Daily Blast December 4, 2015

The California Court of Appeal, Fourth Appellate District, Division Three (Orange County), issued an opinion in Catalina Island Yacht Club v. Superior Court (Dec. 4, 2015, G052062) ___ Cal.App.4th ___, analyzing whether a trial court may find “a waiver of the attorney-client privilege and work product doctrine when the objecting party submits an inadequate privilege log that fails to provide sufficient information to evaluate the merits of the objections.” (Slip opn., p. 2.) The Court of Appeal held that the trial court “may not order the privileges waived based on deficiencies in the privilege log because serving a deficient privilege log, or even failing to serve a privilege log, is not one of the three statutorily-authorized methods for waiving the attorney-client privilege.” (Ibid.)

Plaintiffs sued defendant for defamation and related causes of action. (Slip opn., p. 3.) Discovery disputes ensued over documents identified in a privilege log as privileged pursuant to the attorney-client privilege and the work product doctrine. (Id. at pp. 4-5.) The trial court compelled production of the documents finding that the information supplied by the privilege log was insufficient to show the entries were protected by the attorney-client privilege or the work product protections. (Id. at p. 5.)

The Court of Appeal issued a writ of mandate directing the trial court to vacate its order compelling production of the documents and to issue a new order compelling defendant to produce a supplemental privilege log identifying each document with particularity and provide sufficient factual information. (Slip opn., p. 16.) The appellate court determined that if a privilege log fails to provide sufficient information to allow the trial court to rule on the merits, the trial court may order the responding party to provide a further response by serving a privilege log or supplemental privilege log that adequately identifies each document the responding party claims is privileged and the factual basis for the privilege. Further, “in ordering a further response, the court may impose monetary sanctions on the responding party if that party lacked substantial justification for providing its deficient response or privilege log.” (Id. at p. 10.) The court may not, however, impose a waiver of the attorney-client privilege or work product doctrine as a sanction for failing to provide an adequate response to a demand for documents or an adequate privilege log. (Id. at pp. 10-11.) The court explained that “a responding party preserves its objections based on the attorney-client privilege and work product doctrine by serving a timely written response asserting those objections. It is irrelevant that the objections are asserted as part of a generic or boilerplate response, or that the responding party failed to serve a timely and proper privilege log. Once the objections are timely asserted, the trial court may not deem them waived based on any deficiency in the response or privilege log.” (Id. at p. 13.)