Because attorney-client privilege protection depends mostly on content, courts frequently read withheld documents in camera. Work product protection depends mostly on context rather than content, but even with that protection, courts may be called upon to review withheld documents. But must judges always review withheld documents in camera before deciding privilege or work product issues?

In Kushner v. Buhta, the court concluded that third party City of Minneapolis' privilege log's "general descriptions . . . failed to independently support a claim of work product protection" -- and thus held that the magistrate judge "did not err in requiring in camera review." Civ. No. 16-CV-2646 (SRN/SER) 2017 U.S. Dist. LEXIS 155981, at *10 (D. Minn. Sept. 25, 2017). The court also agreed with the magistrate judge that "upon review, the claimed protection is belied by the documents' contents." Id. One day later, another federal court determined it "will not conduct an in camera review of the third-party documents it previously held were not entitled to protection under the attorney-client privilege." William Powell Co. v. Nat’l Indem. Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 157733, at *10 (S.D. Ohio Sept. 26, 2017). The court explicitly rejected defendant's argument that an Ohio law required such an in camera review -- explaining that the defendant "has not cited any cases to show that Ohio's in camera review requirements are binding on federal courts." Id. at *9.

Whether a court's in camera review would assist or undermine privilege or work product claims, corporations and their lawyers should familiarize themselves with the applicable laws, rules, and even the presiding judge's attitude toward such in camera reviews.