be the only purpose for a

communication; so long as “a communication between

a lawyer and client would facilitate the rendition of legal services or advice, the communication is privileged.”); In re Fairway Methanol LLC, 515 S.W.3d 480,

489 (Tex. Ct. App. 2017) (holding that Texas attorneyclient privilege law “does not require that the primary

purpose of the communication be to facilitate the rendition of legal services; it only requires that the communication be made to facilitate the rendition of legal

services.” (emphasis in original)); Am. Zurich Ins. Co.

v. Mont. Thirteenth Jud. Dist. Ct., 280 P.3d 240, 245

(Mont. 2012) (attorney-client privilege protects confidential communications “necessary to obtain informed

legal advice”).

In adopting this test, these courts, consistent with

this Court’s precedent, have rejected an after the fact

balancing test that fails to sufficiently define the contours of the privilege, and may give clients pause in

consulting a lawyer because they cannot determine

whether their communications will remain confidential. See generally Swidler & Berlin v. U.S., 524 U.S.

399, 409 (1998); Jicarilla Apache Nation, supra, 564

U.S. at 183. See also Tom Spahn, Corporate AttorneyClient Privilege in the Digital Age: War on Two

Fronts, 16 Stan. J.L. Bus. & Fin. 288, 301-05 (2011)

7

(describing Association of Corporate Counsel and

other corporate counsel group surveys, resolutions, and

proposals by both the Conference of Chief Justices

and the U.S. Congress voicing concerns about erosion

of the attorney-client privilege and its chilling effect on

corporate compliance programs and executives’ willingness to seek early guidance on complex regulatory

issues).

B. Such a test also reflects the modern

role of in-house counsel and online

communication.

A “one significant purpose” test takes into account

the convergence of two trends: the expanding role of

in-house counsel and the ubiquitous use of email and

online communications.

In the modern era, lawyers “offer mixed legal and

non-legal advice at many points in the decisionmaking process, especially in highly regulated industries where nearly every decision involves some legal

aspect. Lawyers have also become involved much

earlier in the decision-making process, often providing legal insight from the very earliest stages of

forming company policy or decisions.” Tom Spahn,

Corporate Attorney-Client Privilege in the Digital Age:

War on Two Fronts, supra, 16 Stan. J.L. Bus. & Fin. at

293.

At the same time, “technological advances have

fundamentally changed how the world communicates.

E-mail, text messages, electronic document editing,

8

and other digital communication tools have had a

particularly dramatic effect on the pace and efficiency

of business decisions.” Id. at 292. See also Victor

Fredstrand and Yacoub Hanna, Remote Work – Redefining the workplace through the lense of change management. A case study on the demands that arise when

working remotely in the perspective of employees and

managers 1, 6 (2021), https://www.divaportal.org/smash/

get/diva2:1583381/FULLTEXT01.pdf. (“In the last decade there has been an exponential and ongoing digital

transformation that has changed our society and thus

the way people interact and work on a daily basis,” including, for example, the replacement of traditional inperson seminars and meetings with “webinars using

video streaming applications, e.g., Zoom, Google Meet

and Microsoft Teams.”) As one author has observed:

“[D]igital age innovations have facilitated communication between organizations and their lawyers. While

messaging was previously limited to traditional options such as telephone calls, paper letters, and facsimiles, lawyers and clients now enjoy an abundance of

media through which they can instantaneously exchange information. Besides e-mail, companies and

counsel now trade messages through short message

service, instant messages, social networking sites, and

voice over Internet protocol (VoIP). The methods for

doing so have also expanded, with small form factor

(SFF) devices such as smartphones and tablet computers replacing desktop computers and other antiquated

tools. And with the proliferation of cloud computing,

both client and counsel essentially have an unlimited

9

virtual warehouse in which to store their digital discussions.” Philip J. Favro, Inviting Scrutiny: How Technologies Are Eroding the Attorney-Client Privilege, 20

Rich. J.L. & Tech. 2, 2-3 (2013), available at http://

jolt.richmond.edu/v20i1/article2.pdf.

“The free flow of communications across corporate

departments has greatly enhanced efficiency as legal,

business, and scientific members of the company collaborate continuously,” “greatly enhanc[ing] the value

of in-house counsel.” Corporate Attorney-Client Privilege in the Digital Age: War on Two Fronts, supra, 16

Stan. J.L. Bus. & Fin. at 293.

These trends are likely to continue, given the continued prevalence of remote and hybrid work environments; “[r]emote work has existed long before the

Covid pandemic, but the occurrence of the pandemic

has forced the shift to remote working and thereby accelerated the digital transformation of today’s workplaces.” Victor Fredstrand and Yacoub Hanna, Remote

Work, supra, at 2 (citations omitted). For example,

“[a]lthough video conferencing tools have existed for a

long time they have evolved and increased rapidly in

use due to the Covid pandemic which ha[s] forced large

parts of the workforce to communicate and interact

digitally.” Id. at 6 (citations omitted). Moreover, according to a September 2022 ABA report, 87% of lawyers

surveyed said that their workplaces continue to allow

them to work remotely, either in a hybrid or fully remote format. Amanda Robert, Working remotely is

now a top priority, says new ABA report highlighting

lasting shifts in practice of law (September 28, 2022),

10

https://www.abajournal.com/web/article/new-aba-reporthighlights-lasting-shifts-in-practice-of-law-and-workplaceculture#:~:text=According%20to%20the%20ABA’s

%20report,to%20three%20days%20a%20week. At the

same time, the number of emails, both sent and received, continues to grow worldwide: from 269 billion

in 2017 to 333 billion each day in 2022. See Number of

sent and received emails per day worldwide from 2017

to 2025 (in billions) (February 2021), https://www.

statista.com/statistics/456500/daily-number-of-emailsworldwide/ (last visited November 17, 2022).

The convergence of an increased use of technology

in the workplace and the expanded role of inhouse

counsel makes it much easier for legal communications to be intertwined with business communications.

The “one significant purpose” test reflects this new reality.

---------------------------------♦---------------------------------

11

CONCLUSION

For these reasons, and for the reasons stated in

the Petitioner’s briefing on the merits, this Court

should adopt the “one significant purpose” test for assessing the scope of the attorney-client privilege.

Dated: November 23, 2022

Respectfully submitted,

MARY-CHRISTINE SUNGAILA

Counsel of Record

BUCHALTER APC

18400 Von Karman, Suite 800

Irvine, CA 92612

(949) 760-1121

msungaila@buchalter.com

Attorneys for Amicus Curiae

Federation of Defense &

Corporate Counsel