In re Grand Jury

In re Grand Jury

Ninth Circuit Offers Guidance on Privilege Test for Dual-Purpose Communications

Recent Case: In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021)

The Ninth Circuit Court of Appeals recently held that dual-purpose communications, or communications made with more than one purpose, must satisfy the “primary purpose” test in order for privilege properly to attach. Yet in 2014, the D.C. Circuit adopted a different test for dual purpose communications, asking whether “a”—not “the”—primary purpose of the communication is to give or receive legal advice. The Ninth Circuit did not explicitly reject the logic of the D.C. Circuit, and instead declined the opportunity to draw the precise contours of the privilege standard as applied to dual purpose communications. Looking forward, it is likely that other circuits may grapple with the proper inquiry for privilege and the logic of the D.C. Circuit’s standard.


To what degree should attorney-client privilege protect dual-purpose communications? As businesses grow in size and complexity, their attorneys often serve as both lawyers and businesspersons. This phenomenon has given rise to dual-purpose communications, or communications with “more than one purpose.”33. In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021) (referring to dual-purpose tax documents in United States v. Sanmina Corp., 968 F.3d 1107, 1118 (9th Cir. 2020)). These dual-purpose communications have proved slippery for courts to fit into existing privilege jurisprudence.44. See, e.g., Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, Law of Lawyering 2022 Supplement § 10.07.8 (Wolters Kluwer 4th ed. 2021–22) (“One common problem that arises, most often when privilege claims are made by in-house counsel, is whether particular communications were made in connection with business rather than legal advice.”). The Ninth Circuit recently confronted an intra-circuit split on the proper standard for assessing privilege claims for dual-purpose communications. The court squarely rejected a broad test in favor of a narrower inquiry.55. See In re Grand Jury, 23 F.4th at 1094 (“[W]e reject Appellants’ invitation to extend the ‘because of’ test to the attorney-client privilege context, and hold that the ‘primary purpose’ test applies to dual-purpose communications.”). Some district courts hewed to the more focused “primary purpose” test, which looked to the primary reason of a communication.66. See id. at 1091 (“Under the ‘primary purpose’ test, courts look at whether the primary purpose of the document is to give or receive legal advice, as opposed to business or tax advice.”) (citing In re County of Erie, 473 F.3d 413, 420 (2d Cir. 2007)). Other district courts assessed claims of privilege under the broader “because of” standard, which inquired into the causal connection animating the creation of a document.77. Id. at 1092. The “because of” test, which applies to the work product doctrine, “‘does not consider whether litigation was a primary or secondary motive behind the creation of a document.’ It instead ‘considers the totality of the circumstances and affords protection when it can fairly be said that the document was created because of anticipated litigation.’”88. Id. (citation omitted). Thus, the “because of” inquiry is much broader than the primary purpose test.99. Id.

The Ninth Circuit determined that the “primary purpose” test governs, underscoring the distinction between work product and attorney-client privilege.1010. Id. at 1092 (“We hold that the primary purpose test applies to attorney-client privilege claims for dual-purpose communications.”). In arriving at its conclusion, the court distinguished work product and attorney-client privilege in part by exploring the goals for which each privilege is tailored. It noted that “the work-product doctrine upholds the fairness of the adversarial process by allowing litigators to creatively develop legal theories and strategies—without their adversaries invoking the discovery process to pry into the litigators’ minds and free-ride off them.” Id. at 1093 (citing Allen v. Chi. Transit Auth., 198 F.R.D. 495, 500 (N.D. Ill. 2001)). On the other hand, attorney-client privilege is not meant to address the adversarial process but rather “encourages ‘full and frank communication between attorneys and their clients.’” Id. at 1093 (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). However, although the court rejected the “because of” test for attorney-client privilege, it punted on the precise standard1111. The court declined the opportunity to adopt the “a primary standard” test for attorney-client privilege with respect to dual-purpose communications. As the court explained by reference to In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014), the “a primary purpose” test asks whether “obtaining or providing legal advice [was] a primary purpose of the communication, meaning one of the significant purposes of the communication?” Id. at 1094. The court therefore left “[o]pen [w]hether the ‘[a] [p]rimary [p]urpose [t]est [s]hould [a]pply.” Id. On the other hand, “the primary purpose” inquiry asks the court to identify the “‘predominant’ purpose” of the communication. Id. to assess dual-purpose communications—leaving businesses in the dark as to which documents may properly be withheld under a privilege assertion.


Attorney-client privilege protects certain communications between a client and her lawyer—specifically, communications in which the client seeks legal advice—from compelled disclosure in the course of litigation.1212. See, e.g., United States v. Samnina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020) (“The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.”) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)); Hazard, Hodes, & Jarvis, supra note 2, § 10.07.8 (“In order for attorney-client privilege to apply, the communication between attorney and client (or their respective representatives), must be in aid of the attorney’s provision of legal advice to the client—it must be about a legal matter, in other words.”). In federal courts, Rule 501 of the Federal Rules of Evidence1313. Rule 501 requires that common law determines assertions of privilege unless the U.S. Constitution, a federal statute, or rules promulgated by the Supreme Court dictate otherwise. See Fed. R. Evid. 501. However, “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Id. cognizes the privilege that was developed under federal common law.1414. Ellen S. Pogdor & Jerold H. Israel, White Collar Crime in a Nutshell 387 (4th ed. 2009). In the Ninth Circuit, the attorney-client privilege is articulated by a functionally equivalent “eight-part test: (1) Where legal advice . . . is sought (2) from a professional legal advisor . . . , (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are . . . protected (7) from disclosure . . . , (8) unless the protection be waived.” Sanmina Corp., 968 F.3d at 1116 (citing United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010)). In order to invoke the privilege successfully and shield a communication from disclosure, one generally must demonstrate: “(1) a communication, (2) that was made by the client to a lawyer, (3) that was made in confidence, and (4) that was made for the purpose of obtaining professional legal advice (or services relating thereto).”1515. Pogdor & Israel, supra note 12, at 389. Generally, those communications that satisfy all four elements may be withheld from compelled disclosure on the ground that the privilege cloaks the communications in protection.1616. See id. at 389–90 (noting that the privilege “block[s] the disclosure of the protected communications . . .”).

On the other hand, work product privilege protects disclosure of documents prepared by an attorney in “anticipation of litigation.”1717. See id. at 426. Originally articulated in the seminal Supreme Court case Hickman v. Taylor,1818. 329 U.S. 495 (1947). work product privilege trains attorneys’ and the court’s perspective on the attorney’s actions in the face of litigation (or the threat of litigation).1919. See Pogdor & Israel, supra note 12, at 427–29 (establishing Hickman standards and describing Federal Rule 26(b)(3) as having “substantially incorporated” these standards). Today, Rule 26(b)(3) of the Federal Rules of Civil Procedure also sets the standard for work product privilege.2020. See id. at 430 (describing how Rule 26(b)(3) incorporates Hickman and “sets forth a standard as to the showing needed to overcome work product protection”). See also Fed. R. Civ. Proc. 26(b)(3)(A) (“Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative . . . .”).

Attorney-client and work product privilege are distinct privileges justified on distinct grounds and focused on distinct inquiries.2121. See supra note 8 (noting distinct goals toward which attorney-client and work product privilege are respectively tailored). In most instances, these doctrines are straightforward to apply. However, a communication created by an attorney with more than one purpose in mind—a so-called dual-purpose communication—implicates thorny issues. These dual-purpose communications are often made by an attorney “wear[ing] dual hats, serving as both lawyer and a trusted business advisor.”2222. In re Grand Jury, 23 F.4th 1088, 1090 (9th Cir. 2021). Consequently, dual-purpose communications have grown more relevant over the years, in light of the “increasingly complex regulatory landscape”2323. Id. implicating the services of attorneys who may offer both legal and business advice.

The tax context, for instance, is rife with opportunities for privilege issues relating to dual-purpose communications.2424. “[S]ome communications might have more than one purpose, especially ‘in the tax law context, where an attorney’s advice may integrally involve both legal and non-legal analyses.’” Id. at 1091 (citing Sanmina Corp., 968 F.3d 1107, 1118 (9th Cir. 2020)). These issues in the tax context emerge because corporations may consult attorneys for myriad advice, and although there is an attorney-client privilege, there is no “accountant-client” privilege.2525. In contrast, “normal tax return preparation assistance—even coming from lawyers—is generally not privileged, and courts should be careful to not accidentially create an accountant’s privilege where none is supposed to exist.” Id. at 1095 n.5. Thus, courts must ensure that documents withheld from disclosure on ground of privilege meet the requirements for attorney-client privilege. As the In re Grand Jury court noted, “attorney-client privilege might apply to legal advice about what to claim on a tax return, even if it does not apply to the numbers themselves.”2626. Id. at 1092 n.2. However, privilege protects only certain communications; it will not apply to run-of-the-mill tax information relayed from client to attorney or memorialized by the attorney as part of standard tax practice.2727. Id. at 1091 (“Generally, communications related to an attorney’s preparation of tax returns are not covered by attorney-client privilege. So, for example, ‘a client may communicate the figures from his W-2 form to an attorney while litigation is in progress, but this information certainly is not privileged.’” (quoting United States v. Abrahams, 905 F.2d 1276, 1283–84 (9th Cir. 1990), rev’d on other grounds by United States v. Jose, 131 F.3d 1325 (9th Cir. 1997)) (citing Olender v. United States, 210 F.2d 795, 806 (9th Cir. 1954)). In the context of standard tax information, there would be no valid claim of privilege as justification for withholding the communications.2828. Id. Courts have not articulated a standard for assessing privilege claims of dual-purpose communications.2929. See id. at 1090 (“Our court, however, has yet to articulate a consistent standard for determining when the attorney-client privilege applies to dual-purpose communications that implicate both legal and business concerns.”).

Facts Underlying the Recent Ninth Circuit Decision

In In re Grand Jury, a California federal grand jury sought information relating to the owner of a company, who was the target of a criminal investigation.3030. See id. at 1090–91 (describing background facts giving rise to privilege assertion). Seeking specific communications, the grand jury issued subpoenas to the appellants: the individual’s company and law firm. The appellants complied with some of the requests but refused to produce certain requested tax-related documents citing work product and attorney-client privilege.3131. See id. When the district court granted in part the government’s motion to compel production,3232. In granting the government’s motion to compel production, “the district court explained that these documents were either not protected by any privilege or were discoverable under the crime-fraud exception.” Id. at 1090. Discussion of the crime-fraud exception and its bearing on the issues in In re Grand Jury is beyond the scope of this piece. The Ninth Circuit disposed of the assertion of the crime-fraud exception “in a concurrently filed, sealed memorandum disposition.” Id. at 1090 n.1. the appellants continued to assert both privileges and refused to produce the withheld documents. The refusal ultimately landed the appellants in contempt, prompting the appeal to decide the appropriate standard for assessing attorney-client privilege with respect to dual-purpose communications.3333. See id. at 1091 (noting findings of contempt and appellants’ appeal). The court focused on the standard for attorney-client privilege for dual-purpose documents. Work product asks whether the document was created in anticipation of litigation and often relies on the “because of” test explored infra note 41, and it does not protect documents where there has been a showing of “substantial need” by the adversary. Thus, because work product privilege applies to documents created in the face of litigation, work product privilege for dual-purpose communications is uninteresting. Fed. R. Civ. Proc. 26(b)(3). The Ninth Circuit granted the motion.3434. See id. (granting appeal under 28 U.S.C. § 1291).

A year earlier, the Ninth Circuit declined an opportunity to decide this question. In United States v. Sanmina Corp. & Subsidiaries,3535. 968 F.3d 1107 (9th Cir. 2020). the court heard a dispute concerning privilege claims with respect to dual-purpose tax communications.3636. See id. at 1118–19, 1118 n.5 (describing the communications as “dual purpose” and weighing possible proper standards). The Sanmina court chronicled the intra-circuit split on the question of the proper test to apply,3737. See id. at 1118 n.5 (illustrating the Ninth Circuit intra-circuit split by pointing to four district courts which applied the “primary purpose” test and two other courts which applied the “because of” test in an attorney-client privilege claim). but it ultimately declined to resolve the split given that the facts of the case did not demand a clear standard.3838. See id. at 1118–19 (“Notwithstanding this intra-circuit split, however, we need not decide the issue on the facts of this case.”). However, the open question once again materialized before the court on appeal in In re Grand Jury.

On appeal in In re Grand Jury, the government argued in favor of the “primary purpose” test to narrow the privilege rule, which would promote greater opportunities for compelled disclosure. As the Ninth Circuit explained: “Under the ‘primary purpose’ test, courts look at whether the primary purpose of the communication is to give or receive legal advice, as opposed to business or tax advice. . . . The natural implication of this inquiry is that a dual-purpose communication can only have a single ‘primary’ purpose.”3939. In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021). In fact, the government sought to narrow substantially the protection offered by decrees of privilege, “suggest[ing] that dual-purpose communications in the tax advice context can never be privileged.”4040. Id. at 1092 n.2 (emphasis added). However, the court disposed of this contention in a footnote as inapposite with Ninth Circuit case law, citing to a case in which the Ninth Circuit neither resoundingly accepted the privilege claim of a dual-purpose tax advice communication nor rejected the possibility outright that privilege may apply under certain circumstances.4141. See id. (determining that relevant case law does not support the government’s contention that dual-purpose tax-related documents are never privileged) (citing United States v. Abrahams, 905 F.2d 1276, 1284 (9th Cir. 1990), rev’d on other grounds by United States v. Jose, 131 F.3d 1325 (9th Cir. 1997)). But while the court rejected the government’s argument that tax-related dual-purpose communications can never be privileged, the court endorsed the government’s “primary purpose” argument, holding that the primary purpose test governs. 4242. See id. at 1092.

On the other hand, the appellants sought adoption of the broadest possible privilege standard—the “because of” test traditionally applied to work product privilege.4343. See id. at 1093 (setting forth appellants’ argument). The “because of” test proposed by appellants:

does not consider whether litigation was a primary or secondary motive behind the creation of a document. It instead considers the totality of the circumstances and affords protection when it can fairly be said that the document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of that litigation.4444. Id. at 1091–92 (emphasis added) (internal quotation marks omitted).

However, the Ninth Circuit declined to adopt the “because of” test, finding unpersuasive appellants’ arguments to use the work product “because of” test for whether attorney-client privilege applies for dual-purpose communications.4545. See id. at 1093 (“Appellants assert . . . that we should . . . borrow the test from the work-product doctrine when a communication has a dual purpose . . . . But . . . [a]ppellants offer no persuasive reason to abandon the common-law rule [with respect to privilege claims for dual-purpose communications.]”). Specifically, the court proceeded in three steps. First, the court concluded that the dispute was governed by the applicable attorney-client privilege standard for dual-purpose communications—not work product.4646. Id. at 1091 (finding that the attorney-client privilege is the only privilege applicable in this case). Second, the court rejected the “because of” test for attorney-client privilege and held that the primary purpose standard is the proper test.4747. See id. at 1094. Third, the court explored the D.C. Circuit’s Kellogg test but ultimately declined the opportunity to endorse that standard.4848. See id. For a discussion of the D.C. Circuit’s Kellog test, see infra Section I.C. Thus, in rejecting the “because of” test and affirming the lower court’s finding of contempt, the court explained that attorney-client privilege focused on “the purpose of the communication, not its relation to anticipated litigation,”4949. Id. at 1093. thereby underscoring the distinction between work product and attorney-client privilege.

Rationale of the Ninth Circuit’s Decision

The Ninth Circuit correctly homes in on the distinction between attorney-client and work product privilege. The two privileges, although complementary, serve distinct purposes and trace distinct historical developments along separate threads of the common law. The court explains the goal of work product privilege as preservation of “a zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries.”5050. Id. (citing United States v. Adlman, 134 F.3d 1194, 1196 (2d. Cir. 1998)). On the other hand, the sanctity of the relationship between a client and her attorney animates the attorney-client privilege.5151. Id. (stating that the attorney-client privilege is concerned with “providing a sanctuary for candid communication about any legal matter, not just impending litigation.”). In fact, “the attorney-client privilege encourages ‘full and frank communication between attorneys and their clients and thereby promote[s] broader public interests in the observance of law and administration of justice.’”5252. Id. (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).

The Ninth Circuit, however, did not tether its rationale only to the importance of maintaining a clear demarcation between two privileges imported and developed from common law. It also considered the practical realities. In explaining its holding that the work product “because of” standard does not govern attorney-client privilege disputes, the Ninth Circuit considered the incentive structure for attorneys and firms that would inevitably develop in reaction to adoption of a “because of” standard governing attorney-client privilege assertions involving dual-purpose communications. The court explained that the “because of” test, if applied to attorney-client privilege, “would create perverse incentives for companies to add layers of lawyers to every business decision in hopes of insulating themselves from scrutiny in any future litigation,”5353. Id. Privilege standards powerfully influence the manner in which organizations choose to conduct business, and organizations react to incentive structures. For instance, in March 2022, the Department of Justice moved to compel Google, LLC, to disclose certain documents alleged to have been improperly cloaked in attorney-client privilege through the inclusion of attorneys on run-of-the-mill business matters. See generally Plaintiffs’ Motion to Sanction Google and Compel Disclosure of Documents Unjustifiably Claimed by Google as Attorney-Client Privileged, United States v. Google, LLC, No. 1:20-cv-03010 (filed Mar. 21, 2022), []. and it expressed concern that applying the test in the attorney-client privilege context “might harm our adversarial system if parties try to withhold key documents as privileged by claiming that they were created ‘because of’ litigation concerns.”5454. In re Grand Jury, 23 F.4th at 1093.

Finally, the panel considered the governing standard in other circuits for assertions of attorney-client privilege of dual-purpose communications. Of those which have confronted the issue, sister circuits generally have declined to import the “because of” standard into attorney-client privilege inquiries for dual-purpose communications.5555. See id. at 1094 (“[M]ost, if not all, of our sister circuits that have addressed this issue have opted for some version of the ‘primary purpose’ test instead of the ‘because of’ test.”). However, while the Ninth Circuit merely rejected the “because of” standard and left open the exact contours of the primary purpose test, the D.C. Circuit has provided more granular guidance.5656. See generally In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014).

The D.C. Circuit’s Kellogg Test

Nearly a decade ago, the D.C. Circuit set forth its “a primary purpose” standard.5757. See id. at 759–60 (describing “a primary purpose test” and its justification). Confronted with a privilege dispute centered on whether certain documents produced by attorneys in the course of an internal investigation for a defense contractor constituted “legal advice”5858. Id. at 756. or “unprivileged business records,”5959. Id. the district court reviewed the disputed documents in camera6060. In camera review refers to nonpublic “examination of materials.” See, e.g., In Camera Definition, Law Insider, [] (last accessed June 13, 2022). and “determined that the attorney-client privilege protection did not apply because . . . [the defendant] had not shown that ‘the communication would not have been made ‘but for’ the fact that legal advice was sought.’”6161. Kellogg, 756 F.3d at 756. The defendant maintained its privilege claim over the dual-purpose communications and sought mandamus relief at the D.C. Circuit.6262. The D.C. Circuit court heard this mandamus petition—an interlocutory order—because “the District Court’s privilege ruling constituted legal error” and also was an “error of the kind that justifies mandamus” under 28 U.S.C. § 1651. Id. at 756–57. As the court explained, “[m]andamus is a ‘drastic and extraordinary’ remedy ‘reserved for really extraordinary causes.’” Id. at 760 (quoting Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367, 380 (2004)).

In an opinion penned by then-Judge Kavanaugh, the Kellogg court found that the district court had applied an incorrect standard—the “but for” test—in its determination that the defendant may not withhold the documents under a claim of attorney-client privilege.6363. See id. at 759 (noting the District Court correctly set forth the “primary purpose” test, but “then said that the primary purpose of a communication is to obtain or provide legal advice only if the communication would not have been made ‘but for’ the fact that legal advice was sought”). The district court correctly cited the primary purpose test but erroneously described the test as a “but-for” inquiry.6464. See id. (noting that the lower court started its privilege inquiry “by reciting the ‘primary purpose’ test [for dual-purpose communications] . . . . [T]he District Court then said that the primary purpose of a communication is to obtain or provide legal advice only if the communication would not have been made ‘but for’ the fact that legal advice was sought”). The Circuit Court rejected the District Court’s application of the primary purpose test6565. See id. (noting the lower court’s error in asking the “but-for” inquiry to apply the primary purpose test). and took the opportunity to clarify precisely the proper standard:

[T]rying to find the one primary purpose for a communication motivated by two sometimes overlapping purposes (one legal and one business, for example) can be an inherently impossible task. It is often not useful or even feasible to try to determine whether the purpose was A or B when the purpose was A and B. It is thus not correct for a court to presume that a communication can have only one primary purpose. It is likewise not correct for a court to try to find the one primary purpose in cases where a given communication plainly has multiple purposes.6666. Id. at 759–60 (second emphasis added).

Thus, the Kellogg court soundly rejected “the primary purpose” standard as the appropriate test in questions of attorney-client privilege claims for dual-purpose communications. Instead, the D.C. Circuit explained that the following inquiry governs: “Was obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication?”6767. Id. at 760.

Despite careful treatment of the issue and a seemingly unambiguous standard offered by the Kellogg court, commentators remain skeptical of Kellogg’s legacy: “[W]hether Kellogg represents a broad and significant development in attorney-client privilege remains to be seen.”6868. Hazard, Hodes, & Jarvis, supra note 2, § 10–07.08. Although the D.C. Circuit decided Kellogg eight years ago, no other circuit has yet adopted the “a primary purpose” standard. Id. Circuits may continue to narrow Kellogg to its facts, as the Ninth Circuit did by distinguishing tax-related dual-purpose communications from those communications created as part of an internal investigation. In re Grand Jury, 23 F.4th 1088, 1094–95 (9th Cir. 2021) On the other hand, the Kellogg “a primary purpose test” standard has gained traction in a handful of district courts.6969. See, e.g., In re Grand Jury, 23 F.4th at 1095 n.4 (listing cases, e.g., in the Southern District of New York, the District of Maryland, and the Eastern District of Michigan, as instances in which the Kellogg test was adopted). And the D.C. Circuit continues to apply this standard in its assessment of attorney-client privilege for dual-purpose communications.7070. See, e.g., FTC v. Boehringer Ingelheim Pharms., Inc., 892 F.3d 1264, 1267–68 (D.C. Cir. 2018) (applying the Kellogg test to a dual-purpose communication, asking “whether obtaining or providing legal advice was one of the significant purposes of the communications at issue,” and, upon an affirmative finding, holding that the documents were protected by attorney-client privilege).

The Ninth Circuit declined the opportunity to adopt the Kellogg test—despite appellants’ arguments in In re Grand Jury: Appellants argued in the alternative that, should the court decline to adopt the “because of” test, the Kellogg “a primary purpose” test should govern.”7171. See In re Grand Jury, 23 F.4th, at 1094. The Ninth Circuit side-stepped the issue.7272. The court in a section header noted, “We Leave Open Whether the ‘A Primary Purpose Test’ Should Apply.” See id. Later decisions have endorsed the idea that the In re Grand Jury court avoided the issue. See, e.g., Meta Platforms v. Brandtotal Ltd., No. 20-cv-07182, 2022, U.S. Dist. LEXIS 4820, at *4–5 (N.D. Cal. Jan. 10, 2022) (noting that for dual-purpose communications, “the Ninth Circuit has declined to resolve whether legal advice must be ‘the primary purpose’ or merely ‘a primary purpose’”).  See also supra notes 60–65 and accompanying text. Although the court recognized the “merits of the reasoning in Kellogg” and indicated that it may be inclined to adopt the Kellogg test in a future dispute, it declined “to adopt or apply the Kellogg formulation of the primary-purpose test here.”7373. In re Grand Jury, 23 F.4th at 1094–95. Implying that the context in which dual-purpose communications are created is a dimension of the court’s focus, the Ninth Circuit distinguished Kellogg on the ground that it was formulated in light of corporate internal investigations, not tax-related documents as in In re Grand Jury.7474. See id. (“We also recognize that Kellogg dealt with the very specific context of corporate internal investigations, and its reasoning does not apply with equal force in the tax context.”). The Ninth Circuit may have sought to find a way to confine Kellogg to its facts in order to avoid the more corporate-friendly “a primary purpose” test for attorney-client privilege for dual-purpose communications. On the other hand, internal investigations are often an element of a corporate compliance program, and perhaps both the In re Grand Jury and the Kellogg court sought not to undermine future compliance efforts, and therefore treat differently on the margins dual-purpose communications generated in a corporate compliance-centered context.


Where does this holding leave law firms and business organizations? Although the In re Grand Jury court did not endorse the more corporate-friendly “a primary purpose” standard, those firms and organizations subject to the Ninth Circuit’s jurisdiction will benefit from the clear rejection of the “because of” test in the context of attorney-client privilege for dual-purpose communications.

In any event, both in-house and outside counsel should consider taking steps to designate the purpose for which documents meant to protect attorney-client privilege are created to inoculate against potential future document requests. As some commentators have suggested:

Regardless of how the purpose line is drawn by a court in any particular case, . . . attorneys and their clients may be able to influence—although perhaps not wholly control—the availability of the privilege by creating a record indicating why communications are occurring, or by segregating communications in aid of legal advice from those involving non-legal advice.7575. Hazard, Hodes, & Jarvis, supra note 2.

Thus, critical examination by attorneys of existing processes may be warranted to protect client interests.

In re Grand Jury has implications beyond the tax-law context. District courts in the Ninth Circuit already have relied on In re Grand Jury in order to determine the validity of assertions of privilege in other contexts. In an employment discrimination dispute, a magistrate judge for the District of Oregon conducted an in camera review of two email documents withheld by defendants on grounds of attorney-client privilege.7676. See Walker v. Shangri-La Corp., No. 6:20-cv-01577, 2022 U.S. Dist. LEXIS 16293, at *4 (D. Or. Jan. 28, 2022). Applying the “primary purpose test” as set forth in In re Grand Jury,7777. See id. at *3–4 (applying the In re Grand Jury formulation of the “primary purpose” standard). the magistrate determined that “the primary purpose of the communication was to receive legal advice from an attorney employed with reference to that attorney’s knowledge and discretion in the law”7878. Id. at *4. and concluded the documents were properly withheld on ground of attorney-client privilege.7979. See id. (finding upon application of the primary purpose test that “any discoverable content in the two e-mail documents is protected from disclosure under the attorney-client privilege”).

Interestingly, and perhaps hinting at the degree to which the recent decision clarified the proper standard for assessment of privilege claims, at least one district court in the Ninth Circuit cited to In re Grand Jury for its explication of the “because of” standard in the work product context.8080. Discovery Land Co. LLC v. Berkley Ins. Co., No. CV-20-01541-PHX, 2022 U.S. Dist. LEXIS 11604 (D. Ariz. Jan. 21, 2022). It is possible that the Arizona District Court misconstrued In re Grand Jury, given that it did not cite to the “primary purpose” standard as set forth in In re Grand Jury in its treatment of attorney-client privilege in the same decision. There, and unlike the In re Grand Jury court, the Arizona District Court faced a straightforward, single-purpose communication allegedly protected by work product privilege. The Arizona District Court framed the “because of” standard as an emanation of the In re Grand Jury decision, and the court applied this test to the communication in question to find that contested documents were protected by work product privilege.8181. See id. at *15–16 (“To determine whether a document qualifies for protection under the work-product protection, the Ninth Circuit has adopted a broad ‘because of’ test.” (citing In re Grand Jury, 23 F.4th 1095 (9th Cir. 2021))).

It remains possible that the Ninth Circuit will adopt the Kellogg test in a future dispute for which the difference between “a primary purpose” and “the primary purpose” carries weight. But the In re Grand Jury court explained that it was not obligated to consider the Kellogg test fully “[b]ecause the district court did not clearly err in finding that the predominate purpose of the disputed communications was not to obtain legal advice, [and therefore] they do not fall within the narrow universe where the Kellogg test would change the outcome of the privilege analysis.”8282. In re Grand Jury, 23 F.4th 1088, 1095 (9th Cir. 2021). In other words, the Ninth Circuit was not “persuaded that the facts here require us to reach the Kellogg question.”8383. Id. at 1094. In fact, the court signaled its openness to adopting the Kellogg test—at least under circumstances closely mirroring those present in Kellogg, and for litigants for whom the difference in privilege application between “a primary purpose” and “the primary purpose” is meaningful.8484. Id. at 1094–95 (noting that the Kellogg test “would save courts the trouble of having to identify a predominate purpose among two (or more) potentially equal purposes,” and explaining that “the universe of documents in which the Kellogg test would make a difference is limited”). Compounding the potential for a future dispute to force the Ninth Circuit to rule decisively on the issue, district courts in the circuit continue to acknowledge that the precise standard remains an open question.8585. See, e.g., Meta Platforms v. Brandtotal Ltd., No. 20-cv-07182, 2022 U.S. Dist. LEXIS 4820, at *4–5 (N.D. Cal. Jan. 10, 2022) (“If a communication serves more than one purpose, the Ninth Circuit has declined to resolve whether legal advice must be ‘the primary purpose’ or merely ‘a primary purpose.’”); Walker v. Shangri-La Corp., No. 6:20-cv-01577, 2022 U.S. Dist. LEXIS 16293, at *3 (noting that the In re Grand Jury court “declined to resolve whether its primary purpose test requires legal advice to ‘be the primary purpose or merely a primary purpose’”).

However, although a dispute in which a party argues in favor of the Kellogg standard likely will emerge in the Ninth Circuit, whether the Ninth Circuit will adopt the test remains murky. The Kellogg “a primary purpose” test has failed to gain traction since its 2014 promulgation, suggesting that sister circuits may be reluctant to embrace the broader Kellogg standard for attorney-client privilege for dual-purpose communications.8686. See, e.g., In re Grand Jury, 23 F.4th at 1094 n.3 (citing Alomari v. Ohio Dep’t of Pub. Safety, 626 F. App’x 558, 572–73 (6th Cir. 2015)) (applying the primary purpose test and not mentioning Kellogg). Moreover, many state courts have expressly endorsed “the primary purpose” standard.8787. See, e.g., In re Polaris, Inc, 967 N.W.2d 397, 408 n.1 (Minn. 2021) (citing cases from other state courts in support) (“Because we apply the attorney-client privilege narrowly, we agree with the overwhelming majority of state courts that have adopted the predominant purpose test and conclude that legal advice must be the primary purpose of the communication.”). And the Ninth Circuit’s incremental rulings in the space of dual-purpose communications hint at a reluctance to embrace fully the Kellogg test.8888. See, e.g., United States v. Sanmina Corp., 968 F.3d 1107, 1118–19 (9th Cir. 2020) (declining to decide the issue of proper standard in dual-purpose communications context); In re Grand Jury, 23 F.4th at 1094 (declining at this time to decide whether to embrace the Kellogg test). Thus, given general reluctance by courts to adopt the “a primary purpose” standard, Kellogg remains an outlier. Courts may be motivated to retain the primary purpose standard in order to avoid a corporate-friendly approach to attorney-client privilege. Moreover, as noted, the role of a compliance program may have cut in favor of the business organization in Kellogg in a way that does not easily extend to other contexts.


The Ninth Circuit’s In re Grand Jury holding clarified the intra-circuit split left open by the court a year prior in its Sanmina opinion. The In re Grand Jury court expressly rejected importing the “because of” standard from the work product context into the assessment of claims of attorney-client privilege for dual-purpose communications. Instead, the Ninth Circuit asserted that the “primary purpose” test governs. But questions still linger as to the precise test that may be applied in future disputes. In the case of a dual-purpose document formed with two equal purposes, what standard will apply? Will the Ninth Circuit ultimately join the D.C. Circuit in adopting the Kellogg “a primary purpose” framework? Or instead, will the court reject Kellogg explicitly, or implicitly by choosing to characterize one of the purposes as “the primary purpose”? The court’s signaling in In re Grand Jury—and the lower courts’ amplification—of the existing open issue of adoption of the Kellogg test could not be clearer. The Ninth Circuit will likely confront this issue once again and have another opportunity to clarify its stance on the Kellogg test.

Form, Substance, and Rule 23: The Applicability of the Federal Rules of Evidence to Class Certification

Madeleine M. Xu

Rule 23 of the Federal Rules of Civil Procedure governs the standards for certifying a class action, a type of litigation whose aggregate form is intended to make litigation accessible to large groups of injured plaintiffs and incentivize the vindication of claims that may otherwise go unpursued in the face of high litigation costs. However, while due process requires that a certifying court find that each element of Rule 23 is satisfied through “evidentiary proof,” the federal courts have failed to adopt any kind of consistent evidentiary standard to apply to the record proffered at class certification. This has resulted in the use of class certification as a bargaining chip between plaintiffs’ lawyers and wealthy defendants, rather than as a procedural mechanism that serves to test the propriety of a particular action for class treatment. Ultimately, this dynamic harms the very injured plaintiffs that this mechanism seeks to protect. This Note examines the need for a uniform evidentiary standard and surveys the countervailing interests of absent class members, defendants, class counsel, and the court at this critical juncture in a class action proceeding. It then proposes a novel categorization of the Federal Rules of Evidence as either form- or substance-based, and argues that an evidentiary standard that properly balances the interests of all parties involved in the class action requires a certifying court to apply substance-based evidence rules in determining whether a proposed class satisfies Rule 23. Such a rule, this Note will argue, is essential to ensuring that absent class members are protected, rather than exploited, by the class action mechanism.

Unraveling Williams v. Illinois

Edward K. Cheng, Cara C. Mannion

This Essay addresses one of the key evidentiary problems facing courts today: the treatment of forensic reports under the Confrontation Clause. Forensics are a staple of modern criminal trials, yet what restrictions the Confrontation Clause places on forensic reports is entirely unclear. The Supreme Court’s latest decision on the issue, Williams v. Illinois, sowed widespread confusion among lower courts and commentators, and during the 2018 Term, Justices Gorsuch and Kagan dissented to the denial of certiorari in Stuart v. Alabama, a case that would have revisited (and hopefully clarified) Williams.

Our Essay dispels the confusion in Williams v. Illinois. We argue that Williams involved three difficult and intertwined evidentiary questions: i) when experts may use inadmissible evidence as the basis of their opinions under Rule 703; ii) whether Rule 703 itself is consistent with the Confrontation Clause; and iii) whether reports that arise out of rigorous scientific processes implicate the Confrontation Clause at all. Along the way, we show that the answers to these questions help predict the future of the Confrontation Clause and offer a potential tool for improving forensic science.

The Talking Dead: Should Decedents’ Statements Fall Under Rule 801(d)(2)(A)?

Matthew W. Tieman

There is a circuit split as to whether a decedent’s statements can be entered into evidence under the exclusion from hearsay provided for party-opponent statements under Federal Rule of Evidence 801(d)(2)(A). The courts disagree as to the best characterization of decedents’ statements—whether they should be understood as privity-based admissions that, while admissible under the common law, are no longer admissible under the Federal Rules of Evidence, or if the decedent should be considered a party to the litigation, in which case the statements are admissible under Rule 801(d)(2)(A). This Note first discusses the circuit split by explaining the concept of privity-based admissions, conducting a statutory interpretation of the Federal Rules to determine if the enactment of the rules abrogated the common law admissibility of privity-based admissions, and analyzing whether it is appropriate for a decedent to be considered a party to the litigation. The Note then discusses policy reasons for a rule favoring exclusion—namely, the concerns about perjury and ensuring equitable treatment of the estate that gave rise to states’ Dead Man’s acts, and the fact that there may be other rules under which to admit the evidence. The Note concludes that a rule favoring admissibility is preferable because the claims would not be in front of the court but for the decedent, and a rule favoring admissibility will lead to more consistent outcomes.

The Costs of Waiver: Cost-Benefit Analysis as a New Basis for Selective Waiver of Attorney-Client Privilege

Mathew S. Miller

The nature of corporate criminal liability and the extreme consequences of indictment or conviction place great pressure on corporations to cooperate with federal prosecutors as they investigate corporate wrongdoing. This pressure often leads corporations to disclose privileged corporate communications, including internal investigation reports and notes from employee interviews, to aid prosecutors in their investigation. In most jurisdictions, once these documents are disclosed, the protections of the attorney-client privilege are waived as to everyone—a total waiver. However, in a minority of jurisdictions, when privileged corporate communications are disclosed to the government as part of a criminal investigation, the privilege is waived only as to the government and remains to prevent discovery by third parties, including civil plaintiffs—a selective waiver. Courts have provided various rationales for both positions, although none has been universally endorsed and all are subject to criticism. This Note provides a new justification for the selective waiver rule. It argues that utility-maximizing prosecutors will be more likely to ask for these critical privileged corporate communications under a selective waiver rule because of the high costs of the total waiver rule. This, in turn, will lead to a more efficient and robust investigation and prosecution of corporate crime.

Brady Materiality Before Trial: The Scope of the Duty to Disclose and the Right to a Trial by Jury

Christopher Deal

Brady v. Maryland requires prosecutors to disclose to criminal defendants all material, favorable evidence in the government’s possession. Evidence is material if its disclosure would have created a reasonable probability of a different verdict. Though materiality may correctly guide appellate courts in deciding when to reverse convictions, the author contends that it is both impractical and unconstitutional to ask prosecutors to use materiality as the measure of their disclosure obligations before trial. It is impractical because it requires prosecutors convinced of the defendant’s guilt to decide what combination of evidence, if disclosed, would create a reasonable probability of an acquittal at the end of a trial that has yet to begin. It is unconstitutional so long as due process means something other than that which produces the right outcome. This Note suggests that prosecutors should employ a balancing test based on the interaction of Brady disclosure rules and the defendant’s right to a trial by jury to determine when favorable evidence must be disclosed. This balancing test provides prosecutors with a disclosure standard that is simple, constitutional, and compatible with courts’ continued use of the materiality standard after trial.

The First Amendment as Criminal Procedure

Daniel J. Solove

This Article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other despite the fact that many instances of government information gathering can implicate First Amendment freedoms of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case Boyd v. United States, in which the Supreme Court held that the government was prohibited from seizing a person’s private papers. Over time, however, Fourth and Fifth Amendment protection has shifted, and countless searches and seizures involving people’s private papers, the books they read, the websites they surf, and the pen names they use when writing anonymously now fall completely outside the protection of constitutional criminal procedure. Professor Solove argues that the First Amendment should protect against government information gathering that implicates First Amendment interests. He contends that there are doctrinal, historical, and normative justifications for developing what he calls “First Amendment criminal procedure.” Solove sets forth an approach for determining when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide.

Overcoming Daubert’s Shortcomings in Criminal Trials: Making the Error Rate the Primary Factor in Daubert’s Validity Inquiry

Munia Jabbar

Daubert v. Merrell Dow Pharmaceuticals, Inc. and its progeny provide the federal standard for the admissibility of all expert evidence, including forensic evidence, that is proffered in criminal trials. The standard measures the validity of expert evidence through a flexible four-factor inquiry. Unfortunately, in the criminal context, Daubert fails to promote the goals of trial outcome accuracy and consistency, resulting in tragically unfair outcomes for criminal defendants. This Note proposes a doctrinal tweak that shifts the costs of admitting forensic evidence to the prosecution and promotes criminal justice goals. First, there should be a high presumption against the admission of forensic evidence that must be rebutted with a clear and convincing showing of its validity. Second, the Daubert validity inquiry needs to be reformulated so that the forensic methodology’s “error rate” factor is the primary (and if possible, only) factor the court considers. Third, the error rate should be defined as the lab-specific error rate. The Note ends by considering further possible ways to specify the definition of “error rate” to better promote criminal justice goals.

What Remains of the “Forfeited” Right to Confrontation? Restoring Sixth Amendment Values to the Forfeiture-by-Wrongdoing Rule in Light of Crawford v. Washington and Giles v. California

Rebecca Sims Talbott

Under the forfeiture-by-wrongdoing rule, a criminal defendant loses his Sixth Amendment right to confront a government witness when he intentionally prevents that witness from testifying at trial. As the rule currently operates, any and all prior statements by the missing witness can be admitted as substantive evidence against the defendant, regardless of whether they have been subjected to any of the procedural elements of confrontation. In this Note, I argue against such a “complete forfeiture” rule and propose a more “limited” rule in its stead. I argue, contrary to most courts and scholars, that forfeiture-by-wrongdoing cannot be justified by its punitive rhetoric, rendering its sweeping “complete forfeiture” result vulnerable to criticisms based on the primary lessons of Crawford v. Washington.

Safety in Numbers? Deciding when DNA Alone is Enough to Convict

Andrea Roth

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government’s case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is almost entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework—including a workable standard of proof—currently exists for determining sufficiency of the evidence in such a case. This Article is the first to interrogate the relationship between “reasonable doubt” and statistical certainty in the context of cold hit DNA matches. Examining the concepts of “actual belief” and “moral certainty” underlying the “reasonable doubt” test, I argue that astronomically high source probabilities, while fallible, are capable of meeting the standard for conviction. Nevertheless, the starkly numerical nature of “pure cold hit” evidence raises unique issues that require courts to apply a quantified threshold for sufficiency purposes. I suggest as a starting point—citing recent juror studies and the need for uniformity and systemic legitimacy—that the threshold should be no less favorable to the defendant than a 99.9% source probability.