Parisi v. Rochester Cardiothoractic Associates

DECISION AND ORDER FISHER, United States Magistrate Judge. The parties have presented a discovery dispute to the court involving the question of Red Cross’s Standard Operating Procedures. Plaintiff seeks the entire document which, presumably, covers the entire spectrum of operating procedures in place in every Red [407] Cross endeavor. Defendants oppose this broad request, and agree only to limited disclosure. It is not clear from either side whether there is room for negotiation. See Local Rule 37. Defendants, however, have submitted a letter of January 6, 1995, which, without prior application, encloses, ex parte, the “index” of the Red Cross Standard Operating Procedures. While the letter indicates that a copy of the letter itself was given to opposing counsel (thereby giving notice of the ex parte submission), the letter does not recite the agreement of opposing counsel to the ex parte submission. Furthermore, the manner of submission of the index gave no opportunity to be heard on the question whether in camera submission is appropriate or desirable in the circumstances. Accordingly, I have not read the index and have placed it in a sealed envelope pending decision on whether to grant an in camera hearing permitting ex parte review of the index. The Supreme Court has questioned “the possible due process implications of routine use of in camera proceedings.” United States v. Zolin, 491 U.S. 554, 571, 109 S.Ct. 2619, 2630, 105 L.Ed.2d 469 (1989) (adding: “we cannot ignore the burdens in camera review places upon the district courts, which may well be required to evaluate large evidentiary records without open adversarial guidance by the parties”). See also, id. 491 U.S. at 570, 109 S.Ct. at 2630 (“Our endorsement of the practice of testing proponents’ privilege claims through in camera review of the allegedly privileged documents has not been without reservation.”) These due process considerations become even more stark when an attempt is made by one party to submit matters in camera without advance notice to the opposing party that in camera review will be sought. Defendants “should have provided notice to allow the plaintiffs to object to the in camera proceeding before it occurred.” Bareford v. General Dynamics Corporation, 973 F.2d 1138, 1145 (5th Cir.1992). As the Seventh Circuit has cogently stated: [A] designation of an affidavit as “in camera ” did not render that affidavit judicially sealed or trigger an in camera review by the district judge. An in camera review requires much more. The properly limited use of in camera review typically occurs during the course of litigation and requires adversarial safeguards. Initially, a party seeking an in camera review of any material must give appropriate notice of such a request to the opposing party as well as the court. Once the purpose for the in camera review is explained, the opposing party has an opportunity to respond, and the court may then either accept or reject the review proposal. If the court agrees to an in camera review, the moving party submits the material to the judge with such submission noted on the docket. The judge makes his in camera review. Then, depending on the judge’s findings, and the terms of submission outlined by him, the material may be ordered sealed. Whether sealed or unsealed, the material is preserved as a part of the court record. Of course, variations of this method may be provided by the district judge. United States v. Hall, 854 F.2d 1036, 1042 (7th Cir.1988) (emphasis supplied) (describing what happened in that case — essentially the same scenario as happened in this case— as an “inappropriate procedure ... in submitting an essentially ex parte communication to the court”). See also, In re Special September 1978 Grand Jury (II), 640 F.2d 49, 58 (7th Cir.1980) (“there was no excuse for the failure to give notice to the other parties that the judge was being contacted by Government and that additional materials were being offered”). Cf In re John Doe, Inc., 13 F.3d 633, 637 (2d Cir.1994) (“district court proceeded to an in camera review of the allegedly privileged communication only after oral argument”).1 [408] Accordingly, the proffered ex parte submission is rejected (although it will be sealed and filed as sealed for any appellate review), and defendants are required to make application on notice, with an opportunity to be heard, for in camera review. If this is not accomplished by the time of the scheduled conference, the conference will be postponed. SO ORDERED. Footnotes [1] Like Zolin, In re John Doe, Inc. involved application of the crime-fraud exception to the attorney client privilege. In such cases, due process requires more than mere notice to the opposing party and an opportunity for oral argument or other opportunity to be heard. The threshold showing required by Zolin also must be made before in camera review may be conducted. This case does not involve the same privilege, and it is the proponent of the privilege that is seeking in camera review here. Therefore, the threshold showing described in Zolin is inapplicable. But [408] In re John Doe, Inc. specifically approved the procedures undertaken in that case as comporting with due process and, as the quoted reference in the text demonstrates, those procedures afforded notice to the opposing party and oral argument. The Second Circuit thus stands in harmony with the Seventh Circuit cases quoted in the text on the issue of what procedures must attend a request for in camera review.