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How Can I Prove That “I Am Not a Crook”?: Revisiting the Nixon Standard to Revitalize Rule 17(C)

Cara C. Day

Rule 17(c) of the Federal Rules of Criminal Procedure governs the ability of parties in a federal criminal case to discover material from one another and from nonparties prior to or during trial. The language of Rule 17(c) itself is broad and allows for any subpoenas to be issued so long as they are not “unreasonable or oppressive.” Yet, the Supreme Court, in two cases, Bowman Dairy Co. v. United States and United States v. Nixon, substantially narrowed the applicability of the Rule, such that— absent affirmative showings of admissibility, relevance, and specificity for all material sought—parties are not entitled to discovery. While this high bar for discovery does not create major issues for the prosecution, which has already conducted sweeping discovery during the grand jury process, the defense is left at the mercy of the Nixon standard and its requisite, near-insurmountable showings to obtain subpoenas. While some have critiqued the current system of federal criminal discovery, few have focused on the best way to reform that system, without overturning any Supreme Court precedent. And the literature that has proposed reforms to the criminal discovery system has concentrated on altering the text of Rule 17 itself. This Note instead advocates for a court-driven approach to reform and, in doing so, argues that this solution is preferable to Rule reform when one weighs speed and clarity. This Note proposes a novel approach to Rule 17(c) jurisprudence and the defense discovery system by providing historical context for Nixon and elucidating the due process and compulsory process concerns with this legal regime, ultimately recommending that courts use different standards of evaluation depending on the target of the subpoena—be it an opposing party, a nonparty, or the President of the United States.

United States v. Patterson

Elizabeth Bays

Elizabeth Bays²2. * Copyright © 2024 by Elizabeth Bays. J.D., 2023, New York University School of Law. Thank you to the New York University Law Review editors for all of their hard work and helpful suggestions along the way. This piece is dedicated to John Scanlan, who first taught me evidence law.

Recent Case: United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *12–13 (2d Cir. Dec 21, 2022).

Introduction

In the wake of the COVID-19 pandemic, questions about the constitutionality of testimony using two-way video platforms like Zoom have gained greater prominence and taken on greater urgency. These questions have played out in both state and federal courts.³3. See, e.g., United States v. Akhavan, 523 F. Supp. 3d 443 (S.D.N.Y. 2021) (addressing a Sixth Amendment challenge to video testimony); United States v. Casher, No. CR 19-65-BLG-SPW, 2020 U.S. Dist. LEXIS 106293 (D. Mont. June 17, 2020); State v. Tate, 969 N.W.2d 378, 391 (Minn. Ct. App. 2022). Ordinarily, video testimony by prosecution witnesses in criminal cases is a nonstarter with any court in the United States. This reticence to adopt video technology stems from the protections of the Sixth Amendment.⁴4. Maryland v. Craig, 497 U.S. 836, 850 (1990) (declaring that the right to face-to-face confrontation—as opposed to video confrontation—may not be easily dispensed with). The Confrontation Clause of the Sixth Amendment guarantees defendants the right to confront their accusers in court.⁵5. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”). The Supreme Court has held that this requires face-to-face, in-person testimony from prosecution witnesses,⁶6. Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (“We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before trial.”). even if such confrontation is inconvenient or even traumatic for the parties involved.⁷7. Id. at 1020 (“The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential ‘trauma’ that allegedly justified the extraordinary procedure in the present case.”).

This general prohibition on video testimony is not simply a matter of conforming to some esoteric interpretation of what the Framers expected trials to look like.⁸8. Although the constitutional issue alone should give proponents of video testimony pause. Using video testimony can materially degrade the experiences of witnesses, the reliability of their testimony, and, most importantly, the ability of fact finders to evaluate their credibility. For instance, people are more likely to lie during virtual conversations than in-person ones.⁹9. In 2004 in a seminal paper by Hancock et al, researchers examined the effects of digital communication on the likelihood that someone will lie. Jeffrey T. Hancock, Jennifer Thom-Santelli & Thompson Ritchie, Deception and Design: The Impact of Communication Technology on Lying Behavior, in Proceedings of the SIGCHI Conference on Human Factors in Computing Systems 129 (2004). They collected data on the effects of three features present in different types of digital communication: synchronicity (i.e., the degree to which messages are communicated in real-time), recordability (i.e., the degree to which the interaction is automatically documented and preserved), and distribution (i.e., whether the users are physically co-present). Id. at 130. They found that people were most likely to lie when they communicated in an unrecorded, synchronous, distributed environment (i.e., one in which people must communicate digitally rather than face to face, in real-time, and are not recorded). Id. at 133. In 2022, David Markowitz replicated and expanded the findings of the Hancock study with more modern technology. David M. Markowitz, Revisiting the Relationship Between Deception and Design: A Replication and Extension of Hancock et al. (2004), 48 Hum. Commc’n Rsch. 158 (2022). Markowitz found that lying is more dependent on the personal characteristics of the speaker than on the type of media used. Id. at 163. However, he also found that people were slightly more likely to lie over the phone or over video chat than they were in face-to-face communications. Id. at 163 tbl.2 (finding 11.77% mean percentage of lies during phone interactions and 12.31% during video chat interactions, as compared to 9.55% in face-to-face settings). Jurors already struggle to evaluate credibility based on the demeanor of live witnesses;¹⁰10. See Julia Simon-Kerr, Unmasking Demeanor, 88 Geo. Wash. L. Rev. Arguendo 158, 166–67 (2020) (explaining that reliance on visual cues of demeanor results undermines juries’ abilities to distinguish truth from deception). they struggle even more with virtual witnesses, whose eye contact and posture are obscured by the virtual format.¹¹11. See Susan A. Bandes & Neal Feigenson, Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom, 68 Buff. L. Rev. 1275, 1294–1300 (2020) (indicating that viewers may misconstrue the apparent lack of eye contact from witnesses produced by those witnesses looking at the screen rather than the camera and the absence of physical cues, such as posture); see also Daniel M. Bialer, Note, Assessing Witness Demeanor in the Age of COVID-19 and Beyond, 31 Cornell J.L. & Pub. Pol’y 451 472–73 (2022) (describing distortions in demeanor evidence stemming from virtual testimony and recommending that its use be limited). The virtual format can create emotional distortions for the jury as they struggle to connect with a witness appearing online.¹²12. See Bandes & Feigenson, supra note 9, at 1292–1300 (describing difficulties juries have in evaluating virtual testimony). Meanwhile, issues with audio quality are common, leading to jurors having difficulty processing information.¹³13. See id. at 1301–02 (describing the risk of viewers attributing the negative feelings arising out of “poor audio quality” or “lack of synchronicity between video and audio” to witnesses themselves). At this stage, an indiscriminate increase in the use of video testimony poses a substantial risk, not just to a constitutional principle, but to the reliability of our trials.

As a result, it is important that courts set clear parameters around the use of video testimony. Academic literature since 2020 has focused on the sufficiency of the COVID-19 pandemic as a justification for video testimony,¹⁴14. See, e.g., Jessica Arden Ettinger, David Gerger & Barry J. Pollack, Ain’t Nothing Like the Real Thing: Will Coronavirus Infect the Confrontation Clause?, Champion, May 2020, at 57–59 (arguing that the pandemic does not justify abridging defendants’ confrontation rights without more specific factual findings); Brandon Marc Draper, Revenge of the Sixth: The Constitutional Reckoning of Pandemic Justice, 105 Marq. L. Rev. 205, 259–63 (2021) (arguing for a constitutional amendment to permit virtual trials); Garret Stone, Please Unmute Yourselves, Court Is Now In Session—The Future of the Confrontation Clause Post-COVID-19, 11 Wake Forest J.L. & Pol’y 133, 147 (2021) (arguing that the pandemic justifies virtual testimony for auxiliary witnesses like experts, character witnesses, and witnesses brought in for authentication purposes, but not for vital eyewitnesses with first-hand knowledge of the crime). the scientific evidence needed to back a finding of such sufficiency,¹⁵15. See Elizabeth Bays, Note, Mr. Crawford Gets COVID: Courts’ Struggle to Preserve the Confrontation Clause During COVID and What It Teaches Us About the Underlying Rights, 98 N.Y.U. L. Rev. 239, 259–63 (2023) (arguing that undue deference was given to executive branch determinations of scientific necessity). and the relative merits of video testimony as compared to other forms of modified confrontation during a global health crisis.¹⁶16. See id. at 257–59 (noting that, depending on which aspect of the confrontation right judges found most important, different modes of modified confrontation are were practiced); Ayyan Zubair, Note, Confrontation After COVID, 110 Calif. L. Rev. 1689, 1708–10 (2022) (arguing that Rule 15 depositions should have been used as an alternative to video testimony); Zoë Green Appler, Note, COVID-19 & The Sixth Amendment: Questions of Confrontation, Credibility, and Constitutionality in Cook County’s Courtrooms, 71 Chi.-Kent L. Rev 441, 466–70 (2022) (arguing in favor of virtual testimony over socially distanced in-person testimony because of courthouse capacity issues and proposing best practices for such virtual testimony). Yet, even before a court reaches the question of whether video testimony should be allowed in a particular case or during a particular crisis, it must decide which standard it plans to use in answering that question. For that reason, there has been renewed interest in a longstanding circuit split over the standard that should be used by trial courts when deciding whether to permit video testimony.

In United States v. Patterson, the Second Circuit reaffirmed its rather idiosyncratic standard for the use of video testimony.¹⁷17. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *12–13 (2d Cir. Dec 21, 2022) (“The district court rightly applied Gigante in determining whether Elliott could testify via two-way video.”). Patterson involved a set of facts common to many COVID-era video testimony decisions: The trial took place in early 2021, before vaccines were widely available and while air travel was still considered quite risky, yet medically fragile witnesses from out of town needed to be procured.¹⁸18. Id.; United States v. Akhavan, 523 F. Supp. 3d 443, 452 (S.D.N.Y. 2021) (citing then-current CDC recommendations against travel); see also, e.g., United States v. Davis, No. 19-101-LPS, 2020 U.S. Dist. LEXIS 196624 at *8–11 (D. Del. Oct. 23, 2020) (“[T]he Court is merely concluding that each of the seven witnesses identified by the government is—based principally on a combination of his or her distance from Delaware and his or her particularized risk factors—. . . ‘unavailable’ to testify at trial.”); State v. Milko, 505 P.3d 1251, 1253 (Wash. Ct. App. 2022) (describing two witnesses complaints that “they were not able to fly to Washington to give their trial testimony in person because of significant health concerns related to COVID-19”). A key witness to the prosecution’s case was located in California, while the trial was taking place in New York.¹⁹19. United States v. Akhavan, 523 F. Supp. 3d 443, 446 (S.D.N.Y. 2021). The witness was 57 years-old and suffered from several conditions that exacerbated his risk of serious complications should he contract COVID-19.²⁰20. Id. at 451. So, he requested permission to testify from California via two-way video, rather than traveling to New York City.²¹21. Id. The district court permitted that accommodation.²²22. Id. at 456.

In affirming the district court’s decision, the Second Circuit reconsidered and eventually reaffirmed its own longstanding precedent from United States vs. Gigante which permits video testimony upon a finding by the district court that “exceptional circumstances” exist and that permitting the video testimony would “further the interest of justice.”²³23. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *11 (2d Cir. Dec 21, 2022) (citing United States v. Gigante, 166 F.3d 75, 80–82 (2d Cir. 1999)). That standard has been widely criticized by courts in other jurisdictions as too permissive of video testimony. Indeed, all other circuits that have considered the “exceptional circumstances” standard from Gigante have rejected it, as have some state courts of last resort.²⁴24. See, e.g., United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005) (rejecting the Gigante standard as inconsistent with both the Eighth Circuit’s and the Supreme Court’s Sixth Amendment precedent); United States v. Yates, 438 F.3d 1307, 1312–13 (11th Cir. 2006) (rejecting the Gigante standard as inconsistent with the Supreme Court’s Sixth Amendment precedent); People v. Jemison, 505 Mich. 352, 355–56 (2020) (rejecting video testimony as violative of state and federal constitutional rights to confrontation); State v. Tate, 985 N.W.2d 291 (Minn. 2023) (same). In the wake of the pandemic, some federal district courts have followed the Second Circuit, but these have not yet been reviewed by the relevant circuits. See, e.g., United States v. Davis, No. 19-101-LPS, 2020 U.S. Dist. LEXIS 196624, at *8, *13 (D. Del. Oct. 23, 2020) (citing to the Second Circuit’s Gigante standard); United States v. Cole, No. 1:20-cr-424, 2022 U.S. Dist. LEXIS 17300 at *8 (N.D. Ohio Jan. 31, 2022) (adopting the lower court’s Gigante approach but claiming that the two-way closed circuit testimony at issue would be acceptable “even under the higher standard applied in other circuits”). In Patterson, the defendants challenged the Gigante standard, but the Second Circuit declined to change course.²⁵25. Patterson, 2022 U.S. App. LEXIS 35264, at *11. Applying the Gigante standard, the Second Circuit found that, because the witness could not travel across the country without exposing himself to the risk of serious illness, exceptional circumstances warranted the use of video testimony.²⁶26. Id. at 12–13.

The Defendants in Patterson, Akhavan and Weigand, petitioned the Supreme Court for certiorari on March 2, 2023.²⁷27. Petition for Writ of Certiorari, Akhavan v. United States, 143 S. Ct. 2639 (2023) (No. 22-844). The petition was denied on June 20, 2023,²⁸28. Weigand v. United States, 143 S. Ct. 2639, 2639 (2023). leaving courts across the country with a lack of clarity on the permissibility of video testimony going forward.

I. Background

A. The Situation at Trial

Defendants Akhavan and Weigand were charged with conspiracy to obtain money from a financial institution by false representation in connection with their work for a company called Eaze.²⁹29. Patterson, 2022 U.S. App. LEXIS 35264, at *1–2. Eaze is an on-demand marijuana delivery service that partnered with local marijuana retailers to provide marijuana products to customers in states that allowed such products.³⁰30. Petition for Writ of Certiorari at 4, Akhavan v. United States, 143 S. Ct. 2639 (2023) (No. 22-844). Many financial institutions, including Visa and Mastercard, have policies that prohibit credit card activity connected with “unlawful transactions.”³¹31. United States v. Akhavan, No. 20-cr-188, 2021 U.S. Dist. LEXIS 124370, at *7 (S.D.N.Y. July 2, 2021). Because the sale and distribution of marijuana are still illegal at the federal level, the financial institutions’ policies would not permit customers to make bulk purchases through Eaze.³²32. Id. at *6–7. This was despite the fact that the transactions were perfectly legal under state law in the states where the customers were making their purchases.³³33. United States v. Weigand, 482 F. Supp. 3d 224, 232–33 (S.D.N.Y. 2020).

Akhavan and Weigand circumvented these restrictions by contracting to run their transactions through fake companies that did not appear to be marijuana-related.³⁴34. Id. Thus, when customers made purchases, their transactions would not trigger the credit card companies’ policies.³⁵35. Id. The government claimed that the defendants were conspiring to obtain money from the credit card companies by means of a material misrepresentation about the nature of the transactions, in violation of 18 U.S.C. § 1349 and 18 U.S.C. § 1344.³⁶36. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *1 (2d Cir. Dec 21, 2022).

One of the defenses the defendants raised was that the misrepresentations were non-material—i.e., that the credit card companies would have processed the marijuana transactions anyway, regardless of their official policies.³⁷37. Akhavan, 2021 U.S. Dist. LEXIS 124370, at *4–12. As a result, testimony from Visa and Mastercard employees about the companies’ practices regarding marijuana transactions became a key piece of the trial.³⁸38. United States v. Akhavan, No. 20-cr-188, 523 F. Supp. 3d 443, 451 (S.D.N.Y. 2021) (quoting the defense as claiming that “questions about what Visa’s policies did (or did not) require and how Visa did (or did not) enforce those policies are among the most critical questions in this case”). In order to produce this critical testimony, both the government and the defense issued subpoenas to Visa to testify at trial.³⁹39. Id. Visa elected to have Martin Elliott, its Global Head of Franchise Risk Management during the relevant period, perform that function.⁴⁰40. Id.

Unfortunately, Mr. Elliott was not an ideal candidate to travel to New York City (where the trial was taking place) in the middle of a global pandemic. He lived in California and did not want to fly to New York for fear of contracting COVID-19 during the necessary air travel.⁴¹41. Id. at 451–52. He was not yet vaccinated, nor were other members of his household.⁴²42. Id. at 451. He was 57-years-old and suffered from both hypertension and atrial fibrillation, both of which significantly raise the risks associated with COVID-19 infection.⁴³43. Id. at 451–52. He lived with his 55-year-old wife who also suffered from hypertension and his 83-year-old mother-in-law who faced significant COVID-related risks associated with her age.⁴⁴44. Id. at 451–52. Thus, his travel to and from New York would place himself and his co-residents in danger.

Over the defense’s objections, the court permitted Elliott to testify remotely.⁴⁵45. Id. at 456. In order to make the testimony as fair as possible, the court required Visa to ensure a high-quality video connection between the office and the courtroom.⁴⁶46. Id. The court ensured that Elliott could see the defendant, defense counsel, the questioning attorney, the judge, and the jurors, and that he could be seen by them in turn while testifying.⁴⁷47. Id. The court also permitted the defendants to send representatives to California to be present in person during the testimony if they so desired.⁴⁸48. Id.

Despite these procedures, however, the testimony quickly became awkward, as complicated conversations over Zoom so often do. Defense counsel later claimed that they had increased difficulty exercising witness control or pinning Elliott to yes or no answers because of video lag.⁴⁹49. Petition for Writ of Certiorari at 10–11, Akhavan v. United States, 143 S. Ct. 2639 (2023) (No. 22-844). There were several points when the witness’s screen froze, creating confusion and delays.⁵⁰50. Id. at 10. There were also multiple instances where Elliott had difficulty authenticating documents efficiently—or in one case, at all—because of the virtual format.⁵¹51. Id. at 9–10 (“Because a redacted portion of the exhibit was ultimately admitted into evidence only after Elliott testified, however, the defense was unable to ask him about it. And the court refused to allow the defense to recall Elliott in light of logistical impediments . . . .”).

B. The Second Circuit’s Legal Framework and Its Application

The purported permission for the modification of testimony that occurred in Patterson stems from the Supreme Court’s decision in Maryland v. Craig.⁵²52. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *11–13 (2d Cir. Dec. 21, 2022); Maryland v. Craig, 497 U.S. 836 (1990). There, the Court held that the right to face-to-face confrontation is not absolute.⁵³53. Craig, 497 U.S. at 844–50. In that case, the Court was faced with a situation in which a traumatized child victim of sexual assault had been permitted to testify in a separate room.⁵⁴54. Id. at 840–43. The attorneys for both sides had been present with the child to question her, and the jury and defendant were permitted to view the questioning via one-way, closed-circuit television.⁵⁵55. Id. at 841. The Court ruled that, in cases where one-way video testimony was “necessary to further an important public policy” and the reliability of the means of modified testimony was otherwise assured, such modification was permissible.⁵⁶56. Id. at 850.

The Second Circuit took the reasoning in Craig a step further in Gigante.⁵⁷57. United States v. Gigante, 166 F.3d 75, 80–81 (2d Cir. 1999). In Gigante, a testifying witness for the prosecution asked to testify using two-way, closed-circuit video because his doctors were afraid that travel to the courthouse from the location where he was currently in federal witness protection would put his health in serious jeopardy.⁵⁸58. Id. at 79. The Second Circuit rebalanced the interests and reasoned that, because the mechanism for testimony was not one-way video testimony but rather two-way video testimony which allowed interaction between the participants in the courtroom and the remote participants, less justification was needed for its use.⁵⁹59. Id. at 80–81. In particular, the court noted that two-way video preserved the giving of testimony under oath, the opportunity for live cross-examination, and the ability of the jury to observe demeanor.⁶⁰60. Id. at 80. Thus, the court dispensed with the Craig necessity standard for two-way video.⁶¹61. Id.

Instead, the court analogized the situation to a Rule 15 deposition.⁶²62. Id. at 81 (“A more profitable comparison can be made to the Rule 15 deposition . . . .”); Fed. R. Crim. P. 15(a)(1). Rule 15(a)(1) of the Federal Rules of Criminal Procedure provides that a “party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. . . . [I]t may also require the deponent to produce at the deposition any designated material that is not privileged . . . .” In general, the defendant has the right to be present or, at the very least to “meaningfully participate.” Fed. R. Crim. P. 15(c)(3)(E). The defendant always has the right to cross-examine the deposed witness in the same “scope and manner . . . as would be allowed during trial.” Fed. R. Crim. P. 15(e)(2). These depositions may then be admitted into evidence at trial subject to the Federal Rules of Evidence. Fed. R. Crim. P. 15(f). In both cases, the modified means of testimony preserves some of the essential features of confrontation (e.g., the oath and cross examination) but misses some of the finer points. Rule 15 depositions preserve the oath, the opportunity for cross-examination, and the ability of the defendant to be copresent with the witness, but eliminates the ability for the witness to be copresent with the jury, allowing the jury to observe their demeanor.⁶³63. See Gigante, 166 F.3d at 81 (explaining how Rule 15 would allow the admission of a transcript of a deposition and thereby preclude the jury from visually assessing witness demeanor). Two-way video preserves the oath, the opportunity for cross-examination, and the ability for the jury to observe demeanor evidence, but does not require the witness to come face-to-face with the defendant. The court in Gigante reasoned that the two forms of modified confrontation were similarly effective and that, if anything, two-way video confrontation was more reliable than a Rule 15 deposition because it preserved demeanor evidence (a historical touchstone of confrontation).⁶⁴64. Id.

Rule 15 depositions may be taken and preserved “because of exceptional circumstances and in the interest of justice.”⁶⁵65. Fed. R. Crim. P. 15(a)(1). And, when a witness subsequently becomes unavailable due to death, illness, privilege, or other qualifying condition, the transcript of the Rule 15 deposition may be used as substantive evidence at trial.⁶⁶66. Fed. R. Evid. 804(b)(1) (allowing former testimony by an unavailable witness as an exception to the rule against hearsay). The Gigante court reasoned that if it would have been permissible under the Confrontation Clause to have the witness take a Rule 15 deposition and to read that deposition into the record at trial, it must also be permissible to use two-way video testimony, which is relatively (in the court’s eyes) more reliable.⁶⁷67. Gigante, 166 F.3d at 81 (noting that two-way video testimony “may provide at least as great protection of confrontation rights as Rule 15”). Therefore, the court fashioned a new standard based on the standard for Rule 15 depositions. In the Second Circuit, “upon a finding of exceptional circumstances, . . . a trial court may allow a witness to testify via two-way closed-circuit television when this furthers the interest of justice.”⁶⁸68. Id.

Unsurprisingly, with circumstances so closely mirroring those in Gigante, the Second Circuit in Patterson upheld a finding that requiring Elliott to come to the Southern District of New York courthouse in the middle of a pandemic would put him at risk of “serious illness or death.”⁶⁹69. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *12 (2d Cir. Dec. 21, 2022) (upholding the district court’s finding of exceptional circumstances). Thus, the court concluded that the individualized dangers he was facing constituted the type of exceptional circumstances which made the witness unavailable to testify in an ordinary manner, just as the illness in Gigante did.⁷⁰70. Id. at *12–13. The use of two-way video was permissible.⁷¹71. Id. at *13.

II. A Widening Circuit Split

This permissive understanding of the Confrontation Clause has not been well-received by other jurisdictions. Therefore, while the Second Circuit abides by their Rule 15-based standard, the rest of the country has been divided over two other standards, one put forward by the Michigan Supreme Court and one used by the majority of other jurisdictions.

A. The Majority View

The majority of federal circuits and the majority of states simply continue to apply the Craig standard, rejecting requests to adopt the more lenient standard advocated by the Second Circuit.⁷²72. See, e.g., United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005) (applying the Craig standard to two-way video testimony); United States v. Carter, 907 F.3d 1199, 1202 (9th Cir. 2018) (same); United States v. Yates, 438 F.3d 1307, 1313 (11th Cir. 2006) (same); Harrell v. State, 709 So. 2d 1364, 1368–69 (Fla. 1998) (same); State v. Rogerson, 855 N.W.2d 495, 504 (Iowa 2014) (same); State v. Tate, 985 N.W.2d 291, 294 (Minn. 2023) (same). While two-way video may be a closer approximation of in-court testimony than one-way video, these courts note that it is, nonetheless, still an approximation.⁷³73. See Bordeaux, 400 F.3d at 554 (noting that the continued application of Craig is justified since two-way confrontation is a “virtual, and not real” approximation). It loses some of the intangible formality and ordeal of appearing in the courtroom and, therefore, may do less to impress upon the witness the importance of truth-telling.⁷⁴74. See id. (noting that two-way video does not provide the same “truth-inducing effect” as in-court testimony). It also places a level of abstraction between the defendant and the witness, even if the witness can see the image of the defendant. Courts worry that this abstraction will get in the way of the “say it to my face” effect produced by forcing the witness to say things while copresent with the defendant.⁷⁵75. See id. It is, therefore, not constitutionally equivalent to in-court testimony.⁷⁶76. See id.

These courts then read Craig as not merely setting out a standard for one-way video testimony.⁷⁷77. See Yates, 438 F.3d at 1314 (rejecting the argument that Craig does not apply to two-way video testimony). Rather, it sets forth a scrutiny standard that controls when the government can create exceptions to a defendant’s confrontation rights.⁷⁸78. See id. Because two-way video is an abridgement of the defendant’s confrontation rights, these courts reason, it must be held to the necessity standard.⁷⁹79. See id.

As for the argument that two-way video must be permissible because it is less disruptive to constitutional rights than Rule 15 depositions, majority courts point to the Supreme Court’s differentiation between two-way video and Rule 15 depositions. Rule 15 is an official rule of criminal procedure which has been approved by the Supreme Court.⁸⁰80. 28 U.S.C. § 2072; Fed. R. Crim. P. 15. Its allowance into the rules of procedure, majority courts suppose, is because of its “carefully-crafted provisions . . . that were designed to protect defendants’ rights to physical face-to-face confrontation” by allowing the defendant to be physically present at such a deposition.⁸¹81. See Yates, 438 F.3d at 1315.

Two-way video, on the other hand, is not envisioned in the “carefully-crafted provisions” of the rules of criminal procedure. Rather, its use would need to be authorized by the courts’ general authority to exercise control “over the mode and order of examining witnesses and presenting evidence” under Federal Rule of Evidence 611(a).⁸²82. Fed. R. Evid. 611(a) (“The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence . . . .”); cf. United States v. Yates, 438 F.3d 1307, 1314 (11th Cir. 2006) (rejecting the government’s argument that “admission of video testimony is within the inherent powers of trial courts”). Further, the absence of two-way video from the rules of criminal procedure is not an accident. In 2002, the advisory committee on the rules of procedure suggested an addition for video testimony to Rule 26, and this was explicitly rejected by the Supreme Court.⁸³83. Order of the Supreme Court, 207 F.R.D. 89, 93–96 (2002) (Scalia, J.). Justice Scalia explained that this rejection was because the proposed change was “contrary to the rule enunciated in Craig.”⁸⁴84. Id. at 93.

This differentiation, majority courts conclude, indicates that two-way video cannot be deemed equivalent to Rule 15 depositions.⁸⁵85. See Yates, 438 F.3d at 1314–15. Instead, the Supreme Court’s explanation suggests that, in individual cases, the correct standard is simply the Craig standard.⁸⁶86. See id. Thus, for the majority of courts, the standard for the use of two-way video testimony is the same as the standard for one-way video testimony: The use of modified testimony must be “necessary to further an important public policy” and the reliability of the means of modified testimony must be otherwise assured.⁸⁷87. See supra note 70 (collecting cases by majority courts that follow the Craig standard for two-way video testimony); Maryland v. Craig, 497 U.S. 836, 850 (1990).

B. The Michigan View

The Michigan view is even more protective of confrontation rights than the majority approach. It involves tracing the history of the Confrontation Clause back still further so as to reject even the Craig standard. When Craig was decided, the governing case on the meaning of the Confrontation Clause was Ohio v. Roberts.⁸⁸88. 448 U.S. 56 (1980). Roberts held that a statement from an unavailable witness could be admitted without traditional confrontation if it bears “particularized guarantees of trustworthiness.”⁸⁹89. Id. at 66. Under the Roberts standard, therefore, the right to confrontation was a substantive right to the reliability of witness testimony. Where that reliability could otherwise be guaranteed, confrontation was not necessary.⁹⁰90. Id. at 73. The Craig standard was based on an analysis of the reliability of one-way video.⁹¹91. Craig, 497 U.S. at 851–52. Because it was sufficiently reliable, the defendant’s interest in avoiding it was low and could be outweighed by public policy considerations.⁹²92. Id. at 851–853 (“[A] State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh . . . a defendant’s right to face his or her accusers in court”).

But, as the Michigan Supreme Court notes, there was another view of Confrontation already competing with the Roberts view at the time Craig was decided.⁹³93. See People v. Jemison, 505 Mich. 352, 361 (2020). In his dissenting opinion in Craig, Justice Scalia argued that the Confrontation Clause is not a substantive guarantee of reliability.⁹⁴94. Id. at 862 (Scalia, J., dissenting). It is a guarantee of specific procedures which assure reliability.⁹⁵95. Id. The fact that an alternative to those procedures is also reliable does not mean that it satisfies the constitutional guarantee of the traditional procedures.⁹⁶96. Id. at 863.

Since Craig, Scalia’s view has won over. In Crawford v. Washington, Justice Scalia wrote for the majority and put forward precisely the view described above.⁹⁷97. 541 U.S. 36 (2004). The Confrontation Clause is no longer about substantive reliability.⁹⁸98. Id. at 61. It is about adherence to the procedures demanded by the Framers.⁹⁹99. Id. (noting that the Confrontation Clause “is a procedural rather than a substantive guarantee”). This, the Michigan Supreme Court argues, means that Crawford cuts the legs out from under Craig.¹⁰⁰100. See People v. Jemison, 505 Mich. 352, 356 (2020) (“Crawford did not specifically overrule Craig, but it took out its legs.”). In overruling Roberts, they contend, the Court necessarily modified the proper reading of Roberts’s progeny.¹⁰¹101. Id. (noting that Crawford “overruled Roberts and shifted from a reliability focus to a bright-line rule” for in-person testimony). One can no longer balance the reliability of an alternative means of testimony against public policy, because substantive reliability is not the relevant standard.¹⁰²102. Id. at 361–62 (“[In Crawford], the Court shifted gears; balancing no longer had a role.”).

The Michigan Supreme Court acknowledged that it would be improper to hold that Crawford overruled Craig entirely, because the Supreme Court did not specifically state that it was doing so, and the Supreme Court does not overrule itself silently.¹⁰³103. Id. at 363 (citing Rodriguez de Quijas v. Shearson, 490 U.S. 477, 484 (1989) (noting that the Supreme Court does not silently overrule itself)). The Michigan Supreme Court, therefore, concluded that Craig should be confined to the specifics of its holding: Video testimony may be used to protect child victims of sexual assault when there is an individualized finding of necessity.¹⁰⁴104. Jemison, 505 Mich. at 365. Otherwise, the requirement of face-to-face, in court, testimony is sacrosanct and “may be dispensed with only when the witness is unavailable and the defendant had a prior chance to cross-examine the witness.”¹⁰⁵105. Id.

C. The Second Circuit Responds

In appealing the district court’s decision, the defendants in Patterson argued that the Second Circuit should adopt the Michigan view and reject Gigante.¹⁰⁶106. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *10–11 (2d Cir. Dec. 21, 2022). The Second Circuit declined to do so.¹⁰⁷107. Id. at *11. In addressing Michigan’s approach, the Second Circuit argued that Crawford didn’t undermine Craig or Gigante; it simply changed how they must be understood.¹⁰⁸108. Id. at *11–12. Craig and Gigante, the Second Circuit reasoned, stand for the proposition that the confrontation right can be partially abridged in the face of sufficient necessity.¹⁰⁹109. Id. at *11. As of the time of Craig and Gigante, this meant that the reliability of testimony could be slightly reduced by moving from in-person to one- or two-way video testimony, when the circumstances called for it. The Second Circuit argued that Crawford changed the understanding of what the right was that could be abridged, but it did not disturb the Craig–Gigante framework.¹¹⁰110. Id. at *11–12. Now, the procedures demanded by the Sixth Amendment can be slightly modified or abridged by moving from in-person to one- or two-way video testimony, when the circumstances call for it. Thus, there is no need to adopt Michigan’s standard.¹¹¹111. Id. at *11 (declining to adopt the argument that Crawford overruled Gigante).

Once the court in Patterson concluded that Gigante had not been overruled by Crawford, it was bound by that controlling Second Circuit precedent.¹¹²112. Id. As a result, the court has not squarely addressed the majority view.

III. Implications of the Second Circuit’s Divergent Standard

For a long time after Gigante was decided, its relaxed standard was used infrequently. Most commonly, it was used for situations in which a witness was a victim of child abuse or in which the witness’s physical presence could not be obtained because of extradition issues.¹¹³113. See, e.g., Jelinek v. Costello, 247 F. Supp. 2d 212, 277 (E.D.N.Y. 2003) (denying habeas relief for an alleged Confrontation Clause violation on the Gigante standard where the court permitted remote testimony from a victim of child abuse); United States v. Mostafa, 14 F. Supp. 3d 515, 524 (S.D.N.Y. 2014) (allowing video testimony from a witness detained in the United Kingdom who could not come to the United States without being detained in Massachusetts). In fact, in most Second Circuit cases predating the pandemic, there was an argument to be made that, despite the application of the looser Gigante standard, the Craig standard was also satisfied. Even in Gigante, the witness who testified remotely was ill enough that the court believed he would have suffered medical harm if he was forced to travel.¹¹⁴114. United States v. Gigante, 166 F.3d 75, 79 (2d Cir. 1999). While the court did not inquire into the specifics enough to formally make such a determination, it seems likely that the harm done by requiring a severely ill witness to travel might rank alongside the trauma experienced by a child witness forced to testify against their abuser. In fact, other circuits have held just that.¹¹⁵115. See, e.g., Horn v. Quarterman, 508 F.3d 306, 317 (5th Cir. 2007). Thus, the Gigante standard represented a formal difference between the Second Circuit and other courts, but, practically speaking, ended up admitting similar evidence.

But Patterson represents a group of COVID-era cases in which video testimony was used far more liberally in the Second Circuit.¹¹⁶116. Patterson, 2022 U.S. App. LEXIS 35264, at *12–13; see also United States v. Avenatti, No. 19-CR-374, 2022 U.S. Dist. LEXIS 5395, at *2–5 (S.D.N.Y. Jan. 11, 2022) (allowing a witness who was at “increased risk of serious illness or death if [s]he were to contract COVID-19” to testify remotely to avoid traveling during the Omicron variant surge); United States v. Calonge, No. 1:20-cr-523-GHW, 2021 U.S. Dist. LEXIS 142032, at *4 (S.D.N.Y. July 29, 2021) (allowing a witness with an undisclosed medical condition to testify remotely to avoid traveling during the pandemic); United States v. Donziger, No. 19-CR-561, 2020 U.S. Dist. LEXIS 148029, at *8–10 (S.D.N.Y. Aug. 17, 2020) (allowing an unvaccinated witness in his seventies to testify remotely during the height of the pandemic). The witnesses in these cases were not actually incapacitated. In some cases, they had already testified in person in recent court proceedings.¹¹⁷117. See, e.g., Avenatti, 2022 U.S. Dist. LEXIS 5395, at *4–5 (noting that the witness’s in-person testimony pre-pandemic did not affect the court’s analysis). In at least one case, the court admitted that it was possible to procure the witness’ in-person testimony.¹¹⁸118. See, e.g., id. at *4 (“To be sure, the Government has not proved that it would be impossible for [the witness] to appear in New York to testify.”). It was simply risky.

In this new collection of cases, an argument that the Craig standard would have been satisfied, if applied, becomes much more difficult. There was no guarantee of harm in these cases or even the high probability of harm present in Gigante. There was simply the possibility. There was no inquiry into whether alternative steps could be taken which would not necessitate two-way video. In none of these cases did the court consider an adjournment until such a time as the risk had passed or the witness could be vaccinated.¹¹⁹119. See, e.g., United States v. Donziger, No. 19-CR-561, 2020 U.S. Dist. LEXIS 197631, at *5–6 (S.D.N.Y. Oct. 23, 2020) (denying a request for an adjournment to prioritize in-person testimony). In Patterson, there wasn’t even an inquiry into whether Visa could provide a representative other than Elliott who could testify to the same facts. Elliott’s personal knowledge wasn’t case specific, so it seems highly plausible that there would have been someone else in a large corporation like Visa who could testify to the same policies and who would be able to get to a courthouse in New York.¹²⁰120. United States v. Akhavan, 523 F. Supp. 3d 443, 451 (S.D.N.Y. 2021) (noting Elliott’s testimony as Visa policy-focused and not specific to the issues of the case). But no such inquiry was made. Patterson represents the true meaning of Gigante: The bar for using video testimony in the Second Circuit has been lowered.

IV. Where Does the Second Circuit Go Now?

All of this invites the question: How far will the Second Circuit diverge from the rest of the country? The most natural niche for video testimony to expand into is the one currently held by Rule 15 depositions. Historically, Rule 15 depositions have been the solution when a witness cannot be present in court during trial.¹²¹121. Fed. R. Crim. P. 15. Most circuits hold that two-way video should not be permitted where a Rule 15 deposition could be used instead.¹²²122. See, e.g., United States v. Yates, 438 F.3d 1307, 1316 (11th Cir. 2006) (noting that the availability of a Rule 15 deposition showed lack of necessity under Craig). But that precedent relies on the Craig necessity standard—two-way video cannot be necessary where a Rule 15 deposition would suffice.¹²³123. Id. So, there is no reason to believe that the Second Circuit would follow those other circuits’ holdings. Indeed, if the Second Circuit takes seriously the claim that two-way video should be admissible on exactly the same standard as Rule 15 depositions, there is no reason that a district court in that circuit should prioritize one over the other on confrontation grounds.

Decisions like Patterson pave the way for a replacement of many Rule 15 depositions with video testimony. Indeed, arguably, Patterson was already such a replacement. In circuits which apply the Craig standard, Rule 15 depositions were used to procure the testimony of witnesses who were too medically fragile to travel to trial during the pandemic.¹²⁴124. See, e.g., United States v. Jesenik, No. 3:20-cr-228-SI, 2021 U.S. Dist. LEXIS 228993, at *4–7 (D. Or. Nov. 30, 2021). For example, a district court in the Ninth Circuit permitted the Rule 15 deposition of a witness who could not travel to court because he was 87 years-old and in a high-risk category for COVID-19.¹²⁵125. Id. In theory, the Second Circuit could have demanded the same thing in Patterson. But they did not; they used video as an alternative.

Using video-testimony instead of Rule 15 depositions certainly seems like an attractive option from a logistical and financial perspective. Rule 15 depositions generally require getting the witness together in the same room with attorneys from both sides and with the defendant.¹²⁶126. Fed. R. Crim. P. 15(c) (providing guidance for in-person depositions with and without the defendant’s presence). That can become complicated for any number of reasons. In particular, Rule 15 depositions are commonly used for obtaining the testimony of witnesses located outside the United States (and, therefore, outside the court’s subpoena power) who refuse to travel to testify or who have difficulty obtaining the necessary documents to do so.¹²⁷127. See, e.g., United States v. Sidona, 636 F.2d 792, 803–04 (2d Cir. 1980) (allowing Rule 15 depositions of witnesses who refused to travel to the United States and witnesses who were willing but had not timely procured the necessary travel documents). In order to take Rule 15 depositions for these witnesses, both parties must travel internationally.¹²⁸128. Fed. R. Crim. P. 15(c). Note an exception for the defendant’s presence in international depositions if certain criteria are satisfied under Fed. R. Crim. P. 15(c)(3). When the defendant is represented by court-appointed counsel or the government is the party seeking to procure the testimony, this often means that the United States government must pay for and make arrangements for the defendant and their counsel to travel internationally.¹²⁹129. Fed. R. Crim. P. 15(d) (noting the court may—and must, when the defendant is unable to pay—order the government to cover travel and deposition transcript expenses when the government requests the deposition). Video testimony is clearly a cheaper and easier option for the government. Because of these financial and logistical barriers, one might expect that, barring a legal impediment to such a move, video testimony would become the default in cases where a Rule 15 deposition would once have been used.

Such a move would represent a significant departure from the traditional uses of modified confrontation.¹³⁰130. See United States v. Gear, No. 17-00742, 2019 U.S. Dist. LEXIS 4011, at *1–2 (D. Haw. Jan. 9, 2019) (noting that video testimony is not a substitute for a Rule 15 deposition simply because a foreign witness is located abroad and refuses to travel to testify at trial under the Craig standard). And it is not clear that it would be a change for the better. Video testimony may be cheaper and easier to set up on short notice than other accommodations, but it also poses demonstrable risks to the reliability of trial testimony, as discussed above. Jurors just can’t evaluate it.¹³¹131. See supra notes 6–11 and accompanying text. By contrast, jurors are often better at evaluating purely written testimony, like Rule 15 depositions, than they are even at evaluating standard testimony.¹³²132. See Robert Fisher, The Demeanor Fallacy, 2014 N.Z. L. Rev. 575, 580 (2014) (citing an American commentator summarizing experimental evidence and concluding that “subjects who receive transcript consistently perform as well as or better than subjects who receive recordings of the respondent’s voice” (quoting Olin Guy Wellborn III, Demeanor, 76 Cornell L. Rev. 1075, 1088 (1991))). So, Patterson paves the way for a situation in which a tried and true, reliable form of modified testimony can be replaced with a form of modified testimony known to produce credibility problems. It will be up to the Second Circuit to ensure that we do not reach that point. But based on their current precedent, it is not at all clear that they will.

Conclusion

The Supreme Court admits that the standard for modified testimony has been an open question ever since they decided Crawford in 2006.¹³³133. See Wrotten v. New York, 560 U.S. 959, 960 (2010) (Sotomayor, J., denying certiorari) (“Because the use of video testimony in this case arose in a strikingly different context than in Craig, it is not clear that the latter is controlling.”). The pandemic and its promotion of video technology have made a resolution all the more pressing. Absent constitutional or statutory barriers, it seems likely that video testimony will seep into the court system as a means of solving logistical problems just as it has in every other aspect of our lives. The logical outcome of this seepage is that (again, absent constitutional or statutory barriers) the courts will continue to move in a more permissive direction with video testimony if left unchecked. The Second Circuit’s standard lowers constitutional barriers, and gives trial courts every opportunity to be permissive, particularly now that the Supreme Court has declined to step in and force them to change course.¹³⁴134. See Akhavan v. United States, 143 S. Ct. 2639 (2023) (denying certiorari). The Second Circuit may well become the wild west of video trials, allowing video testimony in many places where other circuits simply would not. It remains to be seen how far their increasingly lax standard will go.

In re Grand Jury

Ninth Circuit Offers Guidance on Privilege Test for Dual-Purpose Communications

Recent Case: In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021)

The Ninth Circuit Court of Appeals recently held that dual-purpose communications, or communications made with more than one purpose, must satisfy the “primary purpose” test in order for privilege properly to attach. Yet in 2014, the D.C. Circuit adopted a different test for dual purpose communications, asking whether “a”—not “the”—primary purpose of the communication is to give or receive legal advice. The Ninth Circuit did not explicitly reject the logic of the D.C. Circuit, and instead declined the opportunity to draw the precise contours of the privilege standard as applied to dual purpose communications. Looking forward, it is likely that other circuits may grapple with the proper inquiry for privilege and the logic of the D.C. Circuit’s standard.

Introduction

To what degree should attorney-client privilege protect dual-purpose communications? As businesses grow in size and complexity, their attorneys often serve as both lawyers and businesspersons. This phenomenon has given rise to dual-purpose communications, or communications with “more than one purpose.”³3. In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021) (referring to dual-purpose tax documents in United States v. Sanmina Corp., 968 F.3d 1107, 1118 (9th Cir. 2020)). These dual-purpose communications have proved slippery for courts to fit into existing privilege jurisprudence.⁴4. See, e.g., Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, Law of Lawyering 2022 Supplement § 10.07.8 (Wolters Kluwer 4th ed. 2021–22) (“One common problem that arises, most often when privilege claims are made by in-house counsel, is whether particular communications were made in connection with business rather than legal advice.”). The Ninth Circuit recently confronted an intra-circuit split on the proper standard for assessing privilege claims for dual-purpose communications. The court squarely rejected a broad test in favor of a narrower inquiry.⁵5. See In re Grand Jury, 23 F.4th at 1094 (“[W]e reject Appellants’ invitation to extend the ‘because of’ test to the attorney-client privilege context, and hold that the ‘primary purpose’ test applies to dual-purpose communications.”). Some district courts hewed to the more focused “primary purpose” test, which looked to the primary reason of a communication.⁶6. See id. at 1091 (“Under the ‘primary purpose’ test, courts look at whether the primary purpose of the document is to give or receive legal advice, as opposed to business or tax advice.”) (citing In re County of Erie, 473 F.3d 413, 420 (2d Cir. 2007)). Other district courts assessed claims of privilege under the broader “because of” standard, which inquired into the causal connection animating the creation of a document.⁷7. Id. at 1092. The “because of” test, which applies to the work product doctrine, “‘does not consider whether litigation was a primary or secondary motive behind the creation of a document.’ It instead ‘considers the totality of the circumstances and affords protection when it can fairly be said that the document was created because of anticipated litigation.’”⁸8. Id. (citation omitted). Thus, the “because of” inquiry is much broader than the primary purpose test.⁹9. Id.

The Ninth Circuit determined that the “primary purpose” test governs, underscoring the distinction between work product and attorney-client privilege.¹⁰10. Id. at 1092 (“We hold that the primary purpose test applies to attorney-client privilege claims for dual-purpose communications.”). In arriving at its conclusion, the court distinguished work product and attorney-client privilege in part by exploring the goals for which each privilege is tailored. It noted that “the work-product doctrine upholds the fairness of the adversarial process by allowing litigators to creatively develop legal theories and strategies—without their adversaries invoking the discovery process to pry into the litigators’ minds and free-ride off them.” Id. at 1093 (citing Allen v. Chi. Transit Auth., 198 F.R.D. 495, 500 (N.D. Ill. 2001)). On the other hand, attorney-client privilege is not meant to address the adversarial process but rather “encourages ‘full and frank communication between attorneys and their clients.’” Id. at 1093 (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). However, although the court rejected the “because of” test for attorney-client privilege, it punted on the precise standard¹¹11. The court declined the opportunity to adopt the “a primary standard” test for attorney-client privilege with respect to dual-purpose communications. As the court explained by reference to In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014), the “a primary purpose” test asks whether “obtaining or providing legal advice [was] a primary purpose of the communication, meaning one of the significant purposes of the communication?” Id. at 1094. The court therefore left “[o]pen [w]hether the ‘[a] [p]rimary [p]urpose [t]est [s]hould [a]pply.” Id. On the other hand, “the primary purpose” inquiry asks the court to identify the “‘predominant’ purpose” of the communication. Id. to assess dual-purpose communications—leaving businesses in the dark as to which documents may properly be withheld under a privilege assertion.

I. Background

Attorney-client privilege protects certain communications between a client and her lawyer—specifically, communications in which the client seeks legal advice—from compelled disclosure in the course of litigation.¹²12. See, e.g., United States v. Samnina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020) (“The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.”) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)); Hazard, Hodes, & Jarvis, supra note 2, § 10.07.8 (“In order for attorney-client privilege to apply, the communication between attorney and client (or their respective representatives), must be in aid of the attorney’s provision of legal advice to the client—it must be about a legal matter, in other words.”). In federal courts, Rule 501 of the Federal Rules of Evidence¹³13. Rule 501 requires that common law determines assertions of privilege unless the U.S. Constitution, a federal statute, or rules promulgated by the Supreme Court dictate otherwise. See Fed. R. Evid. 501. However, “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Id. cognizes the privilege that was developed under federal common law.¹⁴14. Ellen S. Pogdor & Jerold H. Israel, White Collar Crime in a Nutshell 387 (4th ed. 2009). In the Ninth Circuit, the attorney-client privilege is articulated by a functionally equivalent “eight-part test: (1) Where legal advice . . . is sought (2) from a professional legal advisor . . . , (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are . . . protected (7) from disclosure . . . , (8) unless the protection be waived.” Sanmina Corp., 968 F.3d at 1116 (citing United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010)). In order to invoke the privilege successfully and shield a communication from disclosure, one generally must demonstrate: “(1) a communication, (2) that was made by the client to a lawyer, (3) that was made in confidence, and (4) that was made for the purpose of obtaining professional legal advice (or services relating thereto).”¹⁵15. Pogdor & Israel, supra note 12, at 389. Generally, those communications that satisfy all four elements may be withheld from compelled disclosure on the ground that the privilege cloaks the communications in protection.¹⁶16. See id. at 389–90 (noting that the privilege “block[s] the disclosure of the protected communications . . .”).

On the other hand, work product privilege protects disclosure of documents prepared by an attorney in “anticipation of litigation.”¹⁷17. See id. at 426. Originally articulated in the seminal Supreme Court case Hickman v. Taylor,¹⁸18. 329 U.S. 495 (1947). work product privilege trains attorneys’ and the court’s perspective on the attorney’s actions in the face of litigation (or the threat of litigation).¹⁹19. See Pogdor & Israel, supra note 12, at 427–29 (establishing Hickman standards and describing Federal Rule 26(b)(3) as having “substantially incorporated” these standards). Today, Rule 26(b)(3) of the Federal Rules of Civil Procedure also sets the standard for work product privilege.²⁰20. See id. at 430 (describing how Rule 26(b)(3) incorporates Hickman and “sets forth a standard as to the showing needed to overcome work product protection”). See also Fed. R. Civ. Proc. 26(b)(3)(A) (“Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative . . . .”).

Attorney-client and work product privilege are distinct privileges justified on distinct grounds and focused on distinct inquiries.²¹21. See supra note 8 (noting distinct goals toward which attorney-client and work product privilege are respectively tailored). In most instances, these doctrines are straightforward to apply. However, a communication created by an attorney with more than one purpose in mind—a so-called dual-purpose communication—implicates thorny issues. These dual-purpose communications are often made by an attorney “wear[ing] dual hats, serving as both lawyer and a trusted business advisor.”²²22. In re Grand Jury, 23 F.4th 1088, 1090 (9th Cir. 2021). Consequently, dual-purpose communications have grown more relevant over the years, in light of the “increasingly complex regulatory landscape”²³23. Id. implicating the services of attorneys who may offer both legal and business advice.

The tax context, for instance, is rife with opportunities for privilege issues relating to dual-purpose communications.²⁴24. “[S]ome communications might have more than one purpose, especially ‘in the tax law context, where an attorney’s advice may integrally involve both legal and non-legal analyses.’” Id. at 1091 (citing Sanmina Corp., 968 F.3d 1107, 1118 (9th Cir. 2020)). These issues in the tax context emerge because corporations may consult attorneys for myriad advice, and although there is an attorney-client privilege, there is no “accountant-client” privilege.²⁵25. In contrast, “normal tax return preparation assistance—even coming from lawyers—is generally not privileged, and courts should be careful to not accidentially create an accountant’s privilege where none is supposed to exist.” Id. at 1095 n.5. Thus, courts must ensure that documents withheld from disclosure on ground of privilege meet the requirements for attorney-client privilege. As the In re Grand Jury court noted, “attorney-client privilege might apply to legal advice about what to claim on a tax return, even if it does not apply to the numbers themselves.”²⁶26. Id. at 1092 n.2. However, privilege protects only certain communications; it will not apply to run-of-the-mill tax information relayed from client to attorney or memorialized by the attorney as part of standard tax practice.²⁷27. Id. at 1091 (“Generally, communications related to an attorney’s preparation of tax returns are not covered by attorney-client privilege. So, for example, ‘a client may communicate the figures from his W-2 form to an attorney while litigation is in progress, but this information certainly is not privileged.’” (quoting United States v. Abrahams, 905 F.2d 1276, 1283–84 (9th Cir. 1990), rev’d on other grounds by United States v. Jose, 131 F.3d 1325 (9th Cir. 1997)) (citing Olender v. United States, 210 F.2d 795, 806 (9th Cir. 1954)). In the context of standard tax information, there would be no valid claim of privilege as justification for withholding the communications.²⁸28. Id. Courts have not articulated a standard for assessing privilege claims of dual-purpose communications.²⁹29. See id. at 1090 (“Our court, however, has yet to articulate a consistent standard for determining when the attorney-client privilege applies to dual-purpose communications that implicate both legal and business concerns.”).

A. Facts Underlying the Recent Ninth Circuit Decision

In In re Grand Jury, a California federal grand jury sought information relating to the owner of a company, who was the target of a criminal investigation.³⁰30. See id. at 1090–91 (describing background facts giving rise to privilege assertion). Seeking specific communications, the grand jury issued subpoenas to the appellants: the individual’s company and law firm. The appellants complied with some of the requests but refused to produce certain requested tax-related documents citing work product and attorney-client privilege.³¹31. See id. When the district court granted in part the government’s motion to compel production,³²32. In granting the government’s motion to compel production, “the district court explained that these documents were either not protected by any privilege or were discoverable under the crime-fraud exception.” Id. at 1090. Discussion of the crime-fraud exception and its bearing on the issues in In re Grand Jury is beyond the scope of this piece. The Ninth Circuit disposed of the assertion of the crime-fraud exception “in a concurrently filed, sealed memorandum disposition.” Id. at 1090 n.1. the appellants continued to assert both privileges and refused to produce the withheld documents. The refusal ultimately landed the appellants in contempt, prompting the appeal to decide the appropriate standard for assessing attorney-client privilege with respect to dual-purpose communications.³³33. See id. at 1091 (noting findings of contempt and appellants’ appeal). The court focused on the standard for attorney-client privilege for dual-purpose documents. Work product asks whether the document was created in anticipation of litigation and often relies on the “because of” test explored infra note 41, and it does not protect documents where there has been a showing of “substantial need” by the adversary. Thus, because work product privilege applies to documents created in the face of litigation, work product privilege for dual-purpose communications is uninteresting. Fed. R. Civ. Proc. 26(b)(3). The Ninth Circuit granted the motion.³⁴34. See id. (granting appeal under 28 U.S.C. § 1291).

A year earlier, the Ninth Circuit declined an opportunity to decide this question. In United States v. Sanmina Corp. & Subsidiaries,³⁵35. 968 F.3d 1107 (9th Cir. 2020). the court heard a dispute concerning privilege claims with respect to dual-purpose tax communications.³⁶36. See id. at 1118–19, 1118 n.5 (describing the communications as “dual purpose” and weighing possible proper standards). The Sanmina court chronicled the intra-circuit split on the question of the proper test to apply,³⁷37. See id. at 1118 n.5 (illustrating the Ninth Circuit intra-circuit split by pointing to four district courts which applied the “primary purpose” test and two other courts which applied the “because of” test in an attorney-client privilege claim). but it ultimately declined to resolve the split given that the facts of the case did not demand a clear standard.³⁸38. See id. at 1118–19 (“Notwithstanding this intra-circuit split, however, we need not decide the issue on the facts of this case.”). However, the open question once again materialized before the court on appeal in In re Grand Jury.

On appeal in In re Grand Jury, the government argued in favor of the “primary purpose” test to narrow the privilege rule, which would promote greater opportunities for compelled disclosure. As the Ninth Circuit explained: “Under the ‘primary purpose’ test, courts look at whether the primary purpose of the communication is to give or receive legal advice, as opposed to business or tax advice. . . . The natural implication of this inquiry is that a dual-purpose communication can only have a single ‘primary’ purpose.”³⁹39. In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021). In fact, the government sought to narrow substantially the protection offered by decrees of privilege, “suggest[ing] that dual-purpose communications in the tax advice context can never be privileged.”⁴⁰40. Id. at 1092 n.2 (emphasis added). However, the court disposed of this contention in a footnote as inapposite with Ninth Circuit case law, citing to a case in which the Ninth Circuit neither resoundingly accepted the privilege claim of a dual-purpose tax advice communication nor rejected the possibility outright that privilege may apply under certain circumstances.⁴¹41. See id. (determining that relevant case law does not support the government’s contention that dual-purpose tax-related documents are never privileged) (citing United States v. Abrahams, 905 F.2d 1276, 1284 (9th Cir. 1990), rev’d on other grounds by United States v. Jose, 131 F.3d 1325 (9th Cir. 1997)). But while the court rejected the government’s argument that tax-related dual-purpose communications can never be privileged, the court endorsed the government’s “primary purpose” argument, holding that the primary purpose test governs. ⁴²42. See id. at 1092.

On the other hand, the appellants sought adoption of the broadest possible privilege standard—the “because of” test traditionally applied to work product privilege.⁴³43. See id. at 1093 (setting forth appellants’ argument). The “because of” test proposed by appellants:

does not consider whether litigation was a primary or secondary motive behind the creation of a document. It instead considers the totality of the circumstances and affords protection when it can fairly be said that the document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of that litigation.⁴⁴44. Id. at 1091–92 (emphasis added) (internal quotation marks omitted).

However, the Ninth Circuit declined to adopt the “because of” test, finding unpersuasive appellants’ arguments to use the work product “because of” test for whether attorney-client privilege applies for dual-purpose communications.⁴⁵45. See id. at 1093 (“Appellants assert . . . that we should . . . borrow the test from the work-product doctrine when a communication has a dual purpose . . . . But . . . [a]ppellants offer no persuasive reason to abandon the common-law rule [with respect to privilege claims for dual-purpose communications.]”). Specifically, the court proceeded in three steps. First, the court concluded that the dispute was governed by the applicable attorney-client privilege standard for dual-purpose communications—not work product.⁴⁶46. Id. at 1091 (finding that the attorney-client privilege is the only privilege applicable in this case). Second, the court rejected the “because of” test for attorney-client privilege and held that the primary purpose standard is the proper test.⁴⁷47. See id. at 1094. Third, the court explored the D.C. Circuit’s Kellogg test but ultimately declined the opportunity to endorse that standard.⁴⁸48. See id. For a discussion of the D.C. Circuit’s Kellog test, see infra Section I.C. Thus, in rejecting the “because of” test and affirming the lower court’s finding of contempt, the court explained that attorney-client privilege focused on “the purpose of the communication, not its relation to anticipated litigation,”⁴⁹49. Id. at 1093. thereby underscoring the distinction between work product and attorney-client privilege.

B. Rationale of the Ninth Circuit’s Decision

The Ninth Circuit correctly homes in on the distinction between attorney-client and work product privilege. The two privileges, although complementary, serve distinct purposes and trace distinct historical developments along separate threads of the common law. The court explains the goal of work product privilege as preservation of “a zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries.”⁵⁰50. Id. (citing United States v. Adlman, 134 F.3d 1194, 1196 (2d. Cir. 1998)). On the other hand, the sanctity of the relationship between a client and her attorney animates the attorney-client privilege.⁵¹51. Id. (stating that the attorney-client privilege is concerned with “providing a sanctuary for candid communication about any legal matter, not just impending litigation.”). In fact, “the attorney-client privilege encourages ‘full and frank communication between attorneys and their clients and thereby promote[s] broader public interests in the observance of law and administration of justice.’”⁵²52. Id. (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).

The Ninth Circuit, however, did not tether its rationale only to the importance of maintaining a clear demarcation between two privileges imported and developed from common law. It also considered the practical realities. In explaining its holding that the work product “because of” standard does not govern attorney-client privilege disputes, the Ninth Circuit considered the incentive structure for attorneys and firms that would inevitably develop in reaction to adoption of a “because of” standard governing attorney-client privilege assertions involving dual-purpose communications. The court explained that the “because of” test, if applied to attorney-client privilege, “would create perverse incentives for companies to add layers of lawyers to every business decision in hopes of insulating themselves from scrutiny in any future litigation,”⁵³53. Id. Privilege standards powerfully influence the manner in which organizations choose to conduct business, and organizations react to incentive structures. For instance, in March 2022, the Department of Justice moved to compel Google, LLC, to disclose certain documents alleged to have been improperly cloaked in attorney-client privilege through the inclusion of attorneys on run-of-the-mill business matters. See generally Plaintiffs’ Motion to Sanction Google and Compel Disclosure of Documents Unjustifiably Claimed by Google as Attorney-Client Privileged, United States v. Google, LLC, No. 1:20-cv-03010 (filed Mar. 21, 2022), https://www.abajournal.com/files/US_v._Google_3_.21.22_sanctions_motion_.pdf [https://perma.cc/47GU-ZPCJ]. and it expressed concern that applying the test in the attorney-client privilege context “might harm our adversarial system if parties try to withhold key documents as privileged by claiming that they were created ‘because of’ litigation concerns.”⁵⁴54. In re Grand Jury, 23 F.4th at 1093.

Finally, the panel considered the governing standard in other circuits for assertions of attorney-client privilege of dual-purpose communications. Of those which have confronted the issue, sister circuits generally have declined to import the “because of” standard into attorney-client privilege inquiries for dual-purpose communications.⁵⁵55. See id. at 1094 (“[M]ost, if not all, of our sister circuits that have addressed this issue have opted for some version of the ‘primary purpose’ test instead of the ‘because of’ test.”). However, while the Ninth Circuit merely rejected the “because of” standard and left open the exact contours of the primary purpose test, the D.C. Circuit has provided more granular guidance.⁵⁶56. See generally In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014).

**C. The D.C. Circuit’s Kellogg Test**

Nearly a decade ago, the D.C. Circuit set forth its “a primary purpose” standard.⁵⁷57. See id. at 759–60 (describing “a primary purpose test” and its justification). Confronted with a privilege dispute centered on whether certain documents produced by attorneys in the course of an internal investigation for a defense contractor constituted “legal advice”⁵⁸58. Id. at 756. or “unprivileged business records,”⁵⁹59. Id. the district court reviewed the disputed documents in camera⁶⁰60. In camera review refers to nonpublic “examination of materials.” See, e.g., In Camera Definition, Law Insider, https://www.lawinsider.com/dictionary/in-camera-review [https://perma.cc/TF4N-G3G6] (last accessed June 13, 2022). and “determined that the attorney-client privilege protection did not apply because . . . [the defendant] had not shown that ‘the communication would not have been made ‘but for’ the fact that legal advice was sought.’”⁶¹61. Kellogg, 756 F.3d at 756. The defendant maintained its privilege claim over the dual-purpose communications and sought mandamus relief at the D.C. Circuit.⁶²62. The D.C. Circuit court heard this mandamus petition—an interlocutory order—because “the District Court’s privilege ruling constituted legal error” and also was an “error of the kind that justifies mandamus” under 28 U.S.C. § 1651. Id. at 756–57. As the court explained, “[m]andamus is a ‘drastic and extraordinary’ remedy ‘reserved for really extraordinary causes.’” Id. at 760 (quoting Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367, 380 (2004)).

In an opinion penned by then-Judge Kavanaugh, the Kellogg court found that the district court had applied an incorrect standard—the “but for” test—in its determination that the defendant may not withhold the documents under a claim of attorney-client privilege.⁶³63. See id. at 759 (noting the District Court correctly set forth the “primary purpose” test, but “then said that the primary purpose of a communication is to obtain or provide legal advice only if the communication would not have been made ‘but for’ the fact that legal advice was sought”). The district court correctly cited the primary purpose test but erroneously described the test as a “but-for” inquiry.⁶⁴64. See id. (noting that the lower court started its privilege inquiry “by reciting the ‘primary purpose’ test [for dual-purpose communications] . . . . [T]he District Court then said that the primary purpose of a communication is to obtain or provide legal advice only if the communication would not have been made ‘but for’ the fact that legal advice was sought”). The Circuit Court rejected the District Court’s application of the primary purpose test⁶⁵65. See id. (noting the lower court’s error in asking the “but-for” inquiry to apply the primary purpose test). and took the opportunity to clarify precisely the proper standard:

[T]rying to find the one primary purpose for a communication motivated by two sometimes overlapping purposes (one legal and one business, for example) can be an inherently impossible task. It is often not useful or even feasible to try to determine whether the purpose was A or B when the purpose was A and B. It is thus not correct for a court to presume that a communication can have only one primary purpose. It is likewise not correct for a court to try to find the one primary purpose in cases where a given communication plainly has multiple purposes.⁶⁶66. Id. at 759–60 (second emphasis added).

Thus, the Kellogg court soundly rejected “the primary purpose” standard as the appropriate test in questions of attorney-client privilege claims for dual-purpose communications. Instead, the D.C. Circuit explained that the following inquiry governs: “Was obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication?”⁶⁷67. Id. at 760.

Despite careful treatment of the issue and a seemingly unambiguous standard offered by the Kellogg court, commentators remain skeptical of Kellogg’s legacy: “[W]hether Kellogg represents a broad and significant development in attorney-client privilege remains to be seen.”⁶⁸68. Hazard, Hodes, & Jarvis, supra note 2, § 10–07.08. Although the D.C. Circuit decided Kellogg eight years ago, no other circuit has yet adopted the “a primary purpose” standard. Id. Circuits may continue to narrow Kellogg to its facts, as the Ninth Circuit did by distinguishing tax-related dual-purpose communications from those communications created as part of an internal investigation. In re Grand Jury, 23 F.4th 1088, 1094–95 (9th Cir. 2021) On the other hand, the Kellogg “a primary purpose test” standard has gained traction in a handful of district courts.⁶⁹69. See, e.g., In re Grand Jury, 23 F.4th at 1095 n.4 (listing cases, e.g., in the Southern District of New York, the District of Maryland, and the Eastern District of Michigan, as instances in which the Kellogg test was adopted). And the D.C. Circuit continues to apply this standard in its assessment of attorney-client privilege for dual-purpose communications.⁷⁰70. See, e.g., FTC v. Boehringer Ingelheim Pharms., Inc., 892 F.3d 1264, 1267–68 (D.C. Cir. 2018) (applying the Kellogg test to a dual-purpose communication, asking “whether obtaining or providing legal advice was one of the significant purposes of the communications at issue,” and, upon an affirmative finding, holding that the documents were protected by attorney-client privilege).

The Ninth Circuit declined the opportunity to adopt the Kellogg test—despite appellants’ arguments in In re Grand Jury: Appellants argued in the alternative that, should the court decline to adopt the “because of” test, the Kellogg “a primary purpose” test should govern.”⁷¹71. See In re Grand Jury, 23 F.4th, at 1094. The Ninth Circuit side-stepped the issue.⁷²72. The court in a section header noted, “We Leave Open Whether the ‘A Primary Purpose Test’ Should Apply.” See id. Later decisions have endorsed the idea that the In re Grand Jury court avoided the issue. See, e.g., Meta Platforms v. Brandtotal Ltd., No. 20-cv-07182, 2022, U.S. Dist. LEXIS 4820, at *4–5 (N.D. Cal. Jan. 10, 2022) (noting that for dual-purpose communications, “the Ninth Circuit has declined to resolve whether legal advice must be ‘the primary purpose’ or merely ‘a primary purpose’”). See also supra notes 60–65 and accompanying text. Although the court recognized the “merits of the reasoning in Kellogg” and indicated that it may be inclined to adopt the Kellogg test in a future dispute, it declined “to adopt or apply the Kellogg formulation of the primary-purpose test here.”⁷³73. In re Grand Jury, 23 F.4th at 1094–95. Implying that the context in which dual-purpose communications are created is a dimension of the court’s focus, the Ninth Circuit distinguished Kellogg on the ground that it was formulated in light of corporate internal investigations, not tax-related documents as in In re Grand Jury.⁷⁴74. See id. (“We also recognize that Kellogg dealt with the very specific context of corporate internal investigations, and its reasoning does not apply with equal force in the tax context.”). The Ninth Circuit may have sought to find a way to confine Kellogg to its facts in order to avoid the more corporate-friendly “a primary purpose” test for attorney-client privilege for dual-purpose communications. On the other hand, internal investigations are often an element of a corporate compliance program, and perhaps both the In re Grand Jury and the Kellogg court sought not to undermine future compliance efforts, and therefore treat differently on the margins dual-purpose communications generated in a corporate compliance-centered context.

II. Implications of the Ruling

Where does this holding leave law firms and business organizations? Although the In re Grand Jury court did not endorse the more corporate-friendly “a primary purpose” standard, those firms and organizations subject to the Ninth Circuit’s jurisdiction will benefit from the clear rejection of the “because of” test in the context of attorney-client privilege for dual-purpose communications.

In any event, both in-house and outside counsel should consider taking steps to designate the purpose for which documents meant to protect attorney-client privilege are created to inoculate against potential future document requests. As some commentators have suggested:

Regardless of how the purpose line is drawn by a court in any particular case, . . . attorneys and their clients may be able to influence—although perhaps not wholly control—the availability of the privilege by creating a record indicating why communications are occurring, or by segregating communications in aid of legal advice from those involving non-legal advice.⁷⁵75. Hazard, Hodes, & Jarvis, supra note 2.

Thus, critical examination by attorneys of existing processes may be warranted to protect client interests.

In re Grand Jury has implications beyond the tax-law context. District courts in the Ninth Circuit already have relied on In re Grand Jury in order to determine the validity of assertions of privilege in other contexts. In an employment discrimination dispute, a magistrate judge for the District of Oregon conducted an in camera review of two email documents withheld by defendants on grounds of attorney-client privilege.⁷⁶76. See Walker v. Shangri-La Corp., No. 6:20-cv-01577, 2022 U.S. Dist. LEXIS 16293, at *4 (D. Or. Jan. 28, 2022). Applying the “primary purpose test” as set forth in In re Grand Jury,⁷⁷77. See id. at *3–4 (applying the In re Grand Jury formulation of the “primary purpose” standard). the magistrate determined that “the primary purpose of the communication was to receive legal advice from an attorney employed with reference to that attorney’s knowledge and discretion in the law”⁷⁸78. Id. at *4. and concluded the documents were properly withheld on ground of attorney-client privilege.⁷⁹79. See id. (finding upon application of the primary purpose test that “any discoverable content in the two e-mail documents is protected from disclosure under the attorney-client privilege”).

Interestingly, and perhaps hinting at the degree to which the recent decision clarified the proper standard for assessment of privilege claims, at least one district court in the Ninth Circuit cited to In re Grand Jury for its explication of the “because of” standard in the work product context.⁸⁰80. Discovery Land Co. LLC v. Berkley Ins. Co., No. CV-20-01541-PHX, 2022 U.S. Dist. LEXIS 11604 (D. Ariz. Jan. 21, 2022). It is possible that the Arizona District Court misconstrued In re Grand Jury, given that it did not cite to the “primary purpose” standard as set forth in In re Grand Jury in its treatment of attorney-client privilege in the same decision. There, and unlike the In re Grand Jury court, the Arizona District Court faced a straightforward, single-purpose communication allegedly protected by work product privilege. The Arizona District Court framed the “because of” standard as an emanation of the In re Grand Jury decision, and the court applied this test to the communication in question to find that contested documents were protected by work product privilege.⁸¹81. See id. at *15–16 (“To determine whether a document qualifies for protection under the work-product protection, the Ninth Circuit has adopted a broad ‘because of’ test.” (citing In re Grand Jury, 23 F.4th 1095 (9th Cir. 2021))).

It remains possible that the Ninth Circuit will adopt the Kellogg test in a future dispute for which the difference between “a primary purpose” and “the primary purpose” carries weight. But the In re Grand Jury court explained that it was not obligated to consider the Kellogg test fully “[b]ecause the district court did not clearly err in finding that the predominate purpose of the disputed communications was not to obtain legal advice, [and therefore] they do not fall within the narrow universe where the Kellogg test would change the outcome of the privilege analysis.”⁸²82. In re Grand Jury, 23 F.4th 1088, 1095 (9th Cir. 2021). In other words, the Ninth Circuit was not “persuaded that the facts here require us to reach the Kellogg question.”⁸³83. Id. at 1094. In fact, the court signaled its openness to adopting the Kellogg test—at least under circumstances closely mirroring those present in Kellogg, and for litigants for whom the difference in privilege application between “a primary purpose” and “the primary purpose” is meaningful.⁸⁴84. Id. at 1094–95 (noting that the Kellogg test “would save courts the trouble of having to identify a predominate purpose among two (or more) potentially equal purposes,” and explaining that “the universe of documents in which the Kellogg test would make a difference is limited”). Compounding the potential for a future dispute to force the Ninth Circuit to rule decisively on the issue, district courts in the circuit continue to acknowledge that the precise standard remains an open question.⁸⁵85. See, e.g., Meta Platforms v. Brandtotal Ltd., No. 20-cv-07182, 2022 U.S. Dist. LEXIS 4820, at *4–5 (N.D. Cal. Jan. 10, 2022) (“If a communication serves more than one purpose, the Ninth Circuit has declined to resolve whether legal advice must be ‘the primary purpose’ or merely ‘a primary purpose.’”); Walker v. Shangri-La Corp., No. 6:20-cv-01577, 2022 U.S. Dist. LEXIS 16293, at *3 (noting that the In re Grand Jury court “declined to resolve whether its primary purpose test requires legal advice to ‘be the primary purpose or merely a primary purpose’”).

However, although a dispute in which a party argues in favor of the Kellogg standard likely will emerge in the Ninth Circuit, whether the Ninth Circuit will adopt the test remains murky. The Kellogg “a primary purpose” test has failed to gain traction since its 2014 promulgation, suggesting that sister circuits may be reluctant to embrace the broader Kellogg standard for attorney-client privilege for dual-purpose communications.⁸⁶86. See, e.g., In re Grand Jury, 23 F.4th at 1094 n.3 (citing Alomari v. Ohio Dep’t of Pub. Safety, 626 F. App’x 558, 572–73 (6th Cir. 2015)) (applying the primary purpose test and not mentioning Kellogg). Moreover, many state courts have expressly endorsed “the primary purpose” standard.⁸⁷87. See, e.g., In re Polaris, Inc, 967 N.W.2d 397, 408 n.1 (Minn. 2021) (citing cases from other state courts in support) (“Because we apply the attorney-client privilege narrowly, we agree with the overwhelming majority of state courts that have adopted the predominant purpose test and conclude that legal advice must be the primary purpose of the communication.”). And the Ninth Circuit’s incremental rulings in the space of dual-purpose communications hint at a reluctance to embrace fully the Kellogg test.⁸⁸88. See, e.g., United States v. Sanmina Corp., 968 F.3d 1107, 1118–19 (9th Cir. 2020) (declining to decide the issue of proper standard in dual-purpose communications context); In re Grand Jury, 23 F.4th at 1094 (declining at this time to decide whether to embrace the Kellogg test). Thus, given general reluctance by courts to adopt the “a primary purpose” standard, Kellogg remains an outlier. Courts may be motivated to retain the primary purpose standard in order to avoid a corporate-friendly approach to attorney-client privilege. Moreover, as noted, the role of a compliance program may have cut in favor of the business organization in Kellogg in a way that does not easily extend to other contexts.

Conclusion

The Ninth Circuit’s In re Grand Jury holding clarified the intra-circuit split left open by the court a year prior in its Sanmina opinion. The In re Grand Jury court expressly rejected importing the “because of” standard from the work product context into the assessment of claims of attorney-client privilege for dual-purpose communications. Instead, the Ninth Circuit asserted that the “primary purpose” test governs. But questions still linger as to the precise test that may be applied in future disputes. In the case of a dual-purpose document formed with two equal purposes, what standard will apply? Will the Ninth Circuit ultimately join the D.C. Circuit in adopting the Kellogg “a primary purpose” framework? Or instead, will the court reject Kellogg explicitly, or implicitly by choosing to characterize one of the purposes as “the primary purpose”? The court’s signaling in In re Grand Jury—and the lower courts’ amplification—of the existing open issue of adoption of the Kellogg test could not be clearer. The Ninth Circuit will likely confront this issue once again and have another opportunity to clarify its stance on the Kellogg test.

Form, Substance, and Rule 23: The Applicability of the Federal Rules of Evidence to Class Certification

Madeleine M. Xu

Rule 23 of the Federal Rules of Civil Procedure governs the standards for certifying a class action, a type of litigation whose aggregate form is intended to make litigation accessible to large groups of injured plaintiffs and incentivize the vindication of claims that may otherwise go unpursued in the face of high litigation costs. However, while due process requires that a certifying court find that each element of Rule 23 is satisfied through “evidentiary proof,” the federal courts have failed to adopt any kind of consistent evidentiary standard to apply to the record proffered at class certification. This has resulted in the use of class certification as a bargaining chip between plaintiffs’ lawyers and wealthy defendants, rather than as a procedural mechanism that serves to test the propriety of a particular action for class treatment. Ultimately, this dynamic harms the very injured plaintiffs that this mechanism seeks to protect. This Note examines the need for a uniform evidentiary standard and surveys the countervailing interests of absent class members, defendants, class counsel, and the court at this critical juncture in a class action proceeding. It then proposes a novel categorization of the Federal Rules of Evidence as either form- or substance-based, and argues that an evidentiary standard that properly balances the interests of all parties involved in the class action requires a certifying court to apply substance-based evidence rules in determining whether a proposed class satisfies Rule 23. Such a rule, this Note will argue, is essential to ensuring that absent class members are protected, rather than exploited, by the class action mechanism.

Unraveling Williams v. Illinois

Edward K. Cheng, Cara C. Mannion

This Essay addresses one of the key evidentiary problems facing courts today: the treatment of forensic reports under the Confrontation Clause. Forensics are a staple of modern criminal trials, yet what restrictions the Confrontation Clause places on forensic reports is entirely unclear. The Supreme Court’s latest decision on the issue, Williams v. Illinois, sowed widespread confusion among lower courts and commentators, and during the 2018 Term, Justices Gorsuch and Kagan dissented to the denial of certiorari in Stuart v. Alabama, a case that would have revisited (and hopefully clarified) Williams.

Our Essay dispels the confusion in Williams v. Illinois. We argue that Williams involved three difficult and intertwined evidentiary questions: i) when experts may use inadmissible evidence as the basis of their opinions under Rule 703; ii) whether Rule 703 itself is consistent with the Confrontation Clause; and iii) whether reports that arise out of rigorous scientific processes implicate the Confrontation Clause at all. Along the way, we show that the answers to these questions help predict the future of the Confrontation Clause and offer a potential tool for improving forensic science.

The Talking Dead: Should Decedents’ Statements Fall Under Rule 801(d)(2)(A)?

Matthew W. Tieman

There is a circuit split as to whether a decedent’s statements can be entered into evidence under the exclusion from hearsay provided for party-opponent statements under Federal Rule of Evidence 801(d)(2)(A). The courts disagree as to the best characterization of decedents’ statements—whether they should be understood as privity-based admissions that, while admissible under the common law, are no longer admissible under the Federal Rules of Evidence, or if the decedent should be considered a party to the litigation, in which case the statements are admissible under Rule 801(d)(2)(A). This Note first discusses the circuit split by explaining the concept of privity-based admissions, conducting a statutory interpretation of the Federal Rules to determine if the enactment of the rules abrogated the common law admissibility of privity-based admissions, and analyzing whether it is appropriate for a decedent to be considered a party to the litigation. The Note then discusses policy reasons for a rule favoring exclusion—namely, the concerns about perjury and ensuring equitable treatment of the estate that gave rise to states’ Dead Man’s acts, and the fact that there may be other rules under which to admit the evidence. The Note concludes that a rule favoring admissibility is preferable because the claims would not be in front of the court but for the decedent, and a rule favoring admissibility will lead to more consistent outcomes.

The Costs of Waiver: Cost-Benefit Analysis as a New Basis for Selective Waiver of Attorney-Client Privilege

Mathew S. Miller

The nature of corporate criminal liability and the extreme consequences of indictment or conviction place great pressure on corporations to cooperate with federal prosecutors as they investigate corporate wrongdoing. This pressure often leads corporations to disclose privileged corporate communications, including internal investigation reports and notes from employee interviews, to aid prosecutors in their investigation. In most jurisdictions, once these documents are disclosed, the protections of the attorney-client privilege are waived as to everyone—a total waiver. However, in a minority of jurisdictions, when privileged corporate communications are disclosed to the government as part of a criminal investigation, the privilege is waived only as to the government and remains to prevent discovery by third parties, including civil plaintiffs—a selective waiver. Courts have provided various rationales for both positions, although none has been universally endorsed and all are subject to criticism. This Note provides a new justification for the selective waiver rule. It argues that utility-maximizing prosecutors will be more likely to ask for these critical privileged corporate communications under a selective waiver rule because of the high costs of the total waiver rule. This, in turn, will lead to a more efficient and robust investigation and prosecution of corporate crime.

Brady Materiality Before Trial: The Scope of the Duty to Disclose and the Right to a Trial by Jury

Christopher Deal

Brady v. Maryland requires prosecutors to disclose to criminal defendants all material, favorable evidence in the government’s possession. Evidence is material if its disclosure would have created a reasonable probability of a different verdict. Though materiality may correctly guide appellate courts in deciding when to reverse convictions, the author contends that it is both impractical and unconstitutional to ask prosecutors to use materiality as the measure of their disclosure obligations before trial. It is impractical because it requires prosecutors convinced of the defendant’s guilt to decide what combination of evidence, if disclosed, would create a reasonable probability of an acquittal at the end of a trial that has yet to begin. It is unconstitutional so long as due process means something other than that which produces the right outcome. This Note suggests that prosecutors should employ a balancing test based on the interaction of Brady disclosure rules and the defendant’s right to a trial by jury to determine when favorable evidence must be disclosed. This balancing test provides prosecutors with a disclosure standard that is simple, constitutional, and compatible with courts’ continued use of the materiality standard after trial.

The First Amendment as Criminal Procedure

Daniel J. Solove

This Article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other despite the fact that many instances of government information gathering can implicate First Amendment freedoms of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case Boyd v. United States, in which the Supreme Court held that the government was prohibited from seizing a person’s private papers. Over time, however, Fourth and Fifth Amendment protection has shifted, and countless searches and seizures involving people’s private papers, the books they read, the websites they surf, and the pen names they use when writing anonymously now fall completely outside the protection of constitutional criminal procedure. Professor Solove argues that the First Amendment should protect against government information gathering that implicates First Amendment interests. He contends that there are doctrinal, historical, and normative justifications for developing what he calls “First Amendment criminal procedure.” Solove sets forth an approach for determining when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide.

Overcoming Daubert’s Shortcomings in Criminal Trials: Making the Error Rate the Primary Factor in Daubert’s Validity Inquiry

Munia Jabbar

Daubert v. Merrell Dow Pharmaceuticals, Inc. and its progeny provide the federal standard for the admissibility of all expert evidence, including forensic evidence, that is proffered in criminal trials. The standard measures the validity of expert evidence through a flexible four-factor inquiry. Unfortunately, in the criminal context, Daubert fails to promote the goals of trial outcome accuracy and consistency, resulting in tragically unfair outcomes for criminal defendants. This Note proposes a doctrinal tweak that shifts the costs of admitting forensic evidence to the prosecution and promotes criminal justice goals. First, there should be a high presumption against the admission of forensic evidence that must be rebutted with a clear and convincing showing of its validity. Second, the Daubert validity inquiry needs to be reformulated so that the forensic methodology’s “error rate” factor is the primary (and if possible, only) factor the court considers. Third, the error rate should be defined as the lab-specific error rate. The Note ends by considering further possible ways to specify the definition of “error rate” to better promote criminal justice goals.

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Topics

Evidence

Results

Introduction

I. Background

A. The Situation at Trial

B. The Second Circuit’s Legal Framework and Its Application

II. A Widening Circuit Split

A. The Majority View

B. The Michigan View

C. The Second Circuit Responds

III. Implications of the Second Circuit’s Divergent Standard

IV. Where Does the Second Circuit Go Now?

Conclusion

Introduction

I. Background

A. Facts Underlying the Recent Ninth Circuit Decision

B. Rationale of the Ninth Circuit’s Decision

C. The D.C. Circuit’s Kellogg Test

II. Implications of the Ruling

Conclusion

Edward K. Cheng, Cara C. Mannion

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**C. The D.C. Circuit’s Kellogg Test**