“The Ninth Circuit’s rule will have a chilling effect on companies’ communications with their in-house and outside counsel.”
—John Masslon, WLF Senior Litigation Counsel
WASHINGTON, DC—Today the U.S. Supreme Court agreed to hear an appeal from an order requiring a law firm to hand over privileged documents. The grant of certiorari was a victory for Washington Legal Foundation (WLF), which filed an amicus brief urging the Court to hear the case.
WLF’s brief argued that the Ninth Circuit’s rule will have a chilling effect on internal investigations. Rather than foster robust internal-investigation procedures, the Ninth Circuit’s rule will encourage companies to undertake perfunctory investigations so as to not risk waiving the attorney-client privilege. Companies will also be more hesitant to hire outside counsel.
Even if the ruling applies only in tax cases, WLF’s brief showed why such “tax exceptionalism” is still problematic. And WLF’s brief argued that the Court should grant review to ensure uniformity in the federal rules. The Ninth Circuit’s decision split from other circuits on the interpretation of Federal Rule of Civil Procedure 26 and Federal Rule of Evidence 501. As the Ninth Circuit’s decision also ignored Federal Rule of Civil Procedure 1, the Court properly granted the petition.
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