Supreme Court DIGs In Re Grand Jury – Privilege

Earlier this month, when lawyers for an unnamed law firm argued
at the Supreme Court for a more expansive approachto the attorney-client
privilege, Justice Elena Kagan called it “a big ask.”
Later, during oral argument, she quipped of the current approach,
“if it ain’t broke, don’t fix it.” This sentiment
may have won out. On Tuesday, the Court dismissed the case, In Re Grand Jury,
as improvidently granted.

This relatively rare maneuver, often abbreviated as a
“DIG” in appellate lingo, amounts to a retraction of
certiorari, cementing in place the lower court’s ruling as if
certiorari had been denied from the outset. As is the case here,
the Supreme Court rarely explains its reasons for a DIG.

Court watchers speculate that the Justices will DIG a case when
the facts present a less optimal vehicle for resolution of the
legal question than originally appreciated. The petitioner in
In Re Grand Jury sought privilege protections for
dual-purpose communications (those serving both legal and
business purposes) so long as the legal purposes were
“significant.” But the case may have involved too
indefinite a set of facts for the Justices to comfortably draw a
conclusion of law. Because the appeal stems from the proceedings of
a grand jury, many of the facts-from the documents at issue to the
identity of the petitioner law firm-remain confidential.

Of course, nobody outside of the Court knows the true reason for
the DIG. Perhaps the Justices will again grant certiorari on the
question of dual-purpose communications when a case offers a more
developed factual foothold for the law to rest on.

For now, the Ninth Circuit, where the case originated, and the
majority of federal circuits to consider the question, will
continue to employ a “primary purpose” test in assessing
whether attorney-client privilege attaches to dual-purpose
communications. This test instructs courts to locate the primary or
predominate purpose of a communication between lawyer and client.
When that primary purpose is legal in nature, the privilege
prevails. When business or other concerns predominate, the
privilege is unavailable.

Only the DC Circuit, in an opinion authored by then-Judge
Kavanaugh, In re Kellogg Brown & Root, Inc., 756 F.3d
754 (2014), varies from the consensus. Kellogg holds that
privilege exists where “solicitation of legal advice was
one of the material purposes of the communication.”
Id. at 760 (emphasis added). But the scope of
Kellogg-whether it should be the default rule or simply a
tiebreaker when a communication’s single, primary purpose is
elusive-was the subject of debate in In Re Grand Jury.
With the Court’s dismissal of the case, resolution of that
debate awaits another day.

* Austin Reagan contributed to this blog. Mr. Reagan is a
graduate of Yale Law School and is employed at Arnold &
Porter’s Washington, DC office. Mr. Reagan is not admitted to
the practice of law in Washington, DC.

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