Do Courts Always Review Withheld Documents In Camera Before Making Privilege or Work Product Rulings?

March 19, 2014

Litigants’ disputes about withheld and logged privileged or work product-protected documents sometimes end with a court reviewing the documents in camera. However, courts take varying approaches to this process.

In the case discussed in last week’s Privilege Point, the court reviewed in camera “five, large, three-ring binders, measuring some 13 inches in height, and containing 5,108 pages.” Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779, at *67 (N.D. Ill. Jan. 6, 2014). In contrast, another court concluded three days later that an “in camera review would be inappropriate” – because it “would consume considerable Court resources” and “increases the harm to [defendant] from having a third-party, even if it is the Court, comb through its privileged communications.” King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. No. 2:06-cv-1797, 2014 U.S. Dist. LEXIS 2344, at *22, *23 (E.D. Pa. Jan. 9, 2014). In a decision the day before, the Southern District of New York noted that it had conducted an in camera review, stating that “[w]hether or not a document is privileged is fact specific and frequently requires in camera review.” Vector Capital Corp v. Ness Techs., Inc., No. 11 Civ. 6259 (PKC), 2014 U.S. Dist. LEXIS 7694, at *4 (S.D.N.Y. Jan. 8, 2014). A couple of weeks later, a Florida court granted a petition for writ of certiorari, agreeing with the petitioner that the “trial court departed from the essential requirements of the law resulting in irreparable injury by ordering production of documents . . . without conducting an in camera inspection.” RC/PB, Inc. v. Ritz-Carlton Hotel Co., No. 4D13-2116, 2014 Fla. App. LEXIS 579, at *1 (Fla. Dist. Ct. App. Jan. 22, 2014).

In camera reviews can sometimes help a court distinguish between legal and business advice, or undertake other content-driven analyses. But an in camera review usually does not help analyze issues such as those involving waivers – which focus on extrinsic events rather than on the withheld documents’ content.