Should the Judge Hearing a Case Also Review Arguably Privileged Documents in Camera?

December 21, 2005

Courts everywhere recognize that some privilege determinations may require an in camera review. Remarkably, many judges handling a case undertake this job themselves – despite the obvious possibility of prejudice if they read documents ultimately determined to be privileged.

In United States v. Velazquez, 141 Fed. App’x 526 (9th Cir. 2005), the Ninth Circuit addressed a district court’s handling of a motion by the criminal defendant’s lawyer to withdraw. Among other things, the Ninth Circuit noted with praise that “the district court insured that the judge presiding over Velazquez’s criminal case did not hear any privileged communications.” Id. at 527. Although arising in a different setting from a situation that might involve an in camera review, the same logic should apply in such a context.

Having a different judge (or magistrate, special master, etc.) conduct the in camera review makes sense, and would deter litigants from seeking an in camera review of all of their adversary’s allegedly privileged documents – in an effort to “poison the well” with the judge who will be hearing the case.