Supreme Court Fumbles Attempt to Define Privilege Standard: Part II

March 22, 2023

Last week’s Privilege Point described the Supreme Court’s failure to decide between a “primary purpose” and a “one significant purpose” privilege standard. Everyone wonders why the Supreme Court dropped the case. The best explanation may be that the court realized that it should have waited for an internal corporate investigation case like KBRIn re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014).

In re Grand Jury, 23 F.4th 1088 (9th Cir.), cert. granted, 143 S. Ct. 80 (2022), cert. dismissed as improvidently granted, 143 S. Ct. 543 (2023) (per curiam), involved a government-initiated criminal tax investigation. Since the District Court’s file was under seal, we don’t know much about the context or the substance of the withheld documents — unlike many civil investigation cases. And of course our common law advances most efficiently and fairly when based on incremental rulings in specific situations (even about specific withheld documents) — rather than in some one-size-fits-all legal doctrine pronouncement. So the Supreme Court might have done better by waiting for a civil investigation case with a lengthy document-specific district court opinion to sink its teeth into. It is unfortunate that the Supreme Court did not at least reject the extreme “but for” standard, under which the privilege presumably would not protect most if any documents created during an investigation mandated by government regulations or even some internal corporate policy.

The good news is that the government did not argue for a draconian “but for” standard during the Grand Jury oral argument. In fact, the government lawyer said “we completely agree with the result” in KBR (Transcript of Jan. 9, 2023, Oral Argument at 76, In re Grand Jury, 143 S. Ct. 543 (2023)). Next week’s Privilege Point describes the opportunity for the Supreme Court to address a similar dichotomy of approaches in the work product arena.