Do Not Forget the Consequences of Judges’ Role in Assessing Privilege Protection

May 22, 2024

In both the federal and state judicial systems, judges assess privilege and work product protection claims — sometimes coordinating with judges at other levels. But there is a lurking unspoken risk that some lawyers may overlook.

In Consumer Financial Protection Bureau v. Carnes, Case No. 23-cv-2151-DDC-TJJ, 2024 U.S. Dist. LEXIS 69442 (D. Kan. Apr. 10, 2024), a magistrate judge considered whether to stay her order requiring production of allegedly privileged documents until the district court could resolve the defendant’s objections to her rulings. After acknowledging that neither the federal rules nor the District of Kansas rules provided “specific criteria” in that setting, the magistrate judge understandably granted the stay. Id. at *3-4.

Although no court seems to have acknowledged it, in a perfect world a judge other than the trial judge would assess privilege claims. Presumably, logistical difficulties preclude such an arguably more appropriate process. Lawyers should remind their clients that even if the trial judge upholds a privilege claim after an in camera review, that judge will have read the document — so clients and their lawyers should carefully craft even communications that are clearly worthy of privilege protection.