BILL ANALYSIS Ó
AB 1354
Page 1
Date of Hearing: January 10, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1354 (Huber) - As Amended: January 4, 2012
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 seek 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
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provide sufficient factual information in support of the claim,
including, if necessary, a privilege log. This bill is
identical to AB 238 (Huber), 2011, which passed this Committee
and the Assembly without a "No" vote, before being amended to
address motor vehicle sales contracts in the Senate. This bill
is supported by the Conference of California Bar Associations
and the Consumer Attorneys of California and has no known
opposition.
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 Sections 2031.010-2031.040.
Unless otherwise stated, all further statutory references are
to that code.)
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. (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. (Section 2031.210.)
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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
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. (Section 2031.240(b).)
5)Provides that, if the objection is based on a claim of
privilege, the particular privilege invoked must be stated.
(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. (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,
129-30 (1997); Best Product Inc. v. Superior Court, 119
Cal.App.4th 1181, 1188-90 (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
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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 forth 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 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
Conference of California Bar Associations, 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.
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 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
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party moves for further responses. Yet, it appears that at
neither stage is a privilege log automatically required. (Note:
These two cases interpreted Sections 2031(g) and (m), the
provisions of which were renumbered as Sections 2031.240 and
2031.310, respectively, in 2005.)
According to the author, this 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.
This bill is identical to AB 238 (Huber), 2011, which passed
this Committee and the Assembly without a "No" vote, before
being amended to address motor vehicle sales contracts in the
Senate. This bill is also similar to AB 578 (Huber), 2009,
which dealt in greater detail with privilege logs. That bill
passed this Committee and the Assembly, also without a "No"
vote. That bill was considered by the author to be a "work in
progress" and was not moved in the Senate.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations
Consumer Attorneys of California
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334