(CN) — The Supreme Court kicked off its new term Monday by agreeing to hear nine new cases centered on issues ranging from attorney-client privilege to labor union disputes.
Aside from the notable decision to hear a pair of cases against tech companies over extremist content published on their platforms, the court also granted certiorari in seven other cases.
One of those cases involves attorney-client privilege and was brought by an unnamed law firm that was served with grand jury subpoenas seeking documents related to a criminal investigation of a client. These requested documents related to tax return preparation materials and communications regarding attorney advice on the tax consequences of the client's anticipated expatriation from the U.S.
While attorney-client privilege generally allows for legal advice to be confidentially provided and obtained between attorneys and their clients, the circuit courts are divided on how to properly determine when a communication made for multiple purposes – some legal and some illegal – is privileged.
In this case, known only as In Re Grand Jury, the Ninth Circuit applied the so-called primary purpose test to analyze which of these purposes is most significant, but the law firm argues this was the wrong approach and that the appeals court should have granted its petition for a rehearing due to the inconclusive precedent on the matter.
The firm also argues the primary purpose test imposes a heavy burden on district court judges by directing them to balance the competing legal and nonlegal motivations behind communications and will lead to incongruent rulings.
"Even when it is possible to disentangle the legal from non-legal motivations behind a communication, weighing those competing purposes to determine their relative significance is an artificial and unworkable exercise." attorney Evan Davis wrote in the firm's petition to the Supreme Court.
The law firm ask the justices to provide clear guidelines to resolve this conflict between the courts, which they argue not only hinders commutations between attorneys and their clients, but "creates intolerable uncertainty" in privilege determinations.
Another petition granted by the justices involves a labor union representing drivers for a concrete company, whose strike resulted in concrete being left to harden in the mixing drums of several loaded trucks that were never delivered.
After the concrete company, Glacier Northwest, filed a state tort claim for intentional property damages, a judge in Washington state held that the actions of the International Brotherhood of Teamsters Local Union were protected under the National Labor Relations Act.
But the Washington Court of Appeals disagreed and ruled that the act doesn't protect workers who fail to take reasonable precautions to prevent the destruction of an employer’s products before engaging in a work stoppage, noting that the union ordered the drivers to wait until the concrete was loaded into the trucks before stopping work.
That ruling was reversed by the Washington Supreme Court, which reinstated the trial court’s dismissal of the suit and granted protection to the union, whose destruction of concrete the court viewed as a “legitimate bargaining tactic.”
Glacier argues that because this decision conflicts with those from other high state and federal appeals courts, the Supreme Court must clarify whether the NLRA protects unions from liability in claims for intentional property destruction during labor disputes.
"If allowed to stand, it will not only put private property at the mercy of deliberate sabotage, but will also cast the NLRA into serious constitutional doubt by inviting the destruction of employers’ property rights while leaving them with no means of just compensation," wrote the company's attorney Noel Francisco in their petition.
Another case now in the Justices' hands also involves a union that represents dual-status technicians in Ohio’s Army and Air National Guards who filed unfair labor practice complaints with the Federal Labor Relations Authority.
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