[11] The Federal Circuit first considered which law to apply, its own or the law of the regional circuit in which the case was being heard. The issue of choice of law has special importance in the area of privilege, because Federal Rule of Evidence 501 provides that “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”[12] However, in determining whether specific materials are discoverable, the Federal Circuit applies its own law if the materials relate to an issue of substantive patent law.

Verus and its supporters offered two principal arguments, the first of which was that the court should recognize an “insurance examination privilege.” In cases arising under federal statutes, Federal Rule of Evidence 501 provides that privilege issues are governed by federal common law. When federal courts are asked to recognize a new privilege, they consider such factors as “policy decisions of the States,” whether the privilege will “serv[e] public ends” and the “likely evidentiary benefit that would result from denial of the privilege.”

Under California’s newly enacted Evidence Code Section 956(b), so long as an attorney “advises the client on conflicts with respect to federal law,” the crime-fraud exception won’t impact the attorney-client privilege where the advice is “rendered in compliance on state and local laws on medical cannabis or adult-use cannabis.” Before celebrating, however, be mindful of Federal Rule of Evidence 501. Where federal law governs a claim, federal courts do not apply state law privileges and therefore will not apply Evidence Code Section 956(b).

The Federal Circuit first considered which circuit's law to apply. The issue of choice of law has special importance in the area of privilege, because Federal Rule of Evidence 501 provides that "in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." Fed. R. Evid. 501.

The SCA privilege did not apply because it was not recognized in Georgia. Federal Rule of Evidence 501 “mandates that state law determine privilege applicability when state law ‘supplies the rule of decision’ for ‘an element of a claim or defense.’” Id. at *2 n.2 (quoting Fed. R. Evid. 501).

InKJ-Park, LLC v. Match Group, LLC,Case No. 23-cv-02346-VKD, 2024 U.S. Dist. LEXIS 11024, at *3 (N.D. Cal. Jan. 22, 2024), the court started its privilege discussion by stating: “[b]ecause the sole basis for federal jurisdiction in this case is diversity jurisdiction, California state law supplies the rule of decision in this action, and California state law governs application of the attorney-client privilege” — then immediately applied California privilege law. Three days later, the court inCooley v. C.R. Bard, Inc., Case No. 3:22-cv-1754-MMA-KSC, 2024 U.S. Dist. LEXIS 13722, at *10 (S.D. Cal. Jan. 25, 2024), did the same thing — stating that “[t]his is a diversity case . . . [a]ccordingly, California law, not federal common law, controls this [privilege] issue” — then immediately applied California privilege law. Courts properly applying Fed. R. Evid. 501 do not automatically apply their host state’s privilege law — they apply their host state’schoice of laws rules— which may result inanotherstate’s privilege law applying. Surprisingly, many federal courts seem to get this wrong.Wise lawyers should be on the lookout for federal courts’ knee-jerk application of their host state’s privilege law — if the host state’s choice of laws rules would result in application of another state’s more favorable privilege standard. Next week’s Privilege Point will describe a court which got it right — with a surprising result.

rpose, we're not going to say really anything about what it means because we're just going to let courts continue to do what they do? Because we can't really say tie goes to the runner, right, when the burden is on the person invoking the privilege? We can't get into this whole put a percentage on it for the reasons that we've already talked about. So maybe it's best to say nothing?What's the go-forward for practitioners?After the Supreme Court's dismissal, the federal circuits remain split on the appropriate test to determine attorney-client privilege for dual-purpose communications. The Second, Fourth, Fifth, Sixth, Eighth, Ninth and D.C. Circuits apply a version of the primary purpose test, which remains valid law within those circuits.[4]The D.C. Circuit's significant purpose test remains applicable to disputes within that circuit.[5] The remaining circuits have yet to publish opinions on the appropriate test. And disputes in state court, or those governed by state law pursuant to Federal Rule of Evidence 501, remain subject to the dual-purpose test adopted by each applicable state.This hodgepodge of tests means practitioners must be aware of the jurisdictional standard that could apply to their clients' disputes. Practitioners also should follow the law's evolution in this area.For instance, the Ninth Circuit's opinion in In re: Grand Jury expressly left open whether the circuit might adopt a test more like the D.C. Circuit's 2015 opinion in In re: Kellogg Brown & Root Inc., noting: "We see the merits of the reasoning in Kellogg. But we see no need to adopt that reasoning in this case."[6]Meanwhile, practitioners should exercise caution, evaluate, and potentially adjust their protocols for creating communications, ideally avoiding communications that combine both legal and nonlegal purposes whenever possible. If In re: Grand Jury has accomplished one thing, it is to bring additional — and for the unprepared unwelcome — attention to this facet of the attorney-client privilege.It remains to

, Blackstone won out because no one knew what other law to apply. The trouble with the “common law” as digested by Judge Blackstone becomes apparent when you read his commentary on the rights of women. The law of spousal privilege is derived from the concept that the sanctity of marriage was so important that no spouse could be forced to give testimony adverse to a partner in marriage no matter how important the subject of the communication between the married couple to the public good. We’ll see that play out in a case decided last week by the Superior Court of Pennsylvania. But let’s first look at some law.There are two spousal privileges under Pennsylvania law that may apply in a civil action: the privilege not to testify against one’s spouse, 42 Pa. Cons. Stat. § 5924, and the privilege not to testify about confidential communications between spouses, 42 Pa. Cons. Stat. § 5923. Brown v. Scafidi, 839 F. Supp. 342, 344 (E.D. Pa. 1993). See Emmi v. Deangelo USDC-EDA No. 16-337 (2017).Federal Rule of Evidence 501 explicitly states that on the subject of privilege, the “common law” applies unless there is subsequent federal law to the contrary. So let’s have a look of what Justice Blackstone has to offer concerning the “effects” of marriage. Forgive me if I bold the juicy parts.“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, andcover, she performs every thing; and is therefore called in our law-French afeme-covert, foemina viro co-operta; is said to becovert-baron, or under the protection and influence of her husband, herbaron, or lord; and her condition during her marriage is called hercoverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rig

B when the purpose was A and B.” Kellogg, 756 F.3d at 759.4 And the difficulty of predicting the outcome of a court’s ex post determination under such a comparative standard creates ex ante uncertainty about whether a communication is privileged, defeating the purpose of the privilege which is to encourage candor in communications made for the purpose of obtaining or rendering legal advice. As the Supreme Court stated in an earlier privilege case, “uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” Upjohn v. United States, 449 U.S. 383, 393 (1981). “[F]or the attorney-client privilege to be effective, it must be predictable.” United States v. Jicarilla Apache Nation, 564 U.S. 162, 183 (2011).Another factor likely to keep the Court from straying far from the standard embraced by the government at argument is that the Court’s authority is limited to delineating the privilege under Federal Rule of Evidence 501 in light of reason and experience. That standard on its face commends some adherence to standards generally accepted in state courts, many of which articulate a “primary purpose” standard even if in application that standard comes close to the D.C. Circuit’s in Kellogg and Boehringer.5 Moreover, having radically different privilege inquiries in state and federal court would undermine the policy behind the privilege, because it will often be difficult to know in advance whether a state or federal court would be deciding the privilege question, and as noted, uncertainty inhibits candor.The Supreme Court seems likely to land within haling distance of Kellogg and leave it to the Ninth Circuit to apply that standard to the documents sought by the grand jury but withheld by the law firm. Petitioner’s standard is predictable, but because it invites the participation of lawyers in communications for the purpose of shielding them from disclosure, it is too amenable to abuse. Avoiding the need

In California, the attorney-client privilege acts “‘to safeguard the confidential relationship between clients and their attorneys.’” The purpose of therelationship between the attorney and the client is key to establishing privilege. Federal law, governed by Federal Rule of Evidence 501, is similar but instead focuses on whether the predominant purpose of a particular communication is to seek legal advice. Generally speaking, federal courts find that attorney-client privilege applies to communications “where legal advice of any kind is sought.” As to internal investigations in particular, the privilege will normally attach as long as obtaining or providing legal advice was one of the “significant purposes of the internal investigation,” even if there were also “other purposes.”