Lower courts probably dread the possibility of having to review hundreds of arguably privileged documents in camera. However, some courts are too quick to concoct a shortcut.
In American National Bank & Trust Co. v. Equitable Life Assurance Society of the U.S., 406 F.3d 867, 870 n.1 (7th Cir. 2005), a magistrate judge told defendant Equitable that “I’m not going to allow somebody to put me in a position where I am going to be reading documents in camera.” Rather than appoint a special master, the magistrate judge sua sponte allowed the plaintiff to select 20 documents from Equitable’s privilege log for his in camera review – indicating that if he found 4 or more of the 20 to contain non‑privileged materials he would require Equitable to disclose all 432 documents on the log. He found 4 non-privileged documents, but refused to order the other privileged documents produced. When the plaintiff reminded the magistrate judge of the original ruling, he took a recess, announced that he had found a fifth non-privileged document and ordered all of the privileged documents produced. Surprisingly, the district court did not reverse the magistrate judge. Not surprisingly, the Seventh Circuit reversed.
Corporate litigants sometimes find themselves frustrated by lower courts’ approach to privilege reviews.