Perils Of Privilege Logs - How To Open Relations And Avoid Unnecessary Work Forum Column
by: Richard M. Coleman, Esq.
©The Daily Journal Corporation
X Corp. responded to Y Co.'s demand for production by asserting objections. It did not base any objection on the grounds of privilege, but stated:
"X Corp. will produce all of its unprivileged Project documents which contain specific reference to labor, equipment and materials which X Corp. provided in the course of its work on the Project."
Y. Co. did not move to compel further response, but accepted the offer to comply.
Y Co. was not satisfied with the production and brought a motion to compel further response.
Y Co. contended that it was entitled to ignore the word "unprivileged" in the response because X Corp. had not complied with the Code requirements in asserting privilege. Y Co. demanded that X Corp. produce all documents within the category without regard to privilege, or, in the alternative, if X Corp.'s privilege claim be upheld, that it be ordered to produce a legally sufficient privilege log.
X Corp. contended that it had complied with its statement that it would produce "all of its unprivileged documents," and it had made its offer of compliance on its own terms, relying on two Code of Civil Procedure sections.
CCP Section 2031.220: "A statement that the party ... will comply with the particular demand shall state that the production ... will be allowed either in whole or in part, and that all documents ... in the demanded category ... to which no objection is being made will be included in the production."
CCP Section 2031.320 (a): "If a party ... thereafter fails to permit the inspection in accordance with that party's statement of compliance, the party demanding the inspection may move for an order compelling compliance."
X Corp. contended if Y Co. was not satisfied with the statement of compliance, it should have moved to compel further response. Since Y Co. did not do so, it must accept the statement of compliance as worded. X Corp. claimed it had "voluntarily" produced a legally sufficient privilege log.
Y. Co. argued that the proffered privilege log did not meet CCP Section 2031.240(b)(1) requirement for particularity of description.
CCP Section 2031.240(b)(1) provides that the respondent: "Identify with particularity any document ... to which an objection is being made...." [Emphasis added.]
The proffered log did not identify to what demand the privilege was being asserted and did not identify any single document or date, but lumped whole groups of documents without differentiation among them, such as "X Corp. bid and change order pricing calculation materials."
What would be your recommended ruling? The recommended ruling was as follows:
Granted based on the moving papers as set forth herein. The referee finds:
X did not properly invoke privilege.
Y, if dissatisfied with the offer of compliance, should have moved to compel further responses.
Y has a right to compel X's compliance with X's offer of compliance.
X, to comply with its offer to produce "all unprivileged Project documents," must produce a legally sufficient privilege log so that Y may test that "all unprivileged Project documents" have in fact been produced.
X's proffered privilege log is not legally sufficient.
X is ordered to produce the documents in accordance with its offer and CCP Section 2031. 220 and to produce a legally sufficient privilege log.
What is required of a privilege log? Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 291. "Privilege log must identify each document for which a privilege is claimed, identifying the particular document, its author, recipient, date, the specific privilege claimed, the location of the document and the demand to which the privilege is asserted; if the privilege claimed is the attorney client privilege, a declaration shall be submitted containing the facts [without revealing the content of the document] upon which the claim of attorney client privilege is based. [CCP Section 2031.240 (b)]
X is further ordered to clarify to what set of demands the documents are responsive.
Do parties have to meet the Hernandez standard for ordinary correspondence between attorney and client? That is, must every letter be listed with date, author, recipient, etc.?
The answer appears to be "Yes" as no exception is made in either the statute or the case.
Suggestion: Reach stipulated agreement with all counsel that the parties may simply state a general description, such as "correspondence between client and counsel 2004 - present." All parties benefit from avoiding unnecessary work.
Moreover, it offers an opportunity to open relations with the adverse party with an agreement. Who knows, maybe cooperation begun here will continue to set the tone for the rest of the case.
Richard M. Coleman, a Fellow of the American College of Trial Lawyers and former president of the Los Angeles County Bar Association, is a mediator with Alternative Resolution Centers [ARC] who also serves as discovery referee. He is on the faculty of Pepperdine’s Straus Institute for Dispute Resolution.
copyright © By Richard M. Coleman, Esq.