Alert - What Constitutes a Proper "Privilege Log"

March 4, 2016
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One of the most confusing and frustrating aspects of discovery in civil litigation is the “privilege log” requirement.  This requirement is part of California Civil Code Section 2031.  Section 2031.010 allows “any party” to obtain discovery from “any other party” by “inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information” in a party’s possession, custody, or control.  Unlike interrogatories, there is no limit on the number of inspection demands a party can impose.  In addition, under section 2031.050 a party can later serve supplemental demands to obtain any later acquired or discovered documents, and can do so twice before the initial setting of a trial date and once thereafter.  
In responding to these demands, a party who believes that the demands call for the production of privileged information may not simply state that privileged documents will not be produced.  Instead, section 2031.240 requires that for each such document, the responding party must “[i]dentify 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 lodged” (§ 2021.240(b)(1)) and “[s]et 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” (§ 2031.240(b)(2)).  In addition, if an objection is based on a claim of privilege, the response also must “provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log”  (§2031.240(c)(1)).  
The “privilege log” developed as a somewhat efficient means of setting forth the documents being withheld and the privileges that applied.  However, litigants have to perform a delicate balancing act in order to comply with the discovery code sections without waiving applicable privileges under the Evidence Code.  Evidence Code Section 912 states that a privilege holder waives a privilege if it “has disclosed a significant part of the communication or has consented to disclosure made by anyone.”  This means that objecting parties must provide sufficient information for other parties (and courts) to evaluate the claim without disclosing a “significant part” of the communication.  Disclose too much and the privilege is waived; disclose too little and the responding party may be sanctioned for failure to comply with § 2031.  
The Court of Appeal for the Fourth District (Division 3) recently addressed the issue of what constitutes a “proper” disclosure under Section 2013 in Catalina Island Yacht Club v. Superior Court, 242 Cal.App.4th 1116 (2015).  Catalina Island Yacht Club involved a lawsuit brought by a former Board member (the “Plaintiff”) against the Club and the other Board members (collectively “the Defendants”), alleging his unjust ouster from the Board and stating causes of action for libel, slander, invasion of privacy and intentional infliction of emotional distress.  The Plaintiff served inspection demands.  In response, the Defendants responded by objecting and providing a privilege log that identified the documents withheld and stated that the basis for withholding was that the documents reflected communications between the Defendants and counsel.  While this log did not constitute disclosure of a “significant” part of the communications under Evidence Code Section 912, the Court of Appeal also held that it was insufficiently specific to permit a judicial evaluation of the claim of privilege.  The Court provided only general guidance as to the details of a proper privilege log:  
The precise information required for an adequate privilege log will vary from case to case based on the privileges asserted and the underlying circumstances. In general, however, a privilege log typically should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document's date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted.
 
Catalina Island Yacht Club v. Superior Court, 242 Cal. App. 4th 1116, 1130, 195 Cal. Rptr. 3d 694, 704 (2015) .  
At what point does a “brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies” become a disclosure of “a significant part of the communication”?  The Court in Catalina Island Yacht Club does not answer this specific question.  As a practice tip, however, we suggest that parties always err on the side of less specificity;  Catalina Island Yacht Club also holds that a deficient privilege log does not waive the underlying privileges being asserted, and that the remedies for a deficient privilege log include “ordering further responses and imposing sanctions if the responding party acted without substantial justification in providing a deficient response or privilege log.”  Neither of these penalties will devastate a case as much as a waiver of privilege. 
Your Buchman Provine Brothers Smith LLP attorneys have extensive experience with discovery and privilege logs, and can provide valuable guidance and assistance in this regard.
Authored by:
Horace W. Green, Esq.
T: (925) 944-9700
hgreen@bpbsllp.com
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