Supreme Court Fumbles Attempt to Define Privilege Standard: Part III

March 29, 2023

The last two Privilege Points (Part I and Part II) addressed the Supreme Court’s abandoned attempt to address the abstract “primary purpose” versus “one significant purpose” privilege standard in the absence of specific facts about particular documents. Interestingly, the Ninth Circuit’s In Grand Jury decision mentioned what it called the “because of” test in the work product arena — before noting the inherent differences between the attorney-client privilege and work product protection. 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). We will see if the Supreme Court takes the hint.

For decades, some circuits (most notably, the Fifth Circuit) have limited work product protection to documents that will be used to “aid or assist” in litigation. Other circuits have endorsed a much broader “because of” standard, which extends work product protection beyond that narrow range — as long as the documents were created “because of” litigation or anticipated litigation, and would not exist in the same form but for that litigation. In some situations, courts from different parts of the country have simultaneously disagreed. For instance, the court in Hempel v. Cydan Development, Inc., Case No. PX-18-3040, 2020 U.S. Dist. LEXIS 153208, at *15 (D. Md. Aug. 24, 2020), rejected work product protection because a document was “not written with any purpose of actually assisting Plaintiffs or their counsel.” Just three days later, the court in Profit Point Tax Technologies, Inc. v. DPAD Group, LLP, No. 20-mc-0009, 2020 U.S. Dist. LEXIS 156639, at *182-83 (W.D. Wis. Aug. 27, 2020), protected as work product documents “prepared because of disputes that would otherwise have been litigated.” It is easy to envision documents that fail the “aid or assist” standard but satisfy the “because of” standard. For example, a company worried about having to raise money to pay for a possible loss in pending litigation might create documents focusing on where it will find the money — which presumably would satisfy the “because of” standard, but not the “aid or assist” standard.

This dichotomy differs from — but parallels — the privilege standard debate that will continue after Grand Jury. With any luck, the Supreme Court will address this inherently federal issue while on the lookout for an extensively litigated document-intensive case to use in rejecting the frighteningly narrow “but for” privilege standard.