This week, Privacy World’s Kristin Bryan was interviewed by Bloomberg Law regarding the Supreme Court dismissal as “improvidently granted” a case involving an unnamed law firm seeking to prevent the U.S. government from accessing the records of a client accused of violating tax laws.  The Court’s ruling has implications for frequently raised privilege issues in other data breach and cybersecurity cases, as covered by Bloomberg.  In re Grand Jury, Dkt. No. 21-1397.

In re Grand Jury presented the issue of whether a communication involving both legal and non-legal advice is protected by attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication. The Supreme Court’s dismissal leaves intact the prior ruling of the Ninth Circuit from September 2021.  13 F.4th 710 (9th Cir. 2021).  There, the grand jury issued subpoenas related to a criminal investigation.   The district court held a law firm and its client (an unnamed company) in contempt after they failed to comply with the subpoenas.  The district court had ordered the law firm to produce documents to the government after redacting tax-related legal advice. The district court ruled that certain dual-purpose communications between the law firm and its client were not privileged because the “primary purpose” of the documents was to obtain tax advice, not legal advice.  Before the Ninth Circuit, the law firm and its client (collectively, “appellants”) argued that the district court erred in relying on the “primary purpose” test and should have instead relied on a broader “because of” test.  The Ninth Circuit, however, affirmed and concluded that the primary-purpose test governs in assessing assertions of attorney-client privilege for dual-purpose communications.

Disputes over privilege can arise in data breach and cybersecurity litigations, as forensic reports and communications related to a forensic report’s findings are frequently sought by plaintiff’s in discovery to buttress their claims and theories, Privacy World previously covered).  Be sure to check out Bloomberg Law’s analysis of this decision.

And for more, stay tuned.  Privacy World will be there to keep you in the loop.