Given the bare bones nature of many privilege logs, courts sometimes may be called upon, or themselves decide, to review withheld documents in camera to assess the grounds for the documents’ withholding. A handful of courts find such an in camera review necessary before withheld documents can be disclosed — but nearly all courts explain that they have discretion to conduct such a review.
In Great American Insurance Co. v. Wilcox Properties of Columbia, LLC (In re Dimensions in Senior Living, LLC), Ch. 11 Case No. BK22-80865, Adv. Case No. AP 24-8007, 2024 Bankr. LEXIS 1854, at *6 (Bankr. D. Nev. Aug. 7, 2024), the “court declin[ed] to conduct an in-camera review at this stage” – noting that the “motion to compel is legally insufficient.” About a week later, the court explained in Laatz v. Zazzle, Inc., Case No. 22-cv-04844-BLF (VKD), 2024 U.S. Dist. LEXIS 146077, at *6, *15 (N.D. Cal. Aug. 15, 2024), that it had discretion to conduct such a review and assured litigants that such a review obviously does not trigger a waiver. The next day, the court in Fiskars Finland Oy Ab v. Woodland Tools Inc., noted that “[a] party is not entitled to an in camera review simply because it asks,” and explained that “the burden associated with reviewing [withheld documents] is not nothing, and the court does not see the need to conduct a review” in the circumstances it faced. No. 22-cv-540-jdp, 2024 U.S. Dist. LEXIS 146924, at *12, *13 (W.D. Wis. Aug. 16, 2024).
Lawyers representing litigants in unfamiliar courts should check the case law on those courts’ attitude toward such in camera reviews and be prepared to satisfy local standards if they wish to seek such a review.
