Litigants and even some lawyers occasionally forget how courts address attorney-client privilege (and sometimes work product protection) assertions. Privilege protection focuses primarily on a communication's content — whether it was primarily motivated by the client's request for, or by the lawyer's provision of, legal advice. Work product protection focuses mostly on context, but withheld documents' content might also be pertinent. So in many if not most cases, a judge or her designee must read the withheld documents' content. What is the standard for such an in camera review?
In J.M. v. Major, Case No. 6:18-cv-00739-YY, 2022 U.S. Dist. LEXIS 75583 (D. Or. Apr. 26, 2022), the court upheld a magistrate judge's exercise of her discretion not to conduct an in camera review. The court noted that the magistrate judge "found that reviewing 146 emails that Plaintiffs ha[d] designated would be overly cumbersome," and that the likelihood was "low" that such an "in camera review would reveal relevant evidence or show the crime-fraud exception applies." Id. at *8. In most courts, such a review is entirely within the court's discretion.
Because lawyers normally will not know if the court will exercise its discretion to undertake an in camera review, they should be ready for one. They should therefore train their clients to explicitly articulate requests for legal advice, and respond to clients' emails that might be troublesome — demonstrating a dialogue that increases the odds of privilege protection. And lawyers should remind their clients that even if they win a privilege fight, the judge handling their case will have read the intimate privileged documents.