AN INADEQUATE PRIVILEGE LOG, OR EVEN THE FAILURE TO SERVE A PRIVILEGE LOG, WILL NOT RESULT IN THE WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE OR WORK PRODUCT PROTECTION TIMELY ASSERTED IN DISCOVERY RESPONSES
June 28 2017
In Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, the California Court of Appeal (Fourth District, Division Three), squarely addressed the question: “May a trial court find a waiver of the attorney-client privilege and work product doctrine when the objecting party submits an inadequate privilege log that fails to provide sufficient information to evaluate the merits of the objections?” The answer, “No.” Id. at 1120.
In Catalina, Defendants in the underlying matter served responses to Plaintiff’s requests for production of documents that included boilerplate objections asserting the attorney-client privilege and work product protection. Two months later, Defendants served a deficient privilege log identifying 17 “communications.” The log simply provided the date of the communication and stated it was between “counsel for Defendants and Defendants.” A few months later, Defendants served a supplemental privilege log increasing the number of withheld documents from 17 to 36, and identifying the parties to the communications which were email. And, four months later Defendants served yet another supplemental privilege, this time significantly increasing the withheld communications from 17 to 167 log and purporting to identify the parties to each email and the date. Id. at 1122.
Plaintiff filed a motion to compel seeking the production of all 167 identified on Defendants’ production log, arguing that Defendants waived the attorney-client privilege and work production protection by failing to timely serve a privilege log that provided sufficient factual information to enable Plaintiff to evaluate the merits of Defendants’ objections. The trial court agreed, and ordered Defendants to produce the 167 email. In doing, it found that Defendants’ privilege was not untimely but failed to show that that email were privileged or protected. Id. at 1123.
On a writ of mandate filed by Defendants, the Court of Appeal vacated the trial court’s order compelling production of the email. The Court of Appeal explained that attorney-client privilege and work product protection objections are preserved by serving timely written discovery responses asserting such objections. It is irrelevant that the objections are asserted as part of boilerplate responses, or that responding party fails to serve a timely or sufficient privilege log. Once timely asserted, a trial court may not deem the objections waived based on any deficiency in the response or privilege log. Id. at 1129.
When a party submits a deficient privilege log, a trial court may order that party to provide a further privilege log that includes the necessary information to rule on an asserted attorney-client privilege and work product protection objection, and it may impose monetary sanctions and evidence, issue, and even terminating sanctions if a responding party persists in failing to provide the court with the requested information. However, a trial court may not order that privileges are waived because of a deficient privilege log, or for even failing to serve a privilege log. Id. at 1120.