Must Courts Always Conduct In Camera Reviews To Assess Privilege Claims?

July 17, 2019

Because attorney-client privilege protection generally depends on content, most courts read withheld documents in camera to assess that content. But states disagree about whether courts must always conduct such in camera reviews.

In Dominguez v. Citizens Property Insurance Corp., a Florida court bluntly held that “[t]he trial court erred by ordering the production of these documents without first conducting an in camera review of the documents responsive to this request to determine whether the attorney-client privilege applied.” 269 So. 3d 623, 626 (Fla. Dist. Ct. App. 2019). Most states and courts do not require in camera reviews, but instead recognize courts’ discretion. One court declined to review documents in camera, citing one consideration that some courts seem to overlook. 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) (holding 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.”).

As in all process questions like this, corporations and their lawyers addressing in camera reviews should know the law, court rules and even the presiding judge’s inclinations.