Commercial Division Blog

Posted: February 21, 2024 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Discovery/Disclosure, Attorney-Client Privilege, In Camera Review

Court Grants In Camera Review of Documents Despite Referee’s Decision, Noting Review is Standard Practice in Commercial Division

On January 20, 2024, Justice Andrea Masley granted a motion requesting in camera review of documents even after a discovery referee had declined to perform an in camera review.  The decision in CWCapital Cobalt VR Ltd. v. CWCapital Investments LLC, et al., Index No. 653277/2018, vacated the referee’s order and allowed for in camera review of 35 emails exchanged between lawyers and nonlawyers over which the defendants had claimed attorney-client privilege.  In granting the motion, Justice Masley indicated that in camera review has become common practice in the Commercial Division.  The Court explained: 

[T]he current practice in the Commercial Division favors performing reasonable in camera reviews . . . particularly when a discovery referee is in place. . . . this is so when the issue is one of the most intricate in commercial practice: whether settlement discussions among attorney sand businesspeople are prodominently legal or business in nature. 

The attorneys at Schlam Stone & Dolan frequently litigate disputes concerning the discovery and privilege. Contact the Commercial Division Blog Committee at if you or a client have questions concerning such issues.