SCOTUS Backs Off On A Privilege Case, Leaving A Major Cyber Risk Question Unresolved

In a rarely invoked procedural move, two weeks after hearing oral arguments in a case involving attorney-client privilege, the Court decided to dismiss the case as “improvidently granted.” At issue in In re Grand Jury, a tax case, was whether or not documents deemed “dual-purpose” – that is, they include both legal advice and non-legal business advice – could be protected. As explained in a post from the ABA Journal, the Ninth Circuit court that heard the case tried to cut a distinction between documents whose “primary purpose” was giving legal advice and those where the provision of legal advice was a “significant” purpose. Apparently the Court concluded that was too fine a distinction to merit consideration. “What is the disagreement?” Justice Neil Gorsuch asked during oral arguments.

Also reporting on this story, briefly, was the Washington Post, which noted that it was Justice Kagen who said there was less to this case than meets the eye. She is said to have asked a lawyer at one point to comment on “the ancient legal principle, if it ain’t broke, don’t fix it.”

The customary acronym for this rare SCOTUS move is a DIG, which stands for “dismissed as improvidently granted.” An old post from the On the Law blog (promising to avoid puns if at all possible) discusses DIGs at some length. The writer suggests they have become less common largely because the Court has reduced the number of cases it accepts, which presumably means it spends more time making that initial decision and therefore is less likely to feel the need to second guess itself later on.

The distinction between “primary” and “significant” in this case may have been too fine to parse, but according to an article in Bloomberg Law, the fact the Court decided to punt was a disappointment to many attorneys who were hoping get some clarity with regard to a vexing question that arises in the context of a security breach: How much of what is revealed in the context of an internal investigation can remain privileged?