Redaction and In Camera Review

Redaction and In Camera Review

Rule 26(b)(3)(B) tells a court that orders discovery of work-product materials that it "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation."¹ The command attaches to the impressions, not to any particular document, and real files do not sort themselves into a folder of facts and a folder of opinions. A single interview memorandum may report on its first page what a witness said and on its third page whether counsel believes the witness. Courts honor the command without denying discovery outright by using two tools: redaction, which strikes the protected passages from the copy that goes to the requester, and in camera review, in which the judge reads the contested pages in private.

Neither tool comes into play until the requester has cleared the first hurdle. The policy against invading the privacy of an attorney's course of preparation is so well recognized that a burden rests on the party who would invade it to establish adequate reasons for production, and those reasons can include impeachment, corroboration, or witnesses who are no longer available or can be reached only with difficulty.² Rule 26(b)(3) frames the same showing as substantial need for the materials to prepare the case and an inability, without undue hardship, to obtain their substantial equivalent by other means.³ For witness statements, the other means is to interview the witnesses directly, so proof that a witness is dead, beyond the court's reach, hostile, or memory-impaired has often established undue hardship.⁴

A requester who makes that showing wins access to some material, but not necessarily to the whole document. Qualifying as work product makes a document eligible for protection and does not make it immune from discovery. The district court then asks whether the requester has shown substantial need and an inability to obtain the contents elsewhere without undue hardship, orders production of the portions for which that showing is made, and keeps its authority to protect the mental impressions, strategies, and analyses of the party or its representative.⁵ The Advisory Committee anticipated the result in its 1970 note: "the courts will sometimes find it necessary to order disclosure of a document but with portions deleted." In In re EchoStar Communications Corp., the Federal Circuit applied that guidance to communications that may contain work product of the second kind, meaning legal analysis that was never communicated. The parties, it said, should take special care to redact such information, and if necessary the district court may review the material in camera.⁶

Neither all-or-nothing ruling serves the interests in play. A court that refused the whole document because part of it records counsel's thinking would withhold facts the requester has proved it cannot get elsewhere. A court that ordered the whole document produced because the requester proved need would hand over counsel's evaluation, which the need showing never addressed. The federal rule makes the middle course available because of how it is worded. Some state rules absolutely prohibit disclosure of an attorney's mental impressions, but the federal rule says only that the court must guard against disclosure. That wording still gives the impressions the highest degree of protection, and it lets the court order a response when the information is necessary and can be provided in a way that protects the attorney's impressions of the case.⁷

The two-tier structure of Rule 26(b)(3) explains why redaction is the usual tool. Ordinary work product prepared in anticipation of litigation is discoverable only on a showing of need and hardship, while "core" or "opinion" work product, which covers the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative concerning the litigation, is generally afforded near-absolute protection from discovery.⁸ Wellstar Health System, Inc. v. Jordan describes the framework in the same terms.⁹ A requester who clears the first tier therefore still does not reach what the second tier holds.

Consider notes that Mauldin's counsel took on the testimony of a witness named Hersey, and suppose the opposing party makes the required showing for them. Counsel's notes on the admissibility of the evidence, on Hersey's credibility, and on the other evidence in the case remain protected opinion work product. If the court orders production of the notes on Hersey's testimony, it should allow Mauldin's counsel to produce a redacted version with all the evaluative material stricken out.¹⁰ The requester receives the testimony it proved it needed, and counsel keeps the evaluation that the rule exists to shelter.

A court can redact only what it can identify, and the party resisting discovery supplies the first identification. Rule 26(b)(5) requires a party that withholds material as trial-preparation material to make that claim expressly and to describe the withheld documents in a way that lets the other side assess the claim without revealing the protected content.¹¹ When a description cannot settle what a document contains, the judge can read it, because the judge is the one person who can look at the contested pages without defeating the protection. That is the role of in camera review, which a district court may use "if necessary" to sort a document's protected analysis from its ordinary content.¹²

Notes of witness interviews put the most pressure on this machinery. Some courts have held that no showing of necessity can overcome protection of work product based on a witness's oral statements. One court reasoned that a lawyer's notes of a witness conversation "are so much a product of the lawyer's thinking and so little probative of the witness's actual words that they are absolutely protected from disclosure." Courts that decline to adopt an absolute rule still treat such material as entitled to special protection.¹³ Redaction is how a court in the second group can order something produced while still giving that special protection real content.

Redaction works only where the facts can be lifted out of the opinion without exposing the opinion. In In re Intel Corp. Microprocessor Antitrust Litigation, the Special Master made an exhaustive in camera review and found that the Weil Materials contained both core and non-core work product. The core was not so intertwined with the facts that each interview's entire memorandum had to be treated as core, because the facts could be easily separated from it. The report also states the converse: if the attorney's mental impressions were so thoroughly intertwined with the factual information that the entire memoranda should be treated as opinion work product, the source materials could not be produced.¹⁴ Whether redaction is possible is therefore a finding made after reading the document, and it can go either way.

Sorting can also run across a file instead of within a single page. Courts generally, including those that would deny work-product protection to a signed affidavit, have found that information relevant to the evolution of the affidavit is protected. That information includes communications with counsel about the affidavit, prior drafts, and counsel's notes made while drafting.¹⁵ In such a court, the final affidavit may be open while its drafting history stays closed.

The difference between the two memoranda is whether the opinion can be removed while the facts remain usable and the thinking stays hidden. The second memorandum puts its evaluation in a section that can be cut away. In the first, the evaluation is part of how every fact is reported.

Exam answers most often slip at step two, because redaction is a remedy that follows the need showing and does not replace it. A requester who has not shown substantial need and undue hardship receives no part of a work-product document, redacted or otherwise, and the court reaches redaction only after finding that showing made.²¹