If the court overseeing a privilege or work product dispute cannot determine a protection’s applicability from the privilege log or some other facts, the judge normally must arrange for an in camera review of the documents themselves. It might make sense to have another judge (or a special master) review the documents, to avoid the judge hearing the case becoming tainted with documents the judge might ultimately determine should never have been disclosed outside the attorney-client relationship.
Some courts take that approach, but others take the opposite approach. In State ex rel. Marshall County Commission v. Carter, No. 35272, 2010 W. Va. LEXIS 4, at *16 (W. Va. Jan. 29, 2010), a litigant argued that an administrative law judge should not conduct an in camera privilege review, because he or she “may be improperly influenced in [his or her] fact finding by knowledge of privileged material that is inadmissible at a hearing.” The West Virginia Supreme Court rejected that argument, noting that circuit court judges and administrative law judges “regularly” consider evidence “which is ultimately determined to be inadmissible.” Id. at *17.
That approach does not seem to adequately address the significant societal purpose of the attorney-client privilege – which is to prevent any third parties from learning the substance of protected communications, not just prevent public disclosure at trial.