Litigants Should Not Count on a Court’s In Camera Review of Documents Claimed to be Privileged

June 7, 2006

Many privilege fights end with the court examining the pertinent documents in camera. However, some courts use their discretion to avoid such a burdensome and tedious task.

In United Investors Life Insurance Co. v. Nationwide Life Insurance Co., 233 F.R.D. 483, 486 (N.D. Miss. 2006), the court declined to conduct an in camera review of what could have been thousands of documents ‑‑ indicating that such a review “would constitute a great and unnecessary expenditure of judicial resources.” The court instead ordered the defendants to supplement their privilege log, “so that the court and the plaintiff are able to ‘test the merits’ within the four corners of the privilege log itself.” Id.

Litigants should not assume that a privilege dispute will necessarily result in a court reviewing documents in camera ‑‑ courts’ justifiable reluctance to conduct in camera reviews should prompt lawyers to polish their privilege logs.