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Objections Not Waived Due To Service Of An Inadequate Or Untimely Privilege Log, Or Even A Failure To Serve One All Together

January 25, 2016 | Topics: Business Litigation, Product Liability

The California Court of Appeal recently held that timely, albeit boilerplate, objections based on the attorney-client privilege and work product doctrine are adequate to preserve those objections, and a trial court lacks authority to order those objections waived based on a responding party’s failure to serve an adequate privilege log, a timely privilege log, or any privilege log at all.

In Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, plaintiff Timothy Beatty (“Beatty”) was a member of defendant Catalina Island Yacht Club (“Yacht Club”) and its board of directors until he was removed from the board and his membership in the Yacht Club was suspended.  After Beatty brought suit against the Yacht Club and various individual defendant board members (collectively, “Defendants”), a discovery dispute arose concerning inspection demands that Beatty served seeking written communications and other documents relating to his removal and suspension.  Defendants initially responded to the demand by serving boilerplate objections based on the attorney-client privilege and work product doctrine, followed by a barebones privilege log two months later.  Defendants thereafter served a number of supplemental privilege logs that included some additional information, but the trial court eventually granted Beatty’s motion to compel the production of 167 e-mails identified in Defendants’ most recent privilege log.  The trial court held that “[a]lthough not untimely, the information supplied by the privilege log produced by [Defendants] is insufficient to show the entries therein are protected by either the attorney-client or work product protections.” 

The Court of Appeal reversed, finding that there were only three methods for waiving the attorney-client privilege:  (1) disclosing a privileged communication in a nonconfidential context, (2) failing to claim the privilege in a proceeding in which the holder has the legal standing and opportunity to do so, and (3) failing to assert the privilege in a timely response to an inspection demand.  The Court held that failing to serve a privilege log or serving an inadequate privilege log did not fall into any of those three methods, and therefore Defendants’ timely written response asserting boilerplate objections based on attorney-client privilege and work product doctrine was adequate to preserve those objections.  The Court rejected Beatty’s argument that the 2012 amendment to section 2031.240, which states a party shall provide a privilege log if necessary to evaluate the merits of a claim of privilege, authorized the trial court to find Defendants waived their privilege objections.  The Court held that the plain language of the 2012 amendment made clear it should not be construed to constitute a substantive change in case law.

Litigants must still be cautious, however, when withholding documents based on generic claims of attorney-client privilege or work product doctrine.  The Catalina Island court made clear that a trial court faced with a deficient response might order the responding party to provide a privilege log or supplemental privilege log, as well as impose monetary sanctions if there was no substantial justification for providing the deficient response or privilege log.  If the responding party thereafter fails to adequately comply, the propounding party may bring another motion and the sanctions available at that stage include evidence, issue, and even terminating sanctions, in addition to further monetary sanctions.