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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!

The facts are very common in discovery disputes.  Petitioner served a timely response to a document request stating objections on the grounds that several e-mails were protected from discovery based on the attorney-client privilege and the work product doctrine.  Petitioner also served a privilege log.  However, the trial court ordered petitioners to produce 167 e-mails identified on their privilege log because the log failed to describe the subject matter or content of the e-mails, and therefore failed to show the e-mails were protected by either the attorney-client privilege or attorney work product doctrine.  The Court of Appeal reversed arguing the importance of the attorney-client privilege, as it “has been a hallmark of Anglo-American jurisprudence for almost 400 years.”   The court went on to point out that case law

…recognizes only three methods for waiving the attorney-client privilege:  (1) disclosing a privileged communication in a nonconfidential context (Evid. Code, § 912, subd. (a)); (2) failing to claim the privilege in a proceeding in which the holder has the legal standing and opportunity to do so (ibid.); and (3) failing to assert the privilege in a timely response to an inspection demand (§ 2031.300, subd. (a)).  (See, e.g., Lockyer, supra, 122 Cal.App.4th at p. 1073; Best Products, supra, 119 Cal.App.4th at p. 1188; Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516-1517 (Korea Data).)  Failing to serve a privilege log or serving an inadequate privilege log does not fall into any of these three methods.  (Lockyer, at p. 1074; Best Products, at p. 1189; Korea Data, at pp. 1516-1517.)

Accordingly, if a party responding to an inspection demand timely serves a response asserting an objection based on the attorney-client privilege or work product doctrine, the trial court lacks authority to order the objection waived even if the responding party fails to serve a privilege log, serves an untimely privilege log, or serves a privilege log that fails either to adequately identify the documents to which the objection purportedly applies or provide sufficient factual information for the propounding party to evaluate the objection.  (Lockyer, supra, 122 Cal.App.4th at pp. 1074-1075.

The court  found that the propounding party’s only remedy is to file a motion to compel further responses and if the court finds that

…the response and any privilege log fail to provide sufficient information to allow the trial court to rule on the merits, the court may order the responding party to provide a further response by serving a privilege log or, if one already has been served, a supplemental privilege log that adequately identifies each document the responding party claims is privileged and the factual basis for the privilege claim.  (Lockyer, supra, 122 Cal.App.4th at p. 1075; Kaiser Foundation, supra, 66 Cal.App.4th at pp. 1228-1229.)  In ordering a further response, the court also may impose monetary sanctions on the responding party if that party lacked substantial justification for providing its deficient response or privilege log.  (§ 2031.310, subd. (h).)

If the responding party thereafter fails to adequately comply with the court’s order and provide the information necessary for the court to rule on the privilege objections, the propounding party may bring another motion seeking a further response or a motion for sanctions.  At that stage, the sanctions available include evidence, issue, and even terminating sanctions, in addition to further monetary sanctions.  (§ 2031.310, subd. (i).)  

But the court may not impose a waiver of the attorney-client privilege or work product doctrine as a sanction for failing to provide an adequate response to an inspection demand or an adequate privilege log.  (Lockyer, supra, 122 Cal.App.4th at p. 1075; Best Products, supra, 119 Cal.App.4th at p. 1189 [“the statute does not include as an authorized sanction a judicial order that a privilege has been waived”]; Hernandez, supra, 112 Cal.App.4th at p. 294; Korea Data, supra, 51 Cal.App.4th at p. 1517; Blue Ridge, supra, 202 Cal.App.3d at p. 347.)