Litigants hoping to protect communications or documents with the attorney-client privilege or the work-product doctrine obviously must convince the court that the materials deserve protection. Such litigants may want to rely on other, obviously protected, documents to support their claim. However, not all courts allow such a tactic.
In Seibu Corp. v. KPMG LLP, No. 3-00-CV-1639-X, 2002 U.S. Dist. LEXIS 906 (N.D. Tex. Jan. 18, 2002), the Court refused to even consider documents submitted in camera by KPMG, which was attempting to bolster an attorney-client privilege and work-product doctrine claim of protection for other documents. The court derisively labeled KPMG’s in camera submission “an improper ex parte communication with the Court.” Id. at *4 n.3.
Before submitting any materials in camera during a privilege fight, litigants should determine if the court will consider those materials.