The Ninth Circuit today reversed an order requiring disclosure of confidential attorney-client communications under the "crime-fraud" exception to the privilege. The court distinguished between the proof necessary for a court to order in camera inspection of the attorney-client material and the procedure a court must follow before ordering "outright disclosure" of the material. While a prima facie showing may warrant in camera inspection by the court, outright disclosure requires that the party claiming privilege have the opportunity to submit countervailing evidence and that the court consider all the evidence in determining whether the party seeking disclosure carried its "preponderance of the evidence" burden of proof. In re Napster, Inc., Copyright Litig., No. 06-15886 (9th Cir. Mar. 14, 2007).
Some courts have ordered in camera inspection of attorney-client material and then, without considering evidence tending to negate the crime-fraud exception, went on to order outright disclosure. The Ninth Circuit’s decision clarifies for those courts that both parties have the right to submit evidence and that a mere prima facie showing doesn’t authorize requiring disclosure.