Because litigants frequently take an aggressive approach when withholding documents on privilege grounds, courts’ in camera reviews often result in a loss for them. But sometimes courts agree with a litigant’s privilege calls.
In Doe v. Princeton University, the plaintiff suing Princeton alleged that the university improperly withheld documents it generated during an investigation of “intimate partner violence.” Civ. A. No. 20-4352 (MAS) (RLS), 2025 U.S. Dist. LEXIS 19969, at *2 (D.N.J. Feb. 4, 2025). The court upheld Princeton’s privilege claims, explaining that: (1) merely copying a lawyer on an email does not make it privileged, but the privilege applied when “counsel was included [in] on-going discussions regarding sought-after legal advice rather than unprotected investigatory facts”; (2) employee-to-employee communications can be privileged when “non-attorneys shared and discussed legal advice from counsel, separate and apart from any factual content regarding the investigation”; and (3) Princeton did not waive its privilege by producing some investigation-related documents, because it “has not asserted any reliance on advice of counsel in its defenses.” Id. at *6, *7-8, *9.
Decisions such as this should prompt litigants to avoid a “no harm in asking” approach when conducting privilege reviews — and to instead assume that a court is looking over their shoulders. Presumably such a careful, restrained privilege log approach will also encourage courts to trust the lawyers in other contexts.