A Review of Judge Kavanaugh’s Privilege Opinions

As the Senate confirmation hearings begin this week on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court, let’s review the nominee’s privilege opinions from his 12-year stint on the D.C. Circuit Court of Appeals.

By my count, Judge Kavanaugh authored 9 substantive, privilege-related opinions, each summarized below, including a few I discussed in prior PoP posts.  As you will see, Judge Kavanaugh is a strong proponent of the corporate attorney–client privilege, applies statutes’ “plain meaning,” upholds government agencies’ withholding of documents under the deliberative-process privilege, and avoids issuing advisory opinions.

Attorney–Client Privilege

In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014).  In an influential opinion for corporate internal investigations and the corporate attorney–client privilege, Judge Kavanaugh upheld the attorney–client privilege for internal investigations conducted at in-house counsel’s direction.  Judge Kavanaugh ruled that the privilege applied even where government regulations required the investigation, and non-attorneys conducted the employee interviews. And in a move that will please in-house counsel, the SCOTUS nominee rejected a narrow view of the primary-purpose test for communications pertaining to legal and business matters.

Noting “evident confusion” about the primary-purpose test and stating that the district court’s “but for” analysis was “not appropriate for attorney–client privilege analysis,” Judge Kavanaugh articulated this standard: “Was obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication?” In other words, Judge Kavanaugh rejected the sole-causation test in favor of a broader test that, “sensibly and properly applied, … boils down to whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.”  You may read the opinion, and my full analysis of it, at this blog post.

Federal Trade Comm’n v. Boehringer Ingelheim Pharmaceuticals, Inc., 892 F.3d 1264 (D.C. Cir. 2018).  In his last privilege opinion prior to his SCOTUS nomination, Judge Kavanaugh faced the issue of what privilege standard applied to a General Counsel’s communications that involved both legal and business advice.  Judge Kavanaugh, applying his Kellogg decision, eschewed a narrow, but-for standard, and ruled that the privilege covered a General Counsel’s communications involving legal and business issues because “one of the significant purposes of [her] communications was to obtain or provide legal advice,” with an emphasis on “one.”  You may read the opinion, and my earlier analysis, at this blog post.

South Carolina v. United States, No. 12–203, U.S. District Court for the District of Columbia, August 10, 2012.  In this case, Judge Kavanaugh sat on a three-judge panel at the D.C. District Court under §5(a) of the Voting Rights Act.  In South Carolina’s declaratory-judgment action that its voting-related statutory modifications are entitled to preclearance under the Voting Rights Act, the question arose whether the attorney–client privilege protected documents prepared by an attorney for the South Carolina legislature.  Two judges said no—narrowly applying the privilege and finding that the attorney’s work was policy-related, not legal related.

Judge Kavanaugh dissented.  More…

Deliberative-Process Privilege Protects Agency’s Unapproved Meeting Minutes

A N.J. appellate court issued an interesting opinion for governmental entities responding to public-records requests.  The question was whether a public-records act requires a governmental agency to produce its draft, unapproved meeting minutes.  The N.J. court held that draft minutes are pre-decisional and deliberative, protected by the deliberative-process privilege, and not subject to a public-records request.  Libertarians for Transparent Gov’t v. Gov’t Records Council, 180 A.3d 327 (N.J. Super. 2018).  You may read the decision here.

Deliberative-Process Privilege

The deliberative-process privilege, a sub-category of the global executive privilege, protects from disclosure documents and information reflecting a governmental agency’s deliberations prior to a final decision.  The privilege encourages agency employees to engage in open debate about government policy by precluding their pre-decision comments from public disclosure.  It therefore protects advisory opinions, recommendations, and deliberations.

To invoke the privilege, the governmental agency must show that the requested document is (1) pre-decisional, meaning the agency created it before adopting the corresponding policy or decision; and (2) deliberative, meaning that it contains opinions, recommendations, or advice.

Government Records Council

New Jersey’s Government Records Council, which, ironically, “is committed to making the Open Public Records Act (OPRA) work for the citizens of New Jersey,” and has “worked hard to make government records more easily accessible to the public,” held its monthly meeting on February 23, 2016.  The GRC took minutes and was ready to approve them at the March 2016 meeting, but the GRC cancelled that meeting for lack of a quorum. More…