The Standard for In Camera Review of Assertedly Privileged Documents

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

The purpose of a privilege log is to provide sufficient information for the recipient of the log to determine whether the withheld information is, at least on its face, privileged.  In short:  “Trust, but verify.”  See, e.g., Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024); How Much Detail is Enough in a Privilege Log? (Apr. 9, 2024); When is a Categorical Privilege Log Insufficient? (Jun. 20, 2024).

Frequently, a discovering party will request in camera review by the court of the withheld documents.  That, of course, may involve a significant expenditure of judicial resources. U.S. v. Zolin, 491 U.S. 554, 571 (1989)(the burden placed on a court cannot be ignored).

In Willoughby v. Govt’. Employees Insurance Co., 2024 WL 3183860 (M.D. Fl. June 26, 2024), the court explained the standard governing requests for in camera review.  Plaintiff’s claim against GEICO was a third-party bad-faith insurance action.  GEICO had refused to settle an auto tort and, at trial, the jury awarded the plaintiff $30 million.  In this action, the tortfeasor sued GEICO alleging bad faith refusal to settle the auto tort.

While there were several motions and cross-motions, on the in camera review issue, the court wrote that: “Plaintiff attached almost 200 pages of Defendant’s privilege logs, highlighted to reflect the hundreds of entries that Plaintiff wished the Court to review.”

The court held that plaintiff failed to demonstrate a sufficient basis to invoke that process.  Plaintiff’s argument was that “it appears that Defendant is asserting privilege over documents in which counsel gave business advice rather than legal advice.”  Id. at *5.  Under Florida law, legal advice was privileged; business advice and claims processing was not. Id.

The court wrote:

Plaintiff asks the Court to review hundreds of documents that Defendant [GEICO] and the Young [Law] Firm have withheld, to assess them for privilege. The decision to review materials in camera is left to the sound discretion of the trial court. United States v. Zolin, 491 U.S. 554, 572 (1989). The movant bears the burden of justifying an in camera review. See id. An in camera review is not appropriate merely because a party objects to assertions of privilege. See id. at 571–572. And, a mere objection, or even a suspicion, is not a basis upon which the parties can shift a burden to the Court that they should bear themselves. Id. A Court should only conduct an in camera review after the movant provides a sufficient factual basis to support a good faith belief that in camerareview will reveal improperly withheld material. Id. at 572. I find that Plaintiff has not demonstrated sufficient facts to create a reasonable belief that the hundreds of documents it identifies were wrongly withheld.

Willoughby v. Govt’. Employees Insurance Co., 2024 WL 3183860 (M.D. Fl. June 26, 2024)(emphasis added).

Plaintiff’s argument that, because other documents show that the law firm rendered non-legal advice to GEICO, and based on the privilege log, it “appears” that non-privileged documents were withheld, failed. Id.  Similarly, merely pointing to “hundreds of privilege log entries” without explanation of why they are thought to contain non-privileged business advice, failed.^[1]

Willoughby relied on United States v. Zolin, 491 U.S. 554, 572 (1989).  That decision was factually grounded on the crime-fraud exception.  Id. at 565. The Court wrote: “Before engaging in in camera review to determine the applicability of the crime-fraud exception, the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person, … that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies….  Once that showing is made, the decision whether to engage in in camera review rests in the sound discretion of the district court.” Id. at 572 (citations and internal quotations omitted).

Zolin has not been limited to the crime-fraud exception.  Labbe v. Dometic Corp., 2024 WL 325331, at *6 (E.D. Cal. Jan. 29, 2024); Berkadia Real Est. Advisors LLC v. Wadlund, 2023 WL 5608443, at *6 (D. Ariz. Aug. 30, 2023).

In virtually every aspect of discovery, courts are rejecting generalized assertions and demanding an adequate factual predicate.  For example, a “knee-jerk, boilerplate objection about undue burden,” has failed.  District of Maryland’s Recent Application of Spoliation Doctrine in Discrimination Case (Feb. 7, 2021). “Boilerplate” objections fail. General Objections, Dracula, and “Whac a Mole” (Aug. 16, 2024);  “Old” Sedona Paper Implements the “Specificity” Provision of Discovery Responses (Dec. 9, 2021); cf.  Court Excused Party From Waiver by Failure to Provide Specific Objections(Aug. 7, 2022). “Boilerplate” definitions have been criticized.  New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests (Dec. 8, 2021).

Courts expect “specificity in the Parties’ briefing….”  4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), quoting In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293, at *1 (N.D. Cal. Feb. 20, 2024).  And, they expect the same in ESI Protocols.  Id.

“[C]ooperation requires focused discovery requests, specific discovery objections, negotiation, discussion, flexibility, transparency, and often an iterative process,” or, in other words, specificity. An Epilog:  4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 10, 2024).

The Willoughby court demanded specificity in a request for in camera review.  The court found specificity lacking.  The absence was fatal to the motion.

Notes

^[1] The court reviewed 51 documents in camera on another issue. Id. at *10.