BILL ANALYSIS Ó
AB 238
Page 1
Date of Hearing: April 12, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 238 (Huber) - As Amended: April 4, 2011
PROPOSED CONSENT
SUBJECT : CIVIL PROCEDURE: DISCOVERY OBJECTIONS: PRIVILEGE LOG
KEY ISSUE : Should a party that objects to a discovery demand on
grounds of privilege or work product be required to provide
sufficient factual information in support of the objection,
including, if necessary, a privilege log?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Existing law permits a party to a civil action to obtain
discovery, as specified, by inspecting documents, tangible
items, and land or other property in the possession of any other
party to the action. The Civil Discovery Act sets forth
procedures that must be followed when the responding party
objects to part or all of an inspection demand. If the
responding party objects to the demand for specific items, then
existing law requires the responding party to identify those
items with some particularity and state the specific ground for
the objection. Existing law also permits the requesting party
to make a motion to compel further response if the explanation
of the objection is inadequate. Although a "privilege log" is
not expressly required or defined in statute, California
appellate courts have held that, if the responding party objects
to a demand on the basis of a privilege claim, a court may
require the objecting party to produce a "privilege log," which
should contain information that is "sufficiently specific to
allow a determination of whether each withheld document is or is
not in fact privileged." However, the courts have also held
that such a privilege log is not automatically required as part
of the response. This non-controversial bill would effectively
codify that case law by expressly stating that, where an
objection is based on a claim of privilege or work product, the
responding party shall provide sufficient factual information in
support of the claim, including, if necessary, a privilege log.
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(The term "privilege log" applies - both in practice and in this
bill - whether the claim is based on privilege or work product.)
This bill is sponsored by the Conference of California Bar
Associations. There is no known opposition to this
non-controversial bill.
SUMMARY : Amends the Civil Discovery Act to expressly require a
responding party, when that party objects to a discovery demand
on the basis of a claim of privilege or work product, to provide
sufficient factual information in its response for other parties
to evaluate the merits of that claim, including, if necessary, a
privilege log.
EXISTING LAW :
1)Permits a party to a civil action to obtain discovery, as
specified, by inspecting documents, tangible things, and land
or other property in the possession of any other party to the
action. Sets forth the procedure that a demanding party must
follow in making a demand, including the contents of the
demand and the manner of serving notice on the responding
party. (Code of Civil Procedure section 2031.010-2031.040.)
2)Provides that, when an inspection of tangible things,
documents, or places has been made, the responding party (or
any other party affected) may move for a protective order; if
good cause is shown the court may make an order to protect any
party from unwarranted annoyance, embarrassment, oppression,
or undue burden and expense. (Code of Civil Procedure section
2031.060.)
3)Provides that the responding party shall respond separately to
each item or category demanded by one of the following:
a) By a statement that the party will comply with the
demand;
b) By stating that the party is unable to comply; and
c) By an objection to the demand. (Code of Civil Procedure
section 2031.210.)
4)Provides that, if the responding party objects to the
inspection demand, the response shall do both of the
following:
a) Identify with particularity any document, tangible
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thing, or land falling within any category of item in the
demand to which the party is objecting; and
b) Set forth clearly the extent of, and specific ground
for, the objection. (Code of Civil Procedure section
2031.240(b).)
5)Provides that, if the objection is based on a claim of
privilege, the particular privilege invoked must be stated.
(Code of Civil Procedure section 2031.240(b)(2).)
6)Provides that the demanding party, on receipt of a response to
his or her demand, may move for an order compelling further
response to the demand if the demanding party deems that any
of the following apply:
a) A statement of compliance with the demand is incomplete;
b) A representation of inability to comply is inadequate,
incomplete, or evasive; or
c) An objection in the response is without merit or too
general. (Code of Civil Procedure section 2031.310(a).)
7)Provides that, if the responding party objects to a demand on
the basis of a privilege or work-product claim, the court may
require the objecting party to produce a privilege log, with
information that is "sufficiently specific to allow a
determination of whether each withheld document is or is not
in fact privileged." However, a responding party is not
automatically required to produce a privilege log. (Wellpoint
Health Networks, Inc. v. Superior Court, 59 Cal.App.4th 110,
129-130 (1997); Best Product Inc. v. Superior Court, 119
Cal.App.4th 1181, 1188-1190 (2004).)
COMMENTS : The California Civil Discovery Act (Act) sets forth
the procedures by which parties to a civil action obtain
"discovery" by demanding that another party make certain
relevant documents, tangible things, land, and other property
available for inspection. Under the Act, a party may obtain
discovery concerning any matter that is relevant to any pending
action or any motion made in that action, so long as the matter
is not privileged. A responding party, however, may object to
the discovery of specific requested items (or any part of an
item) so long as its response identifies the item with
particularity and clearly sets for the grounds of the objection.
If these grounds are not satisfactory to the requesting party,
it may move for an order compelling further response. For
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either the original response or the "further response" compelled
by motion, the court may require the responding party to provide
a so-called "privilege log." Although a "privilege log" is not
mentioned let alone defined in the Act, the term is used by
courts and attorneys to describe the requirement that the
responding party provide a specific factual description of
documents sufficient to substantiate a claim of privilege or
work product in connection with a request for document
production. (According to a representative of the State Bar,
the term "privilege log" is used whether the claim is based
privilege or work product.) The purpose of providing a specific
factual description of documents is to permit a judicial
evaluation of the claim of privilege. (Best Product v. Superior
Court (2004) 119 Cal. App. 4th 1181, 1188.) Presumably, parties
can voluntarily agree on whether a privilege log is necessary,
and if so, the kinds of information that it must contain. (See
e.g. Code of Civil Procedure Sections 2016.030.) Any effort to
obtain a privilege log through a motion for "further response"
would need to be supported by a "meet and confer declaration"
showing that the parties had attempted an informal resolution.
(Code of Civil Procedure Section 2031.310 (b)(2).)
Existing case law already gives a court the ability to order a
privilege log if it deems it necessary, but a responding party
is not automatically required to include one in the response and
explanation required under Code of Civil Procedure Section
2031.240 (b). For example, the Second District Court of Appeal
held that a trial court could direct a responding party to
include a privilege log as part of the required response that
identifies the specific items that are the subject to the
objection. (Wellpoint v. Superior Court (1997) 59 Cal App. 4th
110, 129-130.) In Best Product v. Superior Court (2004) the
same court held that a privilege log was not "automatically"
required where a responding party claimed that items demanded in
discovery were privileged. (Best Product, supra at 1188-1189.)
In short, these two opinions taken together suggest a general
rule that the court may order a privilege log either as part of
the responding party's preliminary response identifying
objections, or at the subsequent stage of the discovery process
if the requesting party moves for further responses. Yet, it
appears that at neither stage is a privilege log automatically
required. (Note: These two cases interpreted Code of Civil
Procedure Sections 2031 (g) and (m), the provisions of which
were renumbered as Sections 2031.240 and 2031.310, respectively,
in 2005.)
AB 238
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Arguments in Support : According to the author, this
straight-forward legislation will bring a needed measure of
clarity by codifying the case law and expressly stating that a
responding party claiming privilege or work product must provide
"sufficient factual information" in its response - including, if
necessary a privilege log - so that the court and the other
party or parties may properly evaluate the merits of the claim.
The Conference of California Bar Associations, the bill's
sponsor, adds:
The purpose of discovery in litigation is to promote the
fullest possible exchange of information consistent with
privilege and constitutional protections, to facilitate
the resolution of disputes. AB 238 is intended to improve
this process by providing needed guidance and certainty to
both litigants and courts regarding documents that are
subject to a privilege claim, and by encouraging
cooperation between the parties.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (sponsor)
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334