Confirmation hearings are unlikely to focus on Judge Kavanaugh's privilege opinions, but in the process of revising my casebook I re-read Kellog v. Brown & Root, Inc., 756 F.3d 754 (D.C. Cir 2014), which holds that "[i]n the context of an organization's internal investigation, if one of the significant purposes of the internal investigation was to obtain or provide legal advice, the privilege will apply. That is true regardless of whether an internal investigation was conducted pursuant to a company compliance program required by statute or regulation, or was otherwise conducted pursuant to company policy."
The premise of this ruling is that there need not be a single "primary purpose" for a communication. "[T]he primary purpose test, sensibly and properly applied, cannot and does not draw a rigid distinction between a legal purpose on the one hand and a business purpose on the other. After all, trying 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. Rather, it is clearer, more precise, and more predictable to articulate the test as follows: Was obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication?"
Judge Kavanaugh applied these principles again last month in Fed. Trade Comm'n v. Boehringer Ingelheim Pharm., Inc., 892 F.3d 1264, 1266 (D.C. Cir. 2018).
For what it is worth (and, as I say, I doubt his privilege opinions will be the focus of impending debates), these propositions strike me as sound. Lawyers help clients solve problems, and problems commonly have both business and legal aspects. As a consequence, both in internal investigations and in general, communications often have multiple purposes. A corporate client may view the "primary" purpose of even an explicitly legal communication as being to achieve a "business" resolution. Setting aside internal investigations, much civil litigation could be characterized that way. It should not follow that the communications are not privileged.
The primary purpose test may serve to weed out privilege claims in cases where a lawyer is brought in to a business discussion just to provide legal cover, or when a person with a law license engages in purely business communications. That is an important role, but one that seems to me to be adequately served by asking whether there was a "significant" legal aspect to the communications.