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In Camera Reviews’ Process and Downside LEGAL TECH STARTUP SPOTLIGHT
THOMAS E. SPAHN M C GUIREWOODS LLP
Attorney-client privilege protection depends on content, and some work product claims also depend in part on content. Because a litigant's privilege log obviously does not disclose withheld documents' content, the adversary often seeks the court's in camera review of those withheld documents.
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Courts disagree about the standard for undertaking such in camera reviews. In Wisk Aero LLC v. Archer Aviation Inc., the court articulated the majority view (citing a Ninth Circuit case): "the decision whether to conduct the [in camera] review rests within the discretion of the district court." Case No. 21-cv-02450-WHO (DMR), 2022 U.S. Dist. LEXIS 202429, at *4-5 (N.D. Cal. Nov. 7, 2022) (citation omitted). Two days later, the court in Akerman LLP v. Cohen articulated the rare minority view — noting that "[f]or over thirty years," the court has held that before being required to turn over withheld documents a litigant "is entitled to an in camera review of the documents by the trial court." Nos. 4D22-553 & 4D22-556, 2022 Fla. App. LEXIS 7611, *19-20 (Fla. Dist. Ct. App. Nov. 9, 2022) (citation omitted).
Lawyers on both sides of this issue must check the tribunal's approach. The vast majority recognizes the trial court's discretion, but some courts always conduct an in camera review before ordering production of withheld documents.
A few days after the decisions summarized in last week's Privilege Point, the court in Adams v. Hanover Foods Corp. described its in camera review's conclusion, which highlights why many courts conduct such reviews: "Our review of the emails — where the defendants assert a privilege demonstrates that they consist mainly of business communications and not requests for legal advice or legal assistance to the defendant." Civ. A. No. 1:21-cv-00909, 2022 U.S Dist. LEXIS 210101, at *5 (M.D. Pa. Nov. 18, 2022). Such conclusions should remind lawyers to train their clients and discipline themselves to make sure that any legitimately privileged communications reflect clients' requests for legal advice and lawyers' responsive legal advice.
Presumably because it would tie up judicial resources in nearly every court, the same judge overseeing the litigation ordinarily conducts the in camera review. In a perfect world, another judge would do that. So litigants should remember that even if they win a privilege dispute, the judge hearing their case will have read the documents — so litigants and their lawyers should always be careful what they write.
CEO: Tim Flannery
HQ: New York, NY
# of Employees: 29
Total Raised: $15M
Post Valuation: $40M
Institutional Investors:
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Twitter: @PassthroughInc
URL: passthrough.com
Description:
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Developer of fund-closing software designed to seamlessly manage subscription document distribution, execution, and compliance. The company's software automates the subscription process for private funds and makes it easy to distribute subscription agreements to investors and have them executed electronically with real-time validation, extended document validation, and so on, enabling attorneys, general partners, and investors with a seamless workflow and fully executed subscription document.
Most Recent Financing Status (as of 11-May-2021)
The company raised $10.00 million of Series A venture funding in a deal led by Positive Sum on February 1, 2023, putting the company's pre-money valuation at $30 million. Company Ventures, Great Oaks Venture Capital, Motley Fool Ventures, and Broadhaven Capital Partners also participated in the round. The funds will be used toward product R&D, marketing, and scaling Passthrough's core offering.
Source: Pitchbook (As of Feb. 2023)
