Two business groups have joined Apple’s fight against Epic Games, filing an amicus brief that challenges a ruling on attorney-client privilege. The Association of Corporate Counsel and TechNet argue the decision by U.S. District Judge Yvonne Gonzalez Rogers threatens how companies use in-house lawyers. They warn it risks blurring the line between legal and business advice in fast-moving industries.
In April, Judge Rogers ordered Apple to comply with her 2021 App Store injunction and rejected its attempt to shield records. She ruled that adding a lawyer’s name to a document does not create privilege. The court pointed to email chains where Apple included attorneys to label business discussions as privileged.
One example involved in-house counsel Jennifer Brown asking colleagues to change a slide’s label from “Prepared at the Request of Counsel” to “Prepared at the Request of External Counsel.” Rogers said such tactics showed Apple overused privilege claims.
In-House Counsel
The amicus brief warns that the ruling could discourage companies from consulting their in-house teams. “Companies will be forced into a kind of blind compliance if they can’t rely on in-house attorneys to help them navigate,” said Drew Hudson, vice president and general counsel at TechNet, in comments to Bloomberg Law. He argued that without in-house guidance, businesses may resort to internet searches or guesswork, increasing compliance risks and litigation exposure.
Smaller firms face the greatest burden. Unlike large corporations, they cannot afford to hire outside counsel for everyday issues. The brief stresses that in-house lawyers are essential for survival, especially when budgets are tight.
Primary Purpose Standard
Attorneys also say the ruling conflicts with the Ninth Circuit’s “primary purpose” test. That standard protects communications when legal advice is a key purpose, even if the discussion includes business topics. “This is a case where legal jurists live in their own world. It’s not pragmatic and doesn’t align with the reality of the job,” said Will Chuang, associate general counsel at Relyance AI.
Heather Stevenson, general counsel at Red Cell Partners, noted that outside lawyers cannot match the depth of in-house counsel in complex industries. Paul Swegle, chief legal officer at Molecular Testing, criticized the idea that companies must pay thousands of dollars an hour for outside advice just to preserve privilege.
Susanna McDonald, chief legal officer at the Association of Corporate Counsel, said only the Supreme Court can resolve conflicting standards across circuits. Until then, she urged attorneys to make clear when their advice is legal and not business-related.
Oral arguments in Epic Games, Inc. v. Apple Inc. are scheduled for Oct. 21 in the Ninth Circuit.
