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…

SCOTUS Nominee’s Latest Privilege Opinion: A Win for Corporate Legal Counsel

Judge Brett Kavanaugh, President Trump’s nominee to replace Justice Kennedy on the U.S. Supreme Court, recently authored an important attorney–client privilege opinion for corporate legal counsel.

Judge Kavanaugh held 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.”  Federal Trade Comm’n v. Boehringer Ingelheim Pharmaceuticals, Inc., 2018 WL 3028972 (CADC June 19, 2018). You may read the decision here.

A GC’s Communications

In 2008, Boehringer, a pharmaceutical company, negotiated a patent-infringement settlement with generic-drug manufacturer Barr Pharmaceuticals.  The agreement was a so-called “reverse-payment” settlement because the patent holder (Boehringer) paid the alleged infringer rather than the other way around.

The FTC, which monitors reverse-payment settlements to ensure compliance with antitrust laws, issued a subpoena to Boehringer requesting, in part, communications involving Boehringer’s General Counsel. The requested communications allowed the GC “to analyze and navigate the treacherous antitrust issues surrounding reverse payment settlements,” but also reflected her communications with Boehringer executives regarding a possible settlement.  Boehringer argued that the attorney-client privilege protected the entirety of the communications.

Two Purposes

Noting that the attorney–client privilege “applies whether the attorney is in-house counsel or outside counsel,” Judge Kavanaugh recognized that “[t]he application of the attorney–client privilege can become more complicated when a communication has multiple purposes—in particular, a legal purpose and a business purpose.”

Judge Kavanaugh found that More…