In The Pension Committee of the University of Montreal Pension Plan, et. al. v. Banc of America Securities, LLC, et. al., 2009 WL 2921302 (S.D.N.Y. Sept. 8, 2009), U.S. District Court Judge Shira A. Scheindlin ruled that certain exhibits filed by plaintiffs in camera in opposition to a motion for spoliation sanctions were privileged, but nonetheless must be produced to the defendants with limited redaction to afford defendants the opportunity to respond.

Defendants filed a motion for sanctions against plaintiffs alleging plaintiffs turned a blind eye towards spoliation.  In opposition, plaintiffs filed heavily redacted attorney declarations and submitted two exhibits in camera for the court's review.  Defendants argued the attorney-client privilege had already been waived as to the materials because plaintiffs previously disclosed communications with counsel regarding the issue of document preservation and production in declarations and in deposition testimony.  The court held that such disclosures were pursuant to court order and did not amount to a waiver.  Nonetheless, the court ruled that defendants could not adequately respond to plaintiffs' arguments unless they have access to the declarations and exhibits.  The court ordered plaintiffs to provide defendants with the exhibits and declarations subject to limited redaction approved by the court. The court further ruled, citing FRE 502(d), that defendants' review of the materials could not constitute a waiver of privilege.  Nor could defendants use the information learned in their review as evidence outside the context of their motion for sanctions.