Trump’s SCOTUS Choice, Judge Kavanaugh, Just Opined On “Privilege”

Brett Kavanaugh, the President’s nominee for the Supreme Court and current judge on the Court of Appeals for the DC Circuit, recently authored an opinion that lays out a relatively expansive view of privilege in the context of in-house communications. Privilege, he wrote, obtains in cases where “one of the significant purposes” of the communications is to obtain legal advice (“emphasis on ‘one,’” explains Todd Presnell in this blog post). Other widely cited precedents have applied either a “primary purpose” or the even more demanding “sole purpose” test to determine if there is privilege. In this case, Presnell explains, Judge Kavanaugh applied the primary purpose test, but noted the “inherently impossible task” of finding anyone primary purpose of a communication “and therefore held that the primary-purpose test requires courts to determine ‘whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.’ (emphasis by Judge Kavanaugh).”