Part I
Attorney-client privilege protection depends on content, and some work product claims also depend in part on content. Because a litigant's privilege log obviously does not disclose withheld documents' content, the adversary often seeks the court's in camera review of those withheld documents.
Courts disagree about the standard for undertaking such in camera reviews. In Wisk Aero LLC v. Archer Aviation Inc., the court articulated the majority view (citing a Ninth Circuit case): "the decision whether to conduct the [in camera] review rests within the discretion of the district court." Case No. 21-cv-02450-WHO (DMR), 2022 U.S. Dist. LEXIS 202429, at *4-5 (N.D. Cal. Nov. 7, 2022) (citation omitted). Two days later, the court in Akerman LLP v. Cohen articulated the rare minority view — noting that "[f]or over thirty years," the court has held that before being required to turn over withheld documents a litigant "is entitled to an in camera review of the documents by the trial court." Nos. 4D22-553 & 4D22-556, 2022 Fla. App. LEXIS 7611, *19-20 (Fla. Dist. Ct. App. Nov. 9, 2022) (citation omitted).
Lawyers on both sides of this issue must check the tribunal's approach. Part II will address in camera reviews' process, and their unstated downside.
Part II
Part I described courts' various standards for their in camera review of withheld documents. The vast majority recognizes the trial court's discretion, but some courts always conduct an in camera review before ordering production of withheld documents.
A few days after the decisions summarized in last week's Privilege Point, the court in Adams v. Hanover Foods Corp. described its in camera review's conclusion, which highlights why many courts conduct such reviews: "Our review of the emails — where the defendants assert a privilege demonstrates that they consist mainly of business communications and not requests for legal advice or legal assistance to the defendant." Civ. A. No. 1:21-cv-00909, 2022 U.S Dist. LEXIS 210101, at *5 (M.D. Pa. Nov. 18, 2022). Such conclusions should remind lawyers to train their clients and discipline themselves to make sure that any legitimately privileged communications reflect clients' requests for legal advice and lawyers' responsive legal advice.
Presumably because it would tie up judicial resources in nearly every court, the same judge overseeing the litigation ordinarily conducts the in camera review. In a perfect world, another judge would do that. So litigants should remember that even if they win a privilege dispute, the judge hearing their case will have read the documents — so litigants and their lawyers should always be careful what they write.
Published February 6, 2023.
