Monday, December 28, 2015

Towards an Ever More Perfect Privilege Log

Catalina Island Yacht Club v. Superior Court, No. G052062 (D4d3 Dec. 4, 2015)

Can you tell the difference between a privilege log that needs more detail and a privilege log that fails to substantiate a prima facie claim of the attorney-client privilege? At the extremes, it’s probably not too hard. But most of the time in practice it’s a gray, gray area. Which is what makes this opinion potentially troublesome. 

The case is a beef over membership in a yacht club in Catalina. In response to plaintiff’s RFPs, the Club asserted attorney-client privilege over seventeen documents. The Club’s first privilege log—produced two months after its responses—was useless. It stated only the date of each document and generically that it was a communication between the Club and its attorneys. The excommunicant moved to compel, which the Club mooted out by agreeing to include the actual to/from names for the communications. But still nothing at all about content. And there were suddenly fifteen new documents. Another motion, this time for sanctions. And again the log gets revised, adding cc’s and more dates. Still nothing at all about the content. By then the volume of logged docs was over 150.

By this point, the whole privilege log nonsense had been drifting along for more than a year. Plaintiff moved to compel 167 docs, on the grounds that privilege was waived by the repetitively insufficient logging and that, in any event, the club couldn’t substantiate a prima facie claim of privilege over these docs. The Club opposed, arguing that the most the court could do would be to order yet another log. The court granted the motion and ordered the docs produced. The Club took a writ.

After some throat clearing about the importance of the attorney-client privilege as a pillar of western civilization, the Court of Appeal grants the writ. It relies on three earlier cases—cases decided before the privilege log requirement was codified in Code of Civil Procedure § 2031.240—that hold a forced waiver of privilege is not an appropriate remedy for a responding party’s failure to timely provide a privilege log. See People ex rel. Lockyer v. Superior Court, 122 Cal. App. 4th 1060, 1072 (2004); Best Prods., Inc. v. Superior Court, 119 Cal. App. 4th 1181, 1188 (2004); Korea Data Sys. Co. v. Superior Court, 51 Cal. App. 4th 1513, 1516 (1997).

The court goes on to suggest that even if the motion was framed as a motion to compel because the log didn’t make a prima facie case for the privilege to apply, the moving party’s only recourse is to move under § 2031.310 for a better log. But an order compelling the production of documents because they are insufficiently logged is, to the court, a “forced waiver,” unauthorized by the Evidence Code or the Discovery Act. Thus, as in Lockyer, Best Products, and Korea Data, the only remedy available to moving party or the court was to odder the club to make (yet another) more detailed log. And maybe sanctions. Good luck on that.


This opinion is a potential recipe for mischief that could have the practical result of making it almost practically impossible to defeat meritless privilege assertions. And the court didn’t really need to go there.

The general principle the opinion rests on—that a judicially compelled waiver is not a remedy for an inadequate or untimely privilege log—is not particularly troublesome. In the three cases cited in the opinion, it makes sense. In those cases—all decided before the privilege log requirement was codified by § 2031.240—the resisting party made a boilerplate objection on privilege grounds, but either did not provide a log at the time of the objection, see Best Prods., 119 Cal. App. 4th at 1186; Korea Data, 51 Cal. App. 4th at 1515, or provided a log that was basically useless, see Lockyer; 122 Cal. App. at 1066. In each case, the trial court found that the failure to provide a timely log waived the privilege under then § 2031(l) (since recodified at § 2031.300(a))

Each case held that a boilerplate general objection in an original response was sufficient to preserve the privilege against waiver, even in the absence of an adequate log. Lockyer; 122 Cal. App. at 1074; Best Prods., 119 Cal. App. 4th at 1189; Korea Data, 51 Cal. App. 4th at 1517. Each case further found that a failure to provide an adequate and timely log was not a proper grounds for the court to find that the attorney client privilege was waived, because there are limited statutory bases for waiver and a late or inadequate log isnt one of them. Lockyer, 122 Cal. App. at 1073; Best Prods., 119 Cal. App. 4th at 1188; Korea Data, 51 Cal. App. 4th at 1517. Lockyer and Best Products go on to say that even had the propounding party moved to compel further responses under § 2031(m)—since recodified at § 2031.310—instead of seeking a waiver under 2031(l), the most that the court could do in granting such a motion would be to order the responding party to produce a better log, along with any appropriate sanctions, but not a forced waiver. Best Prods., 119 Cal. App. 4th at 1189; Lockyer; 122 Cal. App. at 1075.

All fair points. But the Code provides for an additional type of motion to compel document productions. There are the waiver for failure to respond under § 2031.300(a)—at issue in the cases cited by the courtand § 2031.310’s motion to compel further responses—the motion under former § 2031(m) mentioned in Lockyer and Best Products. But there’s also a motion to compel compliance under § 2031.320. None of Lockyer, Best Products, and Korea Data are addressed to that third motion (at the time was codified at § 2031(n)). No doubt, moving under § 2031.310 is procedurally appropriate when you want to complain about a log or compel the objecting party to make a better one. But since the responses and objections will say something to the effect of, “we will produce responsive non-privileged documents” a § 2031.320 motion seems appropriate to compel a party to produce documents that you contend aren’t actually privileged.

In that case, the log shouldn’t really matter. When faced with a challenge to an assertion of the attorney client privilege, as with any privilege, the party invoking it bears the burden of proving a prima facie case that the privilege does, in fact, apply. See Costco Wholesale Corp. v. Superior Court, 47 Cal. 4th 725, 733 (2009); San Diego Prof’l Ass’n v. Superior Court, 58 Cal. 2d 194, 199 (1962). That burden needs to be satisfied with evidence, not a just pleading like discovery objections or a privilege log. See State Farm Fire & Cas. Co. v. Superior Court, 54 Cal. App. 4th 625, 640-41 (1997) (“As previously noted, it is the duty of the party asserting the privilege to present evidence which establishes the existence of a communication that falls within the privilege.”); see also Evid. Code § 405, adv. cmte. notes; 1 Paul Rice, et al., Attorney-Client Privilege: State Law, California §§ 11:11, 11:12 (2015 online ed.). When a § 2031.320 motion to compel compliance is filed, the issue should be whether the proponent can actually sustain a prima facie case for the privilege, not whether the log is adequate. A log, after all, it is just a tool to facilitate discovery. It is not sworn testimony or any other kind of evidence that could be used by the party claiming privilege. 

So if the moving party takes that tack, the ruling it seeks is not addressed to the sufficiency of the log. It is about, instead, whether the document is actually privileged. On that motion, either claiming party meets its burden, or it doesn’t. Contrary to what the court intimates here, an order granting that motion is not—as in Lockyer, Best Products, or Korea Data—some kind of a forced waiver to punish an insufficient log. It is, instead, a finding that the party claiming the privilege hasn’t sustained its burden of proof, i.e., a ruling on the merits that the document is not privileged.

Otherwise, the privilege question gets caught up in this wasteful and potentially endless loop about the sufficiency of the log. The court here does suggest that there will come a point where the log is good enough to rule on the merits. But the line between a log that (if supported by evidence) is insufficient to meet the claiming party’s burden and a log that is too shoddy to provide a basis make a ruling is far too fine a conceptual distinction to work in the real world. It is thus unsurprising that the court here makes no effort to explain how and when the claiming party has “provide[d] sufficient information to permit the court to determine whether the asserted privilege protects specific documents from disclosure.” And in any event, unduly focusing on the sufficiency of the log  effectively ignores moving party’s right to put the claimant to the actual burden of evidentiary proof to substantiate a claim of privilege.

The procedural availability of different motions with different remedies also makes practical sense. For many reasons, it is exceedingly difficult to defeat even a bogus assertion of the attorney client privilege in state court. In practice, the privilege is particularly broad in California, while the waiver rule and exceptions are narrow. The claiming party needs to show quite little to merit a presumption of privilege. See Evid. Code § 917(a). And the court isn’t allowed to order in camera review. Costco, 47 Cal. 4th at 737–38. Practically speaking, to beat back an assertion of privilege, you generally need: (1) evidence outside the four corners of the log, such as deposition testimony; (2) a mistake by the other side that reveals an unjustified claim; or (3) luck. Sometimes all three. Given that, it could make sense as a tactical matter that before challenging the merits of the privilege, a party might want to move to get a better log. Maybe even more than once. Section 2031.310 affords that option.

At the end of the day, however, a party faced with a privilege assertion should have the right to call the bet by moving under § 2031.320. At that point, the party claiming the privilege needs to put up or shut up, with evidence. No hiding behind a claim that if only the log were even better, this time the privilege would be clear. Indeed, a moving party should prevail under § 2031.320 when  the log is sufficient but the evidence isn’t or both the log and the evidence are insufficient, but should lose even when the log is bad so long as the evidence is enough. (Perhaps in the latter case some non-waiver sanction would be appropriate.) Of course, by taking this track, the challenging party foregoes the ability to get more evidence that might later break the privilege. And if it loses without substantial justification, it also faces the standard discovery sanctions under § 2031.320(b).

But without both options, the dispute—like the one in this case—just gets mired in endless rounds of “can the log be better?” In most busy city courts in California, it can take three to six months to get a single discovery motion briefed and decided. So under the approach that the court here suggests is required, you wind up burning a year or more fighting about whether the other side’s privilege log is good enough. (Which is exactly what happened in this case.) That doesn’t make practical sense, it’s bad policy, and by no means is it compelled by the text of the Discovery Act or the general rules regarding privilege litigation in California.

Finally, I should say that in all fairness to the Court of Appeal here, the form the excommunicated plaintiff’s motion took in the trial court appears unclear. And most of the briefs aren’t online. Plaintiff apparently argued that the court should order the Club “to produce the e-mails because Petitioners failed to present sufficient evidence to establish the e-mails were confidential attorney-client communications or work product.” That sounds like a § 2031.320 motion. But maybe he was trying to litigate the merits of the privilege on a motion brought under § 2031.310’s motion for further responses? Or actually to force a waiver under § 2031.300(a)? Or maybe he just got around to reading Lockyer, Best Products, and Korea Data when he got the Clubs writ and then tried to reframe the trial courts waiver-based ruling on appeal? If any of these is the case, this decision makes a lot more sense. That would also render the opinion properly distinguishable had a motion been properly brought under § 2031.320.

In any event, given that it addresses an important rule regarding how the attorney-client privilege is raised, substantiated, and adjudicated, this case seems like a good companion for review alongside County of L.A. Bd. of Supervisors v. Superior Court. No petition is on file yet, but the excommunicant has till January 14 to get one in. 

Until then, perhaps some more yacht rock is in order.

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