The right to an in camera inspection of defense counsel's file arises once the government claims there has been a waiver due to a claim of IAC. The waiver is only as broad as necessary to enable the govt. to litigate the IAC claim. Defense counsel can make a motion for in camera inspection of the defensive file and for a protective order when the government moves to obtain a copy of the allegedly ineffective defense counsel's file. See Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003).



The Supreme Court has indicated that it is the "duty of the District Court to treat ... material as presumptively privileged" upon "receiving a claim of privilege" and then to order "an in camera examination" of that material in order to ascertain the validity of the claim and provide for a meaningful appellate review: Upon receiving a claim of privilege ... it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the prejudicial material was essential to the
justice of the [pending criminal] case ... here the District Court treated the material as presumptively privileged, proceeded to find that the Special Prosecutor had made a sufficient showing to rebut the presumption, and ordered an in-camera examination of the subpoenaed material. United States v. Nixon, 418 U.S.683, 713-714 (1974). Indeed, it is for the Court, in the first instance, to make a preliminary determination regarding privilege. See United States v. Jote's Inc., 720 F. Supp. 99, 101 (N.D. Ohio 1987); United States v. Zolin, 491 U.S. 554 (1989).



The appropriate procedure for establishing a privilege is via an in camera, ex parte, proffer to the Court outside the presence of counsel for the government so that the privilege is not deemed waived across the board. See e.g., Laughner v. United States, 373 F.2d 326, 327 n. 1 (5th Cir. 1967) ("where, as here, the client alleges a breach of duty to him by the attorney, we have not the slightest scruple about deciding that he thereby waives the privilege as to all communications relevant to that issue.") (emphasis added). [The privilege holders] should be allowed to present their argument ex parte because if the government is present the very information sought to be suppressed would be exposed. United States v. Jote's Inc., supra at 101, citing In re Walsh, 623 F.2d 489, 494 n.5 (7th Cir. 1980) and In re Berkley & Co., Inc., 629 F.2d 548, 552 (8th Cir. 1980).