An Appellate Court Chastises a Lower Court for not Conducting an in Camera Review

July 7, 2004

Privilege reviews are hard work, so it is not surprising that many courts (like some lawyers) want to avoid them. However, in some cases, the task cannot be avoided.

In State ex rel. Westfield Insurance Co. v. Madden, No. 31579, 2004 W. Va. LEXIS 9 (W. Va. Feb 27, 2004), a trial court found that an insurance company had asserted an unfounded privilege claim – and ordered the company to produce all of its files as a discovery sanction. The West Virginia Supreme Court granted a writ of prohibition, and directed the trial court to hold an in camera review of the insurance company’s privilege log, in order to “make an independent determination of the privilege status of each document.” Id. at *16. The Supreme Court suggested that the trial court could appoint a Special Master to undertake the task.

Lawyers should take some comfort in knowing that courts generally cannot “short circuit” the privilege analysis process – and should be relieved to know that courts also dislike the hard work that a privilege review entails.