D.C. Circuit Court of Appeals Judge and Supreme Court nominee Brett Kavanaugh proves a staunch defender of attorney-client privilege for companies.  In FTC v. Boehringer Ingelheim Pharms., Inc., one of his final opinions before stepping away from casework because of his Supreme Court nomination, Judge Kavanaugh solidified his stance taken in the 2014 case In re Kellogg Brown & Root, Inc.

In re Kellogg Brown & Root, Inc.

In Kellogg, the District Court denied privilege to communications made in the course of an internal investigation because the company did not show that “the communication would not have been made ‘but for’ the fact that legal advice was sought.”  The D.C. Circuit, with Judge Kavanaugh writing the majority opinion, rejected the District Court’s “but-for” standard because it was too restrictive and would remove privilege from all communications that were not solely legal advice.

To determine whether a communication is covered under attorney-client privilege, courts generally use a “primary purpose” test, which asks whether the primary purpose of the communication was to obtain or provide legal advice.  In this 2014 decision, the court articulated a broad view of the test, allowing multiple primary purposes per communication: asking whether “obtaining or providing legal advice [was] a primary purpose of the communication, meaning one of the significant purposes of the communication?”  Judge Kavanaugh explained that determining only one primary purpose when the communication had multiple objectives “can be an inherently impossible task,” for which determining the main motivation “is often not useful or even feasible.”  He further noted that the court was “not correct” to assume one primary purpose or “try to find the one primary purpose in cases where a given communication plainly has multiple purposes.”

FTC v. Boehringer Ingelheim Pharms., Inc.

In Boehringer, a June opinion issued just before his Supreme Court nomination in July, Judge Kavanaugh elaborated on his Kellogg ruling.  He explained that his goal was to “reduce uncertainty” regarding attorney-client privilege when a communication has a legal purpose and a business purpose.  Citing the seminal decision of Upjohn from the Supreme Court, he reiterated that “an uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.”  Specifically, Judge Kavanaugh clarified that communications between the company’s general counsel and employees or executives are subject to attorney-client privilege when they are requested by the general counsel to assist in her legal advice, even when the communications consist primarily of factual information.  These “communications are protected by the attorney-client privilege because one of the significant purposes of the communications [is] ‘obtaining or providing legal advice’.”

Judge Kavanaugh conceded that this privilege only covers communications and does not extend to the underlying facts. However, the communication of the facts is covered when the communications are to assist in the formulation of legal advice.

Concurrence Highlights Broad Approach

Judge Pillard’s concurrence in Boehringer accentuates the strong phrasing in Judge Kavanaugh’s decision.  Judge Pillard complimented, possibly with some irony, the “spare elegance” of the opinion.  She emphasized that the Boehringer decision did not expand the “the attorney-client privilege recognized in our prior precedents.”  She explained that the established standards of review must be followed and communications’ “significant legal purpose” has to be supported with facts, not “conclusory assertions.”  Boehringer supported its privilege claims with detailed affidavits and offered to amend its privilege logs with further information.

Conclusion

On its own language and as seen through the lens of the concurrence, Boehringer demonstrates that Judge Kavanaugh is likely to continue supporting broad application of the privilege for companies if he is confirmed to the Supreme Court.