Order Granting In Camera Review of Work Product Claim

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

In Hall v. Baltimore Police Dept., 2025 WL 1024069 (D. Md. Mar. 31, 2025)(Austin, J.), the Court entered an order granting in camera review to address disputes regarding plaintiff Hall’s claim of work product protection:

The purpose of the in-camera review is to ascertain whether all items are, as Plaintiff contends, opinion work product or, as Defendants contend, fact work product at least in part, such that at least some of the documents may be disclosed or redacted.

Id. at *2.

Mr. Hall’s Petition for a Writ of Actual Innocence had been granted and the State decided not to retry him.  He then sued the Baltimore Police Department and three individuals involved in his conviction.  

News reports state that He Spent 25 Years In Prison For A Murder He Didn’t Commit. He Was Just Fully Exonerated. (May 1, 2023).

“Because of this gross miscarriage of justice, Mr. Hall spent 9,072 days behind bars for a crime he did not commit,” said Gov. Wes Moore, a Democrat, at a meeting Wednesday morning of the Board of Public Works in Annapolis. “It took the state more than three decades to acknowledge Mr. Hall’s innocence.”

H. Gaskill, Maryland Board of Public Works awards $2M to wrongfully convicted man – Baltimore Sun (Feb. 14, 2024).

Mr. Hall’s current lawsuit is against the Baltimore Police Department and others:  “Mr. Hall’s claims arise from the Defendants’ alleged concealment of exculpatory evidence and coercion of witness testimony during Mr. Hall’s 1992 murder trial.”  Hall v. Baltimore Police Dep’t, 2024 WL 4278132, at *1 (D. Md. Aug. 24, 2024)

I published two blogs on prior decisions in Hall.  No Privilege Log is Necessary in Limited Circumstances When Discovery Requests Are Overbroad (Apr. 5, 2025);   “No Dog in the Fight” Analysis Applies to Scope of Subpoenas in the District of Maryland (Apr. 4, 2025).  They involved defendants’ subpoena issued to the Mid-Atlantic Innocence Project (“MAIP”).

The documents Mr. Hall claims are protected work product in the current decision originated from the MAIP file. 2025 WL 1024069 at n. 1.

In the current decision, the Court wrote: “Plaintiff’s privilege log complies with Rule 26.”  Id. at *2.  The Court described the information provided for the 44 entries on Mr. Hall’s log.

It then explained defendants’ position:

The Court notes that the challenges to the privilege log are not based on the lack of any privilege; rather, Defendants challenge whether certain documents are fact work product rather than opinion work product, the latter being subject to much greater protection from disclosure.

Id.

The Court next enunciated the discretionary standard for in camera review to make a privilege determination.  Id. at *1. A privilege log that complies with Fed.R.Civ.P. 26(b)(5) is a necessary predicate to in camera review. Id.

Generally, “the court should never be required to undertake in camera review unless the parties have first properly asserted privilege/protection, then provided sufficient factual information to justify the privilege/protection claimed for each document, and, finally, met and conferred in a good faith effort to resolve any disputes without court intervention.”

Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 266 (D. Md. 2008).

If that is done, then:

The party asserting privilege must establish “an evidentiary basis—by affidavit, deposition transcript, or other evidence—for each element of each privilege/protection claimed for each document or category of document.” Id. at 267. Moreover, before granting an in-camera review, there “must [be] 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 of privilege/protection.’” Prowess, Inc. v. Raysearch Labs. AB, No. WDQ-11-1357, 2013 WL 509021, at *1 n.2 (D. Md. Feb. 11, 2013) (quoting Victor Stanley, 250 F.R.D. at 266).

Hall v. Baltimore Police Dept., 2025 WL 1024069 (D. Md. Mar. 31, 2025).

Given that the issue in Hall concerned a request for disclosure of work product; and, that disclosure of fact work product required a showing of both substantial need and an inability to acquire a substantial equivalent without undue hardship; the Court ordered additional briefing on those two issues.

As the Court advised during the conference call, Defendants’ submission references in general terms what their asserted need and hardship are. But those general assertions do not demonstrate a concrete need or hardship as to the specific documents—which may involve statements from various individuals—identified on the privilege log. For example, Defendants’ reference to a recanting witness refusing to appear for a deposition (and who is now subject to a show cause order by this Court) could demonstrate substantial need and undue hardship as to fact work product concerning him. This does not support the piercing of work product protection for other potential witnesses or subjects of documents on the privilege log.

Id.

While the Court did not condone what it termed as defendants’ delay in raising the issue, it was “mindful” that “claims of privilege and work product are best resolved on the merits, if possible.”  Id. at *3 (citation and quotation omitted).

Therefore, rather than decline or delay resolution of this issue—when discovery is closing soon—the Court will move forward with a decision on the merits of Plaintiff’s [work product] claims. The exercise of discretion in this manner is not an invitation for parties to assume they may spring such disputes on the Court at the end of discovery.

Id. at *3.

Plaintiff was ordered to submit the documents described in the challenged privilege log entries.  Defendants were ordered to “file their brief concerning substantial need and undue hardship,” and plaintiff was provided time to file a reply.

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.