Submission of Privileged or Work Product Materials to Court for In Camera Review Does Not Waive Applicable Protection - Joseph Hage Aaronson

Commercial Litigation and Arbitration

Commercial Litigation and Arbitration

Submission of Privileged or Work Product Materials to Court for In Camera Review Does Not Waive Applicable Protection

From Cobell v. Norton, 213 F.R.D. 69, 75 (D.D.C. 2003):

[T]he SEC maintains that the [defendant's] uninvited submission of the transcripts for the district court's in camera review was improper, and the resulting disclosure thus constituted waiver of the privilege. *** [W]e know of no case, and the SEC points to none, where the submission of privileged material to the court for in camera review in order to demonstrate the existence of a privilege has itself been held to constitute waiver. [Quoting SEC v. Lavin, 324 U.S. App. D.C. 162, 111 F.3d 921 (D.C. Cir. 1997)]

This Court is also unaware of any case in which the submission of privileged material for in camera review has been deemed to constitute a waiver of the asserted privilege. It would thus be illogical to find that a closely analogous situation -- namely, the submission of privileged documents to a judicial officer acting pursuant to the authority vested in him by court order -- resulted in a waiver of privilege.

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