Kavanaugh Opinion Protects Internal Corporate Communications

By Lawrence S. EbnerNovember 7, 2018

Last Spring, shortly before being nominated to the Supreme Court, D.C. Circuit Judge Brett Kavanaugh issued an opinion that protects the confidentiality of internal communications between company employees and in-house attorneys.  His opinion in Federal Trade Commission v. Boehringer Ingelheim Pharmaceuticals, Inc., 892 F.3d 1264 (2018), holds that the attorney-client privilege applies to an internal corporate communication to or from in-house counsel even if it serves a business purpose — as long as obtaining or providing legal advice also was a significant purpose of the communication.  My  article, In-House Counsel “Multi-Purpose” Communications Shielded from FTC Probe, which appears in the Fall 2018 edition of DRI’s In-House Defense Quarterly magazine, discusses now-Justice Kavanuagh’s lucid opinion in greater detail.