January 25, 2023
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. Next week's Privilege Point will address in camera reviews' process, and their unstated downside.