Most discovery disputes involve requests for production of documents. This is because there are specific requirements for a party to properly respond to the request which has been the subject of many of my blogs, including a responding party’s obligation to state whether the documents you are seeking ever existed and where they are now as well as which request the documents being produced are responsive. However, there is nothing more combative in discovery than parties arguing over objections to a document request and the adequacy of the privilege log–assuming one was even provided.
To begin, in responding to the document request, a party is obligated to list the documents in a privilege log that are being withheld on the claim of privilege. C.C.P. §2031.240. According to Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:1474.5a, citing Hernandez v. Sup. Ct. (2003) 112 CA4th 285, pg. 291-292, the required contents of a response, or if necessary, a privilege log, include:
- Identifying each document for which a privilege or work product protection is claimed
- Its author
- Recipients
- Date of preparation
- Specific privilege or work product protection claimed.
The purpose of the responding party providing a “privilege log” is to provide a specific factual description of documents in aid of substantiating a claim of privilege especially for judicial review. See Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 CA4th 110, 130 and Best Products, Inc. v. Superior Court (2004) 119 CA4th 1181. If the claim of privilege is challenged, it is in responding party’s best interest to make it easy for the court to understand why the document was withheld or made the redaction to substantiate the claim of privilege. California Practice Guide: Civil Procedure Before Trial (TRG 2023) §8:1474.5 citing Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016 ) 246 CA4th 566, 596-597.
In resolving the issue of whether or not a document is privileged and shouldn’t be disclosed, the court may rule on the objection based on the contents of the privilege log–assuming the privilege log is adequate enough for the court to make such a determination. Pursuant to CRC, Rule 2.585 the court also has the ability to take the documents being withheld in-camera to determine whether the documents are privileged or discoverable. If the documents are voluminous, many courts will appoint a Discovery Referee pursuant to C.C.P. §639(a)(5) to perform the in-camera review. Below is the current status of the law as what claimed privileged documents can be reviewed by the court in camera.
ATTORNEY CLIENT PRIVILEGE
Communications between client and counsel are usually privileged against discovery. See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:146 et seq. However, the court cannot review the documents in camera to determine whether the attorney-client privilege is applicable. Ev.C. §915, Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 736-737, Jefferson’s California Evidence Benchbook (CEB 4th Ed. 2014) §37.29, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8.199.12. As discussed above, the privilege log must be descriptive enough for the court to...
