In Re Grand Jury (21-1397)

argument 21-1397

In Re Grand Jury

Supreme Court of the United States 1h 7m 8 speakers 8 chapters transcribed 8 days ago official recording ↗

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What is the significant purpose test and how does it protect attorney‑client privilege?

John G. Roberts 0:00

We will hear argument first this morning in case twenty one thirteen ninety seven, in ray grand jury. Mr Levin.

Unknown 0:07

Mr Chief Justice, and may it please the Court. The significant purpose test protects clients' ability to seek bona fide legal advice from lawyers in situations where legal and non legal purposes can't be separated. The Ninth Circuit's primary purpose test denies the privilege to communications that have a legal purpose any time a court later finds that the non legal purpose outweighs the legal purpose even by a little bit. Taken seriously, that test requires parties and courts to disentangle competing purposes and to identify the single most important one. That is an inherently impossible exercise, and it creates the kind of uncertainty this court warned against in Upjon. And updot is instructive for other reasons here too.

Unknown 0:56

The investigation there obviously had business implications, but the court focused on the legal purposes. The government argued there, as it does here, that the privilege was unnecessary for communications that would have been made anyways, and the court rejected that. The government argued there, like it does here, the privilege would be too broad. The court rejected the government's control group test because it was unpredictable and frustrated full and frank communications. And just like in Upjohn, reversing here will not open the door to misuse of the privilege. Underlying facts are never privileged. If one part of a document has legal communications and a different part non legal, redactions are used.

Unknown 1:36

The proponent of the privilege still has the burden to meet all of the elements, and ordinary doctrines like crime fraud create additional guardrails. This Court should reverse the Ninth Circuit and adopt a significant purpose test, and I'd welcome the Court's questions.

Clarence Thomas 1:51

If you uh have a Uh uh purpose that is admittedly uh Significant. but also, admittedly, subsidiary. Uh then how would you handle that? How would you analyse that?

Unknown 2:11

From our perspective, that would be a privileged communication. And the reason for that is there is a legal purpose, an admittedly legal purpose to the communication. Were you to say, even if it were undisputed, The bigger purpose is nonlegal and still take away the privilege, you still wouldn't be protecting that legal communication. Now, if they are separate, if one is over here in this part of a document and the other is is over here, you can redact and just disclose the nonlegal.

Clarence Thomas 2:37

Trevor Burrus, Jr.: So how subsidiary would it have to be in order not to meet your tests?

Unknown 2:42

It has to be a bona fide legal purpose. It has to be real and legitimate. We think that's the easiest way to do that.

Clarence Thomas 2:48

I don't think that's the the point I'm after. It's the it could be legitimate, but a very minor subsidiary point. But to you it could be significant. So would you uh tease that out a bit, how you would analyze that under your test? Sure.

Unknown 3:05

Under our test, the proponent would have to show that there was a bona fide, that is, a legitimate legal purpose to the communication. If they could show that Whether how the degree of significance, whether it was twenty-five percent legal, thirty-three percent legal, forty-two percent legal, wouldn't matter. The point is, once you get over the threshold of it is a real and legitimate legal purpose. the privilege should attach.

Brett M. Kavanaugh 3:29

Can I ask a clarifying question about the difference between your opening brief and your reply brief on that, going to Justice Thomas's question? Maybe not difference, but clarification in your reply brief. Significant, as you are understanding it, is not about the size or the amount of the legal purpose, but rather is about, as I understand your reply brief, whether the legal purpose is legitimate, genuine, bona. Is that correct? That's correct, Your Honor.

John G. Roberts 3:58

Well I mean bona fide means good faith, right? I mean let's say you've got five different legal arguments, you know, one, two, three, four. Five is bona fide, it's in good faith. Maybe it'll work, maybe it won't. Is is that a a document privileged in that situation?