Redgrave LLP Files Amicus Brief on Behalf of Lawyers for Civil Justice Addressing the “Primary Purpose” Test for Assessing Privilege Claims

On June 30, 2025, Redgrave LLP filed an amicus brief in the United States Court of Appeals for the Ninth Circuit on behalf of Lawyers for Civil Justice (“LCJ”) (www.lfcj.com) concerning Epic Games v. Apple.  The brief urges the Ninth Circuit to reverse the district court’s contempt order against Apple with respect to the privilege test applied to Apple’s dual-purpose communications, and instruct the district court to reevaluate Apple’s privilege claims by applying the significant legal purpose test set forth by the D.C. Circuit in In re Kellogg Brown & Root, Inc.

In the In re Grand Jury matter four years ago, the Ninth Circuit made clear that the “primary purpose” test applies to attorney-client privilege claims for dual-purpose communications that involve both legal and non-legal considerations.  As that opinion recognized, different courts have adopted different versions of the primary purpose test.  Some courts have applied a “single primary purpose” test and required that the party claiming privilege establish that the sole primary purpose of a dual-purpose communication was to render or obtain legal advice, with that purpose predominating over all others.  Other courts, following the approach articulated by the D.C. Circuit in Kellogg, have applied a more flexible “significant legal purpose” test under which the attorney-client privilege may apply so long as a significant purpose of a dual-purpose communication was to seek or provide legal advice.  The Court in In re Grand Jury expressly left open which version of the primary purpose test should apply in the Ninth Circuit, because the outcome of that case would be the same regardless of which version applied.

The amicus brief urges the Court to resolve the question it left open in In re Grand Jury.  The district court issued a civil contempt order based in part on its denial of Apple’s claims of privilege over documents and communications related to Apple’s efforts to comply with the court’s injunction that addressed both legal and business considerations.  In determining that those dual-purpose communications are not privileged, the district court applied the more rigid single primary purpose test, and rejected Apple’s argument that the D.C. Circuit’s more flexible significant legal purpose test should be applied instead.

LCJ’s brief argues that the Ninth Circuit has already recognized the “merits” of applying the significant legal purpose test to dual-purpose communications in appropriate contexts, and should now take this opportunity to clarify that the significant legal purpose test is the proper method of determining whether dual-purpose communications satisfy the “primary purpose” standard for attorney-client privilege protection— particularly in situations like Apple’s, where the communications involve a context (such as efforts to comply with a court order) in which business and legal considerations are inherently intertwined.

The brief explains that applying the significant legal purpose test will streamline the resolution of privilege disputes and enhance predictability for both parties asserting and challenging privilege claims, while application of the rigid single primary purpose test will render the privilege unpredictable and unreliable in precisely the types of internal deliberations where it is most needed.  The amicus brief thus recommends that the Ninth Circuit reverse the district court’s order with respect to Apple’s attorney-client privilege claims and remand with instructions to apply the significant legal purpose test.

LCJ is a national coalition of defense trial lawyer organizations, law firms, and corporations that promotes excellence and fairness in the civil justice system to secure the just, speedy, and inexpensive determination of civil cases.

LCJ is represented by Jonathan M. Redgrave, who drafted the brief along with Gareth T. Evans, Nick B. Snavely, Ted S. Hiser, and Emma D. Hall.

To read the full amicus brief, click here.