This motion for in camera examination or review checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy. The law governing requests for in camera examinations is not well settled, but here is a general guide:
- Confer. Treat this much like a motion to compel, where the court will be very skeptical of any motion that does not set forth extensive efforts to confer and resolve without involving the court.
- Set forth standard of review: "[B]efore a district court may engage in in camera review at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability." U.S. v. Zolin, 491 U.S. 554, 574-75 (1989).
- But remind court that burden of demonstrating applicability of privilege lies with proponent of privilege. Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 (7th Cir. 1996).
- In Colorado, courts must conduct an in camera review and apply a balancing test prior to ordering disclosure. See Martinelli v. Dist. Court, 612 P.2d 1083 (Colo. 1980).
- Request court order opposing party to deliver specified documents to it under seal for in camera review to determine applicability of privilege/work product doctrine and/or to determine the appropriate extent of redaction.
Thoughts & Best Practices:
- Make sure your own house is in order first: when you open the in camera review door, is your own privilege log ready for scrutiny? Consider seeking a non-waiver agreement and preemptively disclosing some or all of your own privileged/work product documents.
- Ensure privilege logs are exchanged prior to depositions where it may be possible to ask if, for example, a document was really prepared in anticipation of litigation or an email was really sent primarily to obtain legal advice.
- Watch our for the practice of hiding documents by "cc'ing" counsel. Pointing out this pattern alone may be enough to justify an in camera review, and this may be a good question to ask at certain depositions (i.e. "at what point did you begin copying your attorney on all emails related to X?").
Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
This motion for in camera examination checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.