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?”
A party’s ability to request documents from the other side is one of most important tools in any discovery plan. Depositions are useful but memories can fade, and witnesses’ recollections can be wrong. Interrogatories and requests for admission are responded by the attorney and are usually answered to support a claim or defense. However, as it has been said over the years, “The document speaks for itself.” The majority of cases turn on whether or not there are documents, photos or other tangible items, prepared contemporaneously, that support a given position. This makes not only the document production important, but the response is just as important, as you will want to nail down whether any documents actually exist that relate to a particular topic of inquiry.
Code of Civil Procedure §§ 2031.220 – 240 have specific requirements regarding the response to a Request for Production of Documents:
If a party is going to produce documents, then the responding party must comply with C.C.P.-§2031.220.
If a party is not producing a document because of their inability to comply, the responding party must then follow C.C.P.-§2031.230. See my blog “How a Crafty Lawyer Hides Things by Avoiding the Details when Responding to Requests for Production of documents.”
If a party is withholding a document based on a claim of privilege or work product it must comply with C.C.P.-§2031.240 which states:
(a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.
(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:
(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.
(c)
(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.
(2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law. [Emphasis Added]
The expression “privilege log” is jargon, commonly used by courts and attorneys to express the requirements of the statute providing that the party who objects to a discovery demand for the inspection of a document based on privilege must support such objection with a specific identification of the document and a specific ground for objection. TRG Civil Litigation Series: California Discovery Citations (TRG 2018) §5:18 citing Hernandez v. Sup. Ct. (2003) 112 CA4th 285.
According to California Practice Guide: Civil Procedure Before Trial (TRG 2018) §8:1474.5a citing Hernandez v. Sup. Ct., supra, at pg. 291-292 the required contents of a response or if necessary, a privilege log includes:
- Identifying each document for which a privilege or work product protection is claimed
- Its author
- Recipients
- Date of preparation
- Specific privilege or work product protection claimed.
Any litigator should remember that the purpose of providing the “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 you are in court and your claim of privilege is challenged, it is in your interest to make it easy for the court to understand why you withheld the document or made the redaction as it is your burden to substantiate the claim of privilege. California Practice Guide: Civil Procedure Before Trial (TRG 2018) §8:1474.5 citing Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016 )246 CA4th 566, 596-597.
Remember as well that the existence of a document containing privileged information is not privileged. A party has no right to refuse to identify every responsive document even in a response to interrogatories. TRG Civil Litigation Series: California Discovery Citations (TRG 2018) citing Best Products, Inc. v. Superior Court, supra, at 1190.
Indeed, the Second District Court of Appeal in Riddell, Inc. v. Superior Court (2017) 14 CA5th 755, 772 admonished that a party may not raise “undue burden” to avoid the statutory requirement of providing a privilege log.
In mitigation, however, a failure to provide a privilege log with a timely response where the objections are raised ARE NOT grounds to waive any privileges pursuant to Best Products, Inc. v. Superior Court, supra., at 1187..
See Rivera, Cal. Prac. Guide: Civil Procedure Before Trial FORMS (TRG 2018) Form 8:26.2 for an example of how a privilege log should look.
BEWARE: There is case law out there that says that a privilege log does not need be tendered at the time of the response and/or only if there is a court order. However, those cases predate the inclusion of paragraph C of C.C.P. §2031.240 enacted by the legislature in 2012 which does require the information to be included in the response.