Be Careful Before Going Paperless For An In Camera Review

Judges don't like to do in camera reviews of documents.  Part of the reason is the quantity of documents involved.  There was an Order from Judge Tennille a couple of years ago in which the Judge chastised the parties for submitting notebooks filled with repetitive paper copies of emails which the Defendant claimed were privileged.  For a recap of that October 2009 ruling regarding an in camera review, see here.

Judge Tennille observed then that "discovery in a digital age is expensive and difficult."  Today, we are even further into the digital age.  Things are no less expensive now, but just as difficult (or even more so).

A case in point is Capps v. Blondeau, in the discovery phase now before Judge Jolly in the Business Court.  This week, Judge Jolly found a digital presentation of documents submitted to be reviewed in camera to be too voluminous for the Court to handle, and ordered that paper copies be provided.  The defendant claiming privilege had submitted two DVD's containing electronic copies of privilege logs and the more than a thousand documents claimed to be privileged. 

Judge Jolly wasn't happy about the presentation.  He said that he could not "access and/or manage a material portion of the voluminous electronic In Camera Submission in the format provided by [the defendant]." Order at 1.

He ordered the defendant to submit  "in individual hard copy, each of the documents and other electronically stored information that constitutes the In Camera Submission."  He also ordered the paper documents to be bates stamped to correspond to the privilege log entries.  Order at ¶¶1&2.  He gave the defendant two days to comply.

The lesson here?  Don't trick yourself into thinking that you are organized because you've put all the documents from a case on a disk instead of filling boxes with paper.  All you've done is make your box smaller. 

How can you be sure that your digital presentation will be easily reviewed by the Court?  I have no idea of the nature of the presentation by the Capps defendant, but the privilege log could have contained links to the documents at issue, and it could have been sortable by the originator and recipient of the document.  The defendant could have tested the disk in several computers to make sure that it would be accessible to Judge Jolly.  Maybe the defendant did all that.  Maybe Judge Jolly just prefers paper.

Either way, it's best to ask any Judge when requesting an in camera review whether he or she prefers  paper copies of documents or a disk.  Or to avoid in camera reviews altogether.

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