Court Adopts A Favorable Privilege Standard But Unfavorable Work Product Standard: Part I

September 4, 2019

Most courts apply a "primary " or "predominant" purpose standard when assessing privilege protection for communications serving both business and legal purposes. While on the D.C. Circuit, Judge Kavanaugh articulated a much more favorable standard – protecting as privileged communications if "obtaining or providing legal advice was one of the significant purposes" of the communication. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 759-60 (D.C. Cir. 2014) (commonly called the KBR case).

Only a handful of courts have moved in that direction. In Smith-Brown v. Ulta Beauty, Inc., No. 18 C 610, 2019 U.S. Dist. LEXIS 10821, at *8 (N.D. Ill. June 27, 2019), the court initially explained that "[t]he Second, Fifth, Sixth, and D.C. Circuits all use the predominant purpose test." But the court then quoted and applied the D.C. Circuit KBR decision's "one of the significant purposes" standard, which those other circuits have not adopted. Id. at *8-10.

KBR's "one of the significant purposes" standard is so much more favorable to corporations than the "primary" or "predominant" purpose standard that corporations' lawyers should welcome any court joining the KBR ranks. Next week's Privilege Point will discuss the recent Smith-Brown decision's work product standard – which takes the narrowest view of that separate evidentiary protection.

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