Courts’ In Camera Reviews Do Not Always Help Resolve Privilege Issues

May 27, 2009

Many practitioners assume that courts analyzing privilege claims might ultimately have to conduct an in camera review to resolve those claims. However, in many situations an in camera review provides no assistance.

In Johnson v. Couturier, Nos. CIV S-05-2046 RRB GGH & S-08-2732 RRB GGH, 2009 U.S. Dist. LEXIS 22656, at *8 (E.D. Cal. Mar. 10, 2009), the court explained what seems obvious upon a moment’s reflection: “A review of documents in camera can at times reveal whether a privilege would exist on the face of the documents alone, but the documents by themselves, unless smoking guns, generally reveal little about the existence or lack thereof of the privilege because the purported attorney was acting in a business capacity, or a fiduciary duty exists which prevents privileged status, or the crime-fraud exception applies.” The court might also have mentioned another factor that generally cannot be determined by an in camera review — whether any protection was waived by the documents’ disclosure to third parties.

Litigants should not assume that a court’s in camera review will answer all questions about privilege or work product protection, and should expect to support or challenge any protection claim with other evidence.