Adversaries challenging litigants’ privilege or work product assertions necessarily “shadow box” with the litigants — because the adversaries cannot see the withheld documents. Courts often review such withheld documents in camera to assess such litigants’ protection claims.
In Loop AI Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2017 U.S. Dist. LEXIS 4254 (N.D. Cal. Jan. 11, 2017), defendants sought to quash plaintiff’s subpoena to their law firm Orrick Herrington. Although the court had already rejected plaintiff’s argument that it needed Orrick’s documents “for the purpose ‘double-checking’ the truthfulness of [a then-Orrick lawyer’s] statement” about his scope of work, the court nevertheless checked the withheld documents in camera. Id. at *10 (internal citation omitted). The court assured plaintiff that it “did not find any communications that contradicted [the lawyer’s] statement.” Id.
Most judges limit their in camera review to assessing privilege or work product protection claims, but some courts examine the documents for other purposes. And because the same judges normally rule on motions and sometimes even act as fact-finders, clients and their lawyers should remember that ultimately winning a privilege or work product fight will not necessarily prevent judges from reading the withheld documents.