Recently I was contacted by an attorney who asked
“When does the 45 days to bring a motion to compel further responses to RPD begin? Is it when they serve their written response with an asserted privilege, or when they produce documents? The issue is over an asserted attorney client privilege. They produced redacted documents, no privilege log yet.”
There should be a simple answer to this question, but there is not. When a party responds to a Request for Production of documents the response must comply with C.C.P. §§ 2031.210 – 240. If a party asserts a privilege for any document and either withholds the document or redacts the document, then the party must comply with C.C.P. §2031.240(c)(1) and (2) and provide a privilege/redaction log. In the above scenario, an argument can be made that the lack of a privilege/redaction log being served is tantamount to there being no response and all objections are waived. Thus, C.C.P. §2031.300 titled Effect of failure to serve timely response to demand; Motion for order; Monetary and other sanctions; Failure to provide electronically stored information is applicable which has no time limits to bring the motion to compel. There is also no deadline for a motion to compel compliance with an agreement to produce documents. C.C.P. §2031.320(a); See Standon Co. v. Superior Court, 225 Cal. App. 3d 898, 903.
The other statute to consider is C.C.P. §2031.310 titled Motion for order compelling further response; Notice; Electronically stored information; Sanctions, which states:
(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:
(1) A statement of compliance with the demand is incomplete.
(2) A representation of inability to comply is inadequate, incomplete, or evasive.
(3) An objection in the response is without merit or too general
and requires the motion to compel further responses and documents to be filed and served 45 days after a response has been served. C.C.P. §2031.310.
The above three paragraphs appear to correspond with a party’s requirement to provide a response in compliance with C.C.P. §§ 2031.220 – 240.
C.C.P. 2031.220. Statement regarding compliance in whole or in part
C.C.P. §2031.230 Representation of inability to comply
C.C.P. 2031.240 Statement of compliance or inability to comply when part of demand objectionable; Legislative intent regarding privilege log
As can be seen by the statutes, it is not clear which statute would govern. However, there is guidance in the case law. In Best Products, Inc. v. Superior Court (2004) 119 CA4th 1181 the court found that even though the privilege log was not timely served, the court can only find waiver of the privileges if the response was not timely served. In a more recent case, the court in Catalina Island Yacht Club v. Superior Court (2015) 242 CA4th 1116, 1126 found that a two-month delay in serving the privilege/redaction log did not waive any of the objections on the grounds of privilege stated in the timely response.
My advice is that upon receipt of a deficient response, you should plan on bringing a motion to compel further responses pursuant to C.C.P. §2031.240 and set your calendar for 45 days out to file and serve the motion.