This Littler Lightbulb highlights some recent labor and employment law developments at the U.S. Supreme Court and federal courts of appeal.

• At the Supreme Court. On October 3, the Justices agreed to hear In re Grand Jury, another significant case that may impact employers. At issue is the standard that governs the attorney-client privilege in “dual-purpose” communications, which are communications made for the purpose of both legal and nonlegal advice. This case could have an effect on the attorney-client privilege as to communications made in internal investigations and the standard attorneys should use in conducting the same in the future.

The appellate courts are split on the standard that applies. In the case before the Supreme Court, the Ninth Circuit joined the Second and Fifth Circuits in adopting the “primary purpose” test. Under that test, it is up to the court to determine whether the primary purpose of the communication is to provide legal advice. If it is, the attorney-client privilege protects the communication from disclosure. If not, the communication is not protected by the privilege.

Notably, Justice Brett Kavanaugh rejected the primary purpose test when he was a judge on the U.S. Court of Appeals for the D.C. Circuit. In a 2014 D.C. Circuit Court decision, he stated that if just one of the significant purposes of an attorney-client communication is to obtain or provide legal advice, the privilege applies. Though the differences between the two...

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