A federal appellate court has reaffirmed a major 2014 ruling that has made it easier for corporations to keep communications between executives and in-house lawyers privileged. Circuit
In a 3-0 ruling, the United States Court of Appeals for the District of Columbia Circuit quashed subpoenas issued by the Federal Trade Commission that stemmed from an antitrust probe into two major pharmaceutical corporations.
The decision by the court stated that the subpoenas served sought documents that were protected by attorney-client privilege, and therefore undiscoverable. This decision reaffirms another DC Circuit case Kellogg, which stated that corporations can invoke attorney-client privilege to protect communications made with in-house lawyers that have both “a legal and business purpose.”
The court stated that what matters in situations such as these is whether obtaining or providing legal advice was one of the significant purposes of the communication.
In similar situations where a document or communication has had multiple purposes, courts have applied the “primary purpose test,” which is used to determine whether a communication is privileged. The Kellogg court stated that courts should consider whether obtaining or providing legal advice was one of the significant purposes of an attorney-client communication.
In this case, because the pharmaceutical company was obtaining or being provided legal advice regarding a possible antitrust issue, the communications are protected under the attorney-client privilege and are thus undiscoverable.
One of the Circuit judges wrote separately to emphasize that the attorney-client privilege is an exception to the general presumption which favors discovery, and therefore any party that is attempting to assert attorney-client privilege has a high burden to meet. In the underlying case, the magistrate judge had personally reviewed all documents at issue in camera and found that the burden had been met. To read the decision click here.
