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.” Continue Reading Does the 45-Day Rule Apply When No Privilege Log was Served?
In this blog I have asked that lawyers write in if there was a topic they would like me to address. I have received many requests over the years and the next couple of blogs will be responding to some of these requests. Here is the first one.
“I noticed a few things regarding privilege logs. 1) litigators are not sending them. 2) my opposing counsel tends to argue that there is no obligation to prepare a privilege log unless it is demanded by the requesting party and I don’t think that’s right – I think it’s an affirmative duty arising when someone withholds documents under an objection – is that right?”
Can a trial court order a party to disclose potentially privileged information because the party’s privilege log did not provide sufficient information for the court to evaluate whether the privilege applies? According to the Fourth District Court of Appeal, Division Three in Catalina Island Yacht Club v. The Superior Court of Orange County filed December 4, 2015 the answer is NO!
Continue Reading No Waiver of Privileges for Inadequate Privilege Log
In 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). Continue Reading The Document from Hell–aka The “Privilege Log”
Most discovery disputes involve requests for production of documents. This is because there are specific requirements for a party to properly respond to the request which has been the subject of many of my blogs, including a responding party’s obligation to state whether the documents you are seeking ever existed and where they are now as well as which request the documents being produced are responsive. However, there is nothing more combative in discovery than parties arguing over objections to a document request and the adequacy of the privilege log–assuming one was even provided.
To begin, in responding to the document request, a party is obligated to list the documents in a privilege log that are being withheld on the claim of privilege. C.C.P. §2031.240. According to Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:1474.5a, citing Hernandez v. Sup. Ct. (2003) 112 CA4th 285, pg. 291-292, the required contents of a response, or if necessary, a privilege log, include:
The purpose of the responding party providing a “privilege log” is to provide a specific factual description of documents in aid of substantiating a claim of privilege especially for judicial review. See Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 CA4th 110, 130 and Best Products, Inc. v. Superior Court (2004) 119 CA4th 1181. If the claim of privilege is challenged, it is in responding party’s best interest to make it easy for the court to understand why the document was withheld or made the redaction to substantiate the claim of privilege. California Practice Guide: Civil Procedure Before Trial (TRG 2023) §8:1474.5 citing Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016 ) 246 CA4th 566, 596-597.
In resolving the issue of whether or not a document is privileged and shouldn’t be disclosed, the court may rule on the objection based on the contents of the privilege log–assuming the privilege log is adequate enough for the court to make such a determination. Pursuant to CRC, Rule 2.585 the court also has the ability to take the documents being withheld in-camera to determine whether the documents are privileged or discoverable. If the documents are voluminous, many courts will appoint a Discovery Referee pursuant to C.C.P. §639(a)(5) to perform the in-camera review. Below is the current status of the law as what claimed privileged documents can be reviewed by the court in camera.
ATTORNEY CLIENT PRIVILEGE
Communications between client and counsel are usually privileged against discovery. See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:146 et seq. However, the court cannot review the documents in camera to determine whether the attorney-client privilege is applicable. Ev.C. §915, Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 736-737, Jefferson’s California Evidence Benchbook (CEB 4th Ed. 2014) §37.29, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8.199.12. As discussed above, the privilege log must be descriptive enough for the court to determine whether or not the privilege is applicable, including the participants in the communication, the date of the communication and the subject matter of the communication.
ATTORNEY WORK PRODUCT
Attorney work product is subject to only qualified protection from discovery, and a court may order disclosure under certain circumstances. See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:213 et seq. However, CCP §2018.030(a) provides that an attorney’s work product that consists of a writing that reflects an attorney’s impressions, conclusions, opinions or legal research or theories (absolute work product) is immune from discovery under any and all circumstances unless there has been a waiver. Jefferson’s California Evidence Benchbook (CEB 4th Ed. 2024) §43.12. The court may review the documents in camera to determine whether or not the documents are protected. California Discovery Practice (CEB 2024) §3.64 citing Costco Wholesale Corp. v. Sup. Ct. (2009) 47 C4th 725, 736. However, there is an issue whether or not the court can conduct an in-camera inspection to determine the absolute work product claim. In Coito v. Superior Court (2012) 54 C4th 480, 499-500 the California Supreme Court held that the “trial court should . . . make an in-camera inspection to determine whether absolute work product protection applies to some or all of the material.” This appears to conflict with Evidence Code §915(a) which bars the court’s ability to review material claimed to be protected under the absolute work product doctrine. See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:238.1 and §8: 267. Because Evidence Code §915(a) was in existence at the time the Supreme Court ruled on Coito, it can be assumed that the court meant absolute work product documents can be reviewed in camera.
RIGHT OF PRIVACY
The right of privacy is protected by Article I, §1 of the California Constitution and “protects [an] individual’s reasonable expectation of privacy against a serious invasion.” County of Los Angeles v. Superior Court (2021) 65 CA5th 621, 639. However, the protection is not absolute and is only a qualified privilege. In each case, the court must carefully balance the right of privacy against the need for the discovery to obtain just results in litigation. Valley Bank of Nevada v. Sup. Ct. (1975) 15 C3d 652. The more sensitive the information (e.g., personal financial information, medical records, employment records, customer lists, trade secrets, etc.), the greater the need for discovery must be shown. Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:324 citing Hoffman Corp. v. Superior Court(1985) 172 Cal.App.3d 357, Tien v. Sup. Ct . (2006) 139 CA4th 528, 540 and County of Los Angeles v. Sup. Ct. (2021) 65 CA5th 621, 656. Where several types of personal information are sought, the court must consider the possibility of requiring partial disclosure rather than denying discovery outright regarding each category of protected information. Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:324 citing Alch v. Superior Court (2008) 165 CA4th 1412, 1437. Since the right to privacy is only a qualified privilege, and a balancing of the rights of the parties is required, the documents can be reviewed in-camera to the court to determine whether the privilege is applicable and what information may be disclosed in light of any protective order that might be appropriate.
OFFICIAL RECORDS AND INFORMATION PRIVILEGE
Official information privilege only has a qualified privilege except for disclosure of information that is forbidden by a federal or California statute. (Evid C. §1040(b)(1)). The government entity has the burden of showing that the requested documents are privileged and must further explain why the official privilege applies, or declare it cannot so. The court may review these documents in camera to determine whether the documents should be disclosed in the interests of justice. See People v. Superior Court (1977) 19 Cal. App. 3d 52 and California Civil Discovery Practice (CEB 2024) §3.109.
Most cases turn on the documentary evidence presented at trial. It is important that when you serve your Demand for Documents, that you obtain the documents you are entitled to. Seeking in camera review of the documents being withheld on the claim of privilege will further insure that all documents that you are entitled to has been produced by the other side.
For further in-depth analysis of the privileges, the right to an in-camera review, and the scope of discoverability, see Jefferson’s California Evidence Benchbook (CEB 4th Ed. 2024) §§ 37-46. California Discovery Citations (TRG 2024) §§11:21–11:35, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:109-8:343 and Chapter 3 of California Civil Discovery Practice (CEB 4th Ed. 2024).
Here is another great article from Miles B. Cooper.
The lawyer read in disbelief. The memo, on defendant’s letterhead, crucified the defense. It was part of defendant’s production responses (and for reasons that will be talked about later, the fact that it was not electronically stored information is significant). The document had also been floating around for years. The defendant gave it to the police during the initial investigation. The police gave it back to the defense team when the defense asked for a copy of the police file. The defense produced it to the plaintiff. And, because it was responsive to a discovery category, the plaintiff produced it back to the defense. Continue Reading Read it and weep–Inadvertent Disclosure of Privileged Documents
Official Form Interrogatories–General (Disc-001) prepared by the Judicial Council were intended to be used to cover basic matters as well as being a foundational discovery device in personal injury and contract cases. They also contained sub-parts which were not allowed when serving special interrogatories and they were not subject to the “Rule of 35”. See California Code of Civil Procedure §§2030.030(a)(2) and 2030.060. Their use was usually the first volley in the discovery battle.
For years the Courts had found that the Form Interrogatories were objection proof as to form with minor exceptions. These minor exceptions usually involved case specific issues such as checking the box with the definition of “INCIDENT” versus creating your own definition for “INCIDENT” and cases which involve complex business transactions.
Continue Reading Are Official Form Interrogatories Objection Proof?
Assume you receive the following response to your Requests for Production of Documents:
Responding party hereby incorporates its general objections as if fully stated herein. Responding party objects to this request to the extent it seeks information protected from disclosure by the attorney-client privilege and/or work product doctrine, or any other applicable privilege. Responding party objects as it invades their and third parties’ right of privacy. Responding party objects that the request fails to specifically describe each individual item sought or reasonably particularize each category of item sought. Responding party objects that it is unduly burdensome and overbroad. Responding party objects to this request as it does not seek relevant documents or documents reasonably calculated to the discovery of admissible evidence. Responding party objects that plaintiff has equal access to these documents. Responding party objects that the request seeks documents already in plaintiff’s possession custody or control. Notwithstanding said objections, no documents.
In reviewing the response, it is likely you are focusing in on the fact that there are garbage objections to your request and that you weren’t provided a privilege log. However, there is another issue that you should take very seriously—the document response is not in compliance with California Code of Civil Procedure section 2031.230.
Continue Reading Nail Down Whether the Documents You are Seeking ever Existed and Where They are Now
The greatest discovery abuses come from responses to Requests for Production of Documents. Many responses contain a myriad of garbage objections, fail to contain a privilege log, along with producing documents that are not organized by category. Due to the responding party’s failure to comply with Codes of Civil Procedure § 2031.220, §2031.230, §2031.2400 and §2031.280, a motion to compel further responses and production of documents is the most common motion on the court’s docket. It is also the most time-consuming motion to not only prepare, but for the court to rule on.
On January 1, 2020, Code of Civil Procedure §2023.050 became effective which imposes mandatory sanctions for motions regarding Requests for Production of Documents. This new statute requires the court to impose mandatory sanctions on motions involving requests for production of documents. This sets up a party’s ability to bring issue, evidence and terminating sanctions as there will be an adjudication of prior discovery abuse.
Continue Reading New Discovery Sanction Regarding Requests for Production of Documents
Recently at an MCLE seminar, a sitting judge forewarned the audience that because of all the new judges coming from a variety of backgrounds, often they don’t have the necessary background on law and procedures for their department. His advice:
come to your hearings with copies of all the important cases and statutes, no matter how basic the concept is.
This sitting judge was subtly saying: Plan on educating the court!!