eDiscovery Assistant has once again written about an interesting case, about potential Court in camera review of documents identified as privileged by defendant Walgreens. And again, in doing so, they have saved me the trouble of having to find a case to write about. In their blog post covering this case, eDiscovery Assistant notes it has identified 88 decisions so far this year where the parties disagree over the whether documents on a privilege log should be there or are adequately represented, or seek in camera review by a court to confirm documents are truly privileged – more than either the entire year for 2018 or 2019.
In Washtena Cty Employees’ Retirement Sys. v. Walgreen Co. et al., No. 15 C 3187 (N.D. Ill. July 14, 2020), Illinois Magistrate Judge Gabriel A. Fuentes denied plaintiffs’ request for in camera review of 75 documents included on defendant Walgreens’ privilege log where the descriptions all alleged “legal” review of issues that were highly disputed in the case.
In this securities fraud class action lawsuit against Walgreens, its former CEO and CFO, the lead plaintiff moved for an in camera inspection of 75 documents from those listed on two of the three volumes of privilege logs tendered by defendant Walgreens in support of attorney-client privilege claims it asserted in support of its withholding of the documents. In all, the first two volumes of the Walgreens privilege log listed some 1,200 documents, and the third, which was the subject of ongoing efforts by the parties to resolve their disputes under Local Rule 37.2, contained an additional 4,500-some documents. The plaintiffs sought review not only of the documents in question, but hoped that guidance from the court’s decision on the review of those documents would be instructive to the parties’ on additional disputes over logged documents.
In finding that absent further allegations from plaintiffs, the information on the descriptions in the log was sufficient to establish privilege and not enough to warrant in camera review, Judge Fuentes stated:
“In a matter as complex as the instant case, parties spend thousands of attorney hours poring over thousands of documents, plucking out those that may support a privilege claim, deciding whether to assert the privilege claim, and then going about the task of describing the documents and the claim in a manner that will pass muster…The judicial discretion to review the described documents in camera has turned on multiple factors, including the burden involved in reviewing the sheer number of documents…, but the thrust of these cases is that in camera review is more critical before compelled disclosure, so courts might make sure that the disclosed materials truly are not privileged…But ultimately the question of whether to engage in an in camera review lies within the Court’s discretion, and the Court ought not to engage in an in camera review of even a manageable number of documents if the review is not warranted…Where a court’s discretion is involved, ‘two judges can reach two correct yet contrary conclusions based on identical fact patterns.’”
You can read more about the case on the eDiscovery Assistant blog here, which has a link to the actual case opinion from their site and analysis of the case. Enjoy! 🙂
So, what do you think? Should the court have agreed to the in camera review of a relatively small number of documents to help settle the disputes? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant.
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