The Document from Hell--aka The "Privilege Log"

Posted by Katherine Gallo on January 31, 2012

Exit to hell.jpgIn responding to Requests for Production of documents you have three response choices  (1) agree to produce (C.C.P. §2031.220 (pdf)); (2) state that after a diligent search and a reasonable inquiry you have no documents (C.C.P. §2031.230 (pdf)) or (3) object C.C.P. §2031.240 (pdf).  If you chose option three, then you must:

(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.  See C.C.P §2031.240(b)

This document is more commonly known as the “privilege log”.  Although C.C.P. §2031.240(b) does specifically not state the kind of identification that is required, it is expected that for each document withheld that the privilege log state (a) the nature of the document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential number (or document control umber, if any), and (f) the privilege claimed.  See California Civil Discovery Practice (CEB 4th Ed. 2011)  §3.192 citing Wells Fargo Bank v. Superior Court (2000) 22 C4th 201 (pdf) and §33.201 for a sample of a privilege log.

Except in some limited situations, California court’s do not have the right to do an in camera inspection of privileged documents to determine whether or not the document is actually privileged. See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:192.1 citing Southern California Gas Co. v. Public Utilities Communication (1990) 50 C3d 31, 45 (pdf). Therefore, it is important that the privilege log be sufficiently specific enough to allow the court to determine whether the document is or is not (in) fact privileged.”  Wellpoint Health Networks, Inc. v. Sup Ct. (1997) 59 CA4th 110, 130 (pdf). If the log is not sufficiently specific, the trial court may order the objecting party to prepare a new log containing more information about the nature of the document in question.  Kaiser Foundation Hospital v. Superior Court (1998) 66 CA4th 1217, 1228 (pdf).  The court also may conduct a preliminary fact hearing on whether the privilege exists.  See Ev. C. §402. 

So, when you are asserting objections to document requests remember:

You Can’t Do General Objections.  Many attorneys use a preamble before their responses called “General Objections”.  This is improper.  You don’t get to list every conceivable objection and have blanket coverage. C.C.P. §2031.210–240 makes it clear how you are to respond and “General Objections” is not one of them.  See Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 (pdf).

You Can’t Do “Boiler-plate” aka Garbage Objections, as they are an indication of bad faith and you can be sanctioned.  See Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 (pdf).

You Can’t Object to a Document that does not exist.  When counsel for a party objects to production of documents under C.C.P. §2031.240(b), counsel implies that the documents in question exist and have been reviewed.  Objection made to requests for production of document that do not exist or not in the attorney or party’s possession violate an attorney’s ethical duty under Bus & PC §6068(d) to act truthfully and, therefore, constitutes bad faith.  See Bihun v. AT&T Info. Sys (1993) 13 CA4th 976, 991 (pdf) (reversed on other grounds) and CEB §8:10.  Thus, it is important that you review all responsive documents before you respond.     

You Must Provide a Specific factual description of the documents or you run the risk that your objections will be deemed waived.  The purpose of the privilege log in discovery proceedings is to provide specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production, and is intended to permit a judicial evaluation of the claim of privilege. Best Products, Inc. v. Superior Court (2004) 119 CA4th 1181 (pdf). 

The burden is on the party claiming a privilege to establish whatever preliminary facts are essential to the claim if a motion to compel is filed.  Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:192 see Ev. C. §§402, 405.

 

INSPECTION DEMANDS-What is a Reasonable Inquiry?

Posted by Katherine Gallo on December 13, 2011

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To determine whether or not a responding party has made a reasonable inquiry, you must determine where the responding party searched (what efforts were made), who did they talk to (did they make an inquiry to their legal department, human resources, customer relations, the employees in the chain of command, etc.), and what were the questions they asked.

More often then not I see responses to document requests being done (1) by the one with the highest bar number on the pleading (a.k.a. the newbie associate) and/or (2) by the attorney dictating at their desk instead of taking the time to sit down with the client, determining whom they should be talking to and knowing what questions to ask.

It is my opinion that the person who should be talking to the client and collecting the documents is the experienced senior attorney who has a relationship with the client and knows what questions to ask. If the senior attorney still chooses to delegate, then they need to be “hands on” and take responsibility whether or not a “diligent search” and “reasonable inquiry” were in fact made prior to the response and production being served.

If a motion to compel further responses comes before me based on the response:

After a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, there are no documents within RESPONDING PARTY’s possession, custody, or control

I am going to be asking the responding party for a declaration from the client and/or attorney as to what exactly was done, who was contacted and what questions were asked. What I have found, more times then not, is that the parties have not done a “diligent search” and/or made a “reasonable inquiry.”

It is important that attorneys recognize that the obligations in responding to inspection demands and collecting documents cannot be ignored. The courts are more than ever issuing sever monetary, issue and evidence sanctions for failure to comply. The most recent being Kayne v. Superior Court (2011) 198 CA4th 1470 (pdf).  Therefore, in responding to an inspection demand and collecting documents you need to do the following:

FIRST, you need to figure out what questions you should be asking your client and what documents you need from your client. To determine that you need to know your case and that includes:

  • Each party’s theories
  • Potential causes of action that were not pleaded but might be included in an amended complaint
  • Affirmative defenses
  • Review of jury instructions

SECOND, you need to identify the corporate structure to determine whom you should be talking to and whether or not they did an investigation. These people include:

  • In-house counsel
  • Risk manager
  • Human resources
  • Chains of command regarding reporting obligations.

THIRD, you need to identify key witnesses with information relevant to the subject matter of the dispute. These witnesses include:

  • People whose names appear in the narrative portion of a complaint.
  • People whose names appear on documents.
  • People named in interrogatory responses.
  • People identified in depositions.
  • People identified by in-house counsel.
  • People identified by internal or insurance company investigations.

FOURTH, you are going to need to determine where the client has their documents as well as third parties whom the client has custody and control over (i.e., insurance brokers, banks, former employees etc.) keeps their documents and/or electronically stored information. This inquiry starts with determining whether the documents are in paper files, they are electronically stored information (ESI) or a combination thereof.

Paper Files

  • Where are the primary file cabinets?
  • Would any employee or third party have copies?
  • Are any of the documents stored off site?
  • Have any of the documents been destroyed?

Electronically Stored Information (ESI)

  • Where are the primary electronically stored files kept (i.e., stand-alone computers, servers, the cloud)?
  • Is the information on any portable storage media such as thumb-drives CD-ROM, portable backup drives?
  • Is the information on anyone’s personal laptops, home computers, tablets, smart phones?
  • Has any of the ESI been erased, overwritten or destroyed?

FINALLY, you are going to need to determine the client’s data retention and litigation hold policies. Also, do they have a criterion in place as to what documents get systematically destroyed due to age and other reasons.

Though the above is not an all-inclusive list, it is a good starting point. I would also recommend that you review California E-Discovery and Evidence (Matthew Bender Practice Guide (2010)) Section 9 titled Gathering and Producing Electronically Stored Information.

WORDS OF WISDOM:

In Qualcomm v. Broadcam (United States District Court, Southern District of California, Case # 05cv1958-B) United States Magistrate Judge Barbara L. Major stated in Footnote 10 of her January 7, 2008 ruling that

If[the associate attorney] was unable to get Qualcomm to conduct the type of search he deemed necessary to verify the adequacy of the document search and production then he should have obtained the assistance of the supervising or senior attorneys. If [they] were unable to get Qualcomm to conduct a competent and thorough document search, they should have withdrawn from the case or taken other action to ensure production of the evidence.

 

INSPECTION DEMANDS-What is a Diligent Search

Posted by Katherine Gallo on November 08, 2011

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Have you ever received a response to requests for production of documents that says:

After a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, there are no documents within RESPONDING PARTY’s possession, custody, or control

Yet you question the veracity of the verified response, because they have got to have documents. So what can you do? This is a two-prong inquiry. The first being

What is a "Diligent Search"?

The requirement of a “diligent search” in responses to requests for inspection and production of documents is one of the most fought over provisions of the Discovery Act. Part of the problem is that the Code of Civil Procedure isn’t really helpful in its definition as the only time the language comes up is in C.C.P. §2031.230 (pdf) which states in part:

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand . . .

Also the typical treatises, Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) and California Civil Discovery Practice (CEB 4th Ed. 2011) don’t go into detail as to what the obligation really is. So, here is what I expect a party to do in responding to a request for production of documents.

Good Faith Obligation

A party must make a good faith effort in obtaining documents responsive to the request. Regency Health Services, Inc. v. Superior Court(1998) 64 CA4th 1496 (pdf). To me, this means that the obligation is well beyond an attorney dictating a response off the top of his head and looking through his file. See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants(2007) 148 CA4th 390 (pdf)  The Code recognizes that the response and production are labor intensive. That is why you have 30 days.

“Possession, Custody or Control”

The case law is very clear when it comes to responses to interrogatories, requests for admissions and document requests – “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 CA 3d 771(pdf).

It goes without saying that a party must produce documents in his or her possession and custody. However, even if a party that does not possess an item covered by an inspection demand the party may nonetheless control it. California and Federal courts have found that a party has control over the following individuals and entities for purposes of producing documents:

A Party’s Lawyer Smith v. Superior Court (1961) 189 CA2d 6 (pdf)

Family Members Jones v. Superior Court(1981) 119 CA 3d 534, 552 (pdf)

Experts Sigerseth v. Superior Court(1972) 23 CA 3d 427,433 (pdf)

Insurers Clark v. Superior Court(1960) 177 Cal. App 2d 577 (pdf)

Agents or Employees Gordon v. Superior Court(1984) 161 CA 3d 151 (pdf)

Officers, Shareholders and Managers General Environmental Science Corp v. Horsfall (1991, ND Ohio) 136 FRD 130, 133-134

Affiliated Corporations Standard Ins., Co. v. Pittsburgh Electric Insulation, Inc. (1961, WD Pa) 29 FRD 185; Gerling Intern. Insur. Co. v. C.I.R. (1988, CA3) 839 F2d 121, 140,141.

Tax Records Reeves v. Pennsylvania Railroad Co. (1948, D Del) 80 F Supp 107, 109.

I also expect the diligent search to include any third party institution where you can sign an authorization and obtain the records such as health care providers, financial institutions etc.

The statute and the case law make it very clear that a party and the attorney must be proactive in obtaining the information and documents in response to a request. Take the time and do the response and production correctly, because this is the discovery device where issue, evidence and terminating sanctions are mostly granted.

For more detailed discussion on what defines “control” by a party over non-parties see Hogan and Weber California Civil Discovery Second Edition at §6.5.

NEXT: INSPECTION DEMANDS–What is a Reasonable Inquiry?

Have you ever received a response to requests for production of documents that says: 
“After a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, there are no documents within RESPONDING PARTY’s possession, custody, or control”    
Yet you question the veracity of the verified response, because they have got to have documents.  So what can you do?   This is a two-prong inquiry.  The first being
 What is a Diligent Search? 
The requirement of  a “diligent search” in responses to requests for inspection and production of documents is one of the most fought over provisions of the Discovery Act.  Part of the problem is that the Code of Civil Procedure isn’t really helpful in its definition as the only time the language comes up is in C.C.P. Section 2031.230 which states in part:
A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand . . .   
Also the regular treatises, Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) and California Civil Discovery Practice (CEB 4th Ed. 2011) don’t go into detail as to what the obligation really is.  So, here is what I expect a party to do in responding to a request for production of documents.  
Good Faith Obligation
A party must make a good faith effort in obtaining documents responsive to the request.   Regency Health Services, Inc. v. Superior Court (1998) 64CA4th 1496.  To me, this means that the obligation is well beyond an attorney dictating a response off the top of his head and looking through his file.  See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CA4th 390  The Code recognizes that the response and production are labor intensive.  That is why you have 30 days. 
“Possession, Custody or Control”
The case law is very clear when it comes to responses to interrogatories, requests for admissions and document requests – “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 CA3d 771,782. 
It is a no brainer that a party must produce documents in his possession and custody.  However, even if a party who does not possess an item covered by an inspection demand may nonetheless control it.    California and Federal courts have found that a party has control over the following individuals and entities for purposes of producing documents: 
A party’s lawyer.  Smith v. Sup. Ct. (Alfred) (1961) 189 CA 2d 6
Family Members Jones v. Superior Court (Benny) (1981) 119 CA 3d 534, 552 
Experts Sigerseth v. Superior Court (1972) 23 CA 3d 427,433. 
Insurers Clark v. Superior Court (1960) 177 Cal. App 2d 577 
Agents or Employees Gordon v. Sup. Ct. (U.Z.MFG.Co) (1984) 161 CA 3d 15,167-168, 
Officers, Shareholders and Managers General Environmental Science Corp v. Horsfall (1991, ND Ohio) 136 FRD 130, 133-134
Affiliated Corporations Standard Ins., Co. v. Pittsburgh Electric Insulation, Inc. (1961, WD Pa) 29 FRD 185; Gerling Intern. Insur. Co. v. C.I.R. (1988, CA3) 839 F2d 121, 140,141.
Tax Records Reeves v. Pennsylvania Railroad Co.  (1948, D Del) 80 F Supp 107, 109.   
I also expect the diligent search to include any third party institution where you can sign an authorization and obtain the records such as health care providers, financial institutions etc.  
The statute and the case law make it very clear that a party and the attorney must be proactive in obtaining the information and documents in response to a request.  Take the time and do the response and production right, because this is the discovery device where issue, evidence and terminating sanctions are mostly granted.  
For more detailed discussion on what defines “control” by a party over non-parties see Hogan and Weber California Civil Discovery Second Edition at §6.5.  
NEXT: The second prong–what is a reasonable

Have you ever received a response to requests for production of documents that says:

 

“After a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, there are no documents within RESPONDING PARTY’s possession, custody, or control”

 

Yet you question the veracity of the verified response, because they have got to have documents. So what can you do? This is a two-prong inquiry. The first being

 

What is a Diligent Search?

 

The requirement of a “diligent search” in responses to requests for inspection and production of documents is one of the most fought over provisions of the Discovery Act. Part of the problem is that the Code of Civil Procedure isn’t really helpful in its definition as the only time the language comes up is in C.C.P. Section 2031.230 which states in part:

 

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand . . .

 

Also the regular treatises, Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) and California Civil Discovery Practice (CEB 4th Ed. 2011) don’t go into detail as to what the obligation really is. So, here is what I expect a party to do in responding to a request for production of documents.

 

Good Faith Obligation

 

A party must make a good faith effort in obtaining documents responsive to the request. Regency Health Services, Inc. v. Superior Court (1998) 64CA4th 1496. To me, this means that the obligation is well beyond an attorney dictating a response off the top of his head and looking through his file. See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CA4th 390 The Code recognizes that the response and production are labor intensive. That is why you have 30 days.

 

“Possession, Custody or Control”

 

The case law is very clear when it comes to responses to interrogatories, requests for admissions and document requests – “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 CA3d 771,782.

 

It is a no brainer that a party must produce documents in his possession and custody. However, even if a party who does not possess an item covered by an inspection demand may nonetheless control it. California and Federal courts have found that a party has control over the following individuals and entities for purposes of producing documents:

 

A party’s lawyer. Smith v. Sup. Ct. (Alfred) (1961) 189 CA 2d 6

 

 

 

Family Members Jones v. Superior Court (Benny) (1981) 119 CA 3d 534, 552

 

Experts Sigerseth v. Superior Court (1972) 23 CA 3d 427,433.

 

Insurers Clark v. Superior Court (1960) 177 Cal. App 2d 577

 

 

Agents or Employees Gordon v. Sup. Ct. (U.Z.MFG.Co) (1984) 161 CA 3d 15,167-168,

 

Officers, Shareholders and Managers General Environmental Science Corp v. Horsfall (1991, ND Ohio) 136 FRD 130, 133-134

 

Affiliated Corporations Standard Ins., Co. v. Pittsburgh Electric Insulation, Inc. (1961, WD Pa) 29 FRD 185; Gerling Intern. Insur. Co. v. C.I.R. (1988, CA3) 839 F2d 121, 140,141.

 

 

Tax Records Reeves v. Pennsylvania Railroad Co. (1948, D Del) 80 F Supp 107, 109.

 

I also expect the diligent search to include any third party institution where you can sign an authorization and obtain the records such as health care providers, financial institutions etc.

 

The statute and the case law make it very clear that a party and the attorney must be proactive in obtaining the information and documents in response to a request. Take the time and do the response and production right, because this is the discovery device where issue, evidence and terminating sanctions are mostly granted.

 

For more detailed discussion on what defines “control” by a party over non-parties see Hogan and Weber California Civil Discovery Second Edition at §6.5.

 

 

NEXT: The second prong–what is a reasonable inquiry?

inquiry?  

 

 

Litigate like an Egyptian

Posted by Katherine Gallo on September 28, 2011

EgyptianYou are now sitting down to organize your Discovery Plan and determining what discovery you need to evaluate your case, prepare for mediation, file a motion for motion for summary judgment/summary adjudication and/or get it ready for trial. But where do you start? My suggestion is to litigate like an Egyptian and build a pyramid (pdf).

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Give Me All Your Documents!

Posted by Katherine Gallo on July 26, 2011

Pointing Gun.jpgI recently reviewed a case management order in a complex construction case venued in Southern California.  The order required all parties to produce:

Any and all relevant non-privileged and non-protected documents (consistent with California Evidence Code Section 250), including but not limited to job files, building contracts, agreements, notes, correspondence, photographs, videotapes, diagrams, plans, specifications, shop drawings, “as-built” plans, calculations, journals, invoices, purchase orders, change orders, addenda reports (including reports prepared by consultants and design professionals for the original construction), job diaries, receipts, project files, site records, daily job logs, field orders, superintendent reports, requests for clarification, requests for information, time cards, governmental inspection punch lists and sign off sheets and invoices relating to the construction, repair, or maintenance of the real property involved in this lawsuit.

There are so many things wrong with this request I do not know where to begin.

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California Civil Discovery--Charts for the Everyday Litigator

Posted by Katherine Gallo on October 06, 2010

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Over the years friends and colleagues have called me up asking for a quick answer on a discovery question that they have. The phone call usually went like this “I want to get plaintiff’s phone records, how do I do that?” or “I forgot to disclose experts, am I too late?” or “They want to send my client to a psychiatrist. Can I object?” I know the answers to these questions which are “Yes,” “No” and “Yes.” However, to get the statutory authority, I rely on the charts I have prepared and published over the last 18 years. The California Civil Discovery--Charts for the Everyday Litigator " (pdf)  was recently updated and now available to you for download. 

Hope it helps!!

 

It Is Too Relevant!

Posted by Katherine Gallo on September 23, 2010

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Attorneys easily spew out the objection “the information you are seeking is not relevant to the subject matter of the litigation” as easily as they say “Good morning.”  If you are the propounding party your reaction is probably to be to yell out “It is too relevant!” because it doesn’t even appear that the responding party actually thought it through before spewing out the objection.   But what exactly is relevancy?  It seems to be a nebulous term that invokes images of catching clouds with your hands or like Supreme Court Justice Potter Stewart’s definition of pornography “I know it when I see it”?

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You've Blown the Dreaded Draconian 45-Day Rule-Now What Do You Do?

Posted by Katherine Gallo on August 05, 2010

hair pulling woman.jpgMotions to compel further responses to interrogatories, requests for productions of documents and requests for admissions require that the motion be filed within 45 days. CCP §§ 2030.300(c), 2031.310(c) and 2032.290(c)  Delaying the filing of the motion waives a party’s right to compel further responses. The case of Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681 (pdf) at 685 (Pre-1986 Discovery Act) takes the position that the court lacks jurisdiction to order further responses after time has expired. The Second District Court of Appeal upheld this rationale in Sexton v. Superior Court (1987) 58 Cal. App. 4th 1403 (pdf), 1410.

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Are Your Objections Garbage?

Posted by Katherine Gallo on July 29, 2010

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Not only are most objections garbage, we tend to recycle our garbage objections from one case to the next. Sometimes, we pick up other attorneys’ garbage objections and contribute to more litter. This is done over and over again without even thinking what it is doing to the environment of the litigation.

Garbage objections fuel the ire of opposing counsel. The “meet and confer” letter that is soon to follow is usually full of hostility and threats. Any amicable relationship you had hoped for with opposing counsel is on the cusp of being destroyed. More important, you are now costing your client more money in attorneys’ fees and possibly in settlement.  So before you throw out the trash, look at these common objections and why they will be overruled:

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