Key Takeaways
- Correction (2026-08-19): An earlier version of this article described a D.C. Circuit decision imposing a new “subject-matter-specific” test for attorney-client privilege in internal corporate investigations. The verifiable record is different: the Ninth Circuit, sitting en banc, applied the primary purpose test to dual-purpose communications in In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021), and the Supreme Court subsequently dismissed the writ of certiorari as improvidently granted, In re Grand Jury, 598 U.S. 15 (2023) (per curiam), leaving the Ninth Circuit's en banc decision in place. Practitioners should treat the primary purpose test as the operative standard for dual-purpose communications.
The State of the Primary Purpose Test After In re Grand Jury
Primary sources
- 2021-09-13 Court opinion“In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021) (en banc) — certiorari granted and dismissed as improvidently granted by the Supreme Court in In re Grand Jury, 598 U.S. 15 (2023).”
- 2023-01-23 Court opinion“The writ of certiorari is dismissed as improvidently granted. It is so ordered.”