BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1354 (Huber)
As Amended January 4, 2012
Hearing Date: July 3, 2012
Fiscal: No
Urgency: No
RD
SUBJECT
Civil Procedure: Discovery Objections: Privilege Logs
DESCRIPTION
This bill would require that if a party makes an objection based
on a claim of privilege or a claim that the information sought
is protected work product, the response must include sufficient
factual information for other parties to evaluate the merits of
that claim and, if necessary, produce a privilege log.
BACKGROUND
The Civil Discovery Act sets forth the procedures by which
parties to a civil action obtain "discovery." (See Code of Civ.
Proc. Sec. 2017.010 et seq.) Under that Act, any party may
obtain discovery regarding any matter, not privileged, that is
relevant to the subject matter involved in the pending action or
to the determination of any motion made in that action, if the
matter either is itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible
evidence. One way in which a party may obtain discovery is
through inspections of documents, things, and places. At the
same time, a party has the right to object to a discovery demand
on the basis of a privilege or work product in certain
circumstances.
In 2009, AB 578 (Huber) was introduced, seeking to authorize the
party making a discovery demand to move for an order to require
the responding party to produce a "privilege log" if the
responding party objects on the basis of privilege or work
product, as specified. That bill, among other things, attempted
(more)
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to define the term and would have also required the court to
order the party claiming the privilege to prepare and serve a
privilege log according to the terms and conditions deemed
appropriate by the court, if the court, in its discretion,
determined that a privilege log is necessary in order to
determine the validity of the claim. The bill was not moved out
of this Committee.
Last year, the author introduced AB 238 (Huber, 2011), a bill
that is identical to the current bill, after working extensively
to address issues raised by the previous version of this bill
with numerous groups, including the Judicial Council, Consumer
Attorneys of California (CAOC), California Judges Association,
State Bar, California Defense Counsel, and Civil Justice
Association. These groups were neutral on the version of the
bill that came to this Committee for review, but the bill was
subsequently gutted and amended into a bill on motor vehicle
conditional sale contracts.
This bill would expressly require a responding party who 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.
CHANGES TO EXISTING LAW
Existing law , the Civil Discovery Act, provides procedures by
which parties to a civil action conduct and obtain "discovery."
(Code Civ. Proc. Sec. 2017.010 et seq.)
Existing law provides that, unless otherwise limited by court
order in accordance with the Civil Discovery Act, any party may
obtain discovery regarding any matter, not privileged, that is
relevant to the subject matter involved in the pending action or
to the determination of any motion made in that action, if the
matter either is itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible
evidence. (Code Civ. Proc. Sec. 2017.010.)
Existing law provides that no person has a privilege to refuse
to be a witness; refuse to disclose any matter or refuse to
produce any writing, object, or thing unless otherwise provided
by statute. (Evid. Code Sec. 911.) Existing law allows for
specified privileges, including attorney-client,
physician-patient, and others. (Evid. Code Secs. 930-1063.)
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Existing law requires the court to limit the scope of discovery
if the burden, expense, or intrusiveness of that discovery
clearly outweighs the likelihood that the information sought
will lead to the discovery of admissible evidence. (Code Civ.
Proc. Sec. 2017.020(a).)
Existing law declares policy of the state underlying the
work-product privilege. The policy is to both:
preserve the rights of attorneys to prepare cases for trial
with that degree of privacy necessary to encourage them to
prepare their cases thoroughly and to investigate not only the
favorable but the unfavorable aspects of those cases; and
prevent attorneys from taking undue advantage of their
adversary's industry and efforts. (Code Civ. Proc. Sec.
2018.020(a)-(b).)
Existing law provides that a writing that reflects an attorney's
impressions, conclusions, opinions, or legal research or
theories is not discoverable under any circumstances. (Code
Civ. Proc. Sec. 2018.030(a).) Existing law provides that the
work product of an attorney, other than a writing, as described
above, is not discoverable unless the court determines that
denial of discovery will unfairly prejudice the party seeking
discovery in preparing that party's claim or defense or will
result in an injustice. (Code Civ. Proc. Sec. 2018.030(b).)
Existing law enumerates the methods by which a party may obtain
discovery, including oral and written depositions;
interrogatories; physical and mental examinations; requests for
admissions; simultaneous exchanges of expert trial witness
information; and inspections of documents, things and places.
(Code Civ. Proc. Sec. 2019.010.)
Existing law provides the procedures and requirements by which
any party may make an inspection demand. (Code Civ. Proc. Secs.
2031.010-2031.060.)
Existing law requires a party to whom a demand for inspection,
copying, testing, or sampling has been directed to respond to
each item or category of item by either:
a statement that the party will comply with the particular
demand;
a representation that the party lacks the ability to comply
with the demand of a particular item or category of item; or
an objection to the particular demand for inspection, copying,
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testing, or sampling. (Code Civ. Proc. Sec. 2031.210(a)-(c).)
Existing law provides if the responding party objects to the
demand for inspection, copying, testing, or sampling of an item
or category of item, the response must do both of the following:
identify with particularity any document, tangible thing,
land, or electronically stored information falling within any
category of item in the demand to which an objection is being
made; and
set forth clearly the extent of, and the specific ground for,
the objection. If the objection is based on a claim of
privilege, the particular privilege invoked must be stated.
If an objection is based on a claim that the information
sought is protected work product, that claim must also be
expressly asserted. (Code Civ. Proc. Sec.
2031.240(b)(1)-(2).)
Existing law provides that on receipt of a response to a demand
for inspection, copying, testing, or sampling, the demanding
party may move for an order compelling further response to the
demand, if the party deems that an objection in the response is
without merit or too general. (Code Civ. Proc. Sec.
2031.310(a)(3).)
Existing case law provides that a privilege log is jargon,
commonly used by courts and attorneys to express the
requirements of Section 2031.240 (which requires a party to
identify with particularity the document to which objection is
being made and set forth clearly the extent of, and the specific
ground for, the objection, the particular privilege, and
expressly assert if an objection is based on a claim that
information sought is protected work product). Existing case
law provides that the purpose of a privilege log is to provide a
specific factual description of documents in aid of
substantiating a claim of privilege in connection with a request
for document production, so as to permit a judicial evaluation
of the claim of privilege. (Hernandez v. Superior Court (2003)
112 Cal.App.4th 285, 292.)
Existing case law 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 "sufficiently specific to allow a
determination of whether each withheld document is or is not in
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fact privileged." Case law also provides that a responding
party is not automatically required to produce a privilege log
at the time of objection. (Best Product Inc. v. Superior Court
(2004) 119 Cal.App.4th 1181, 1188-1190.) Case law further
provides that a tardy privilege log does not equate to waiver of
any privilege, provided that the objection to discovery on the
basis of privilege was expressly made in a timely manner. (Id.
at 1188; Korea Data Systems v. Superior Court (1997) 51
Cal.App.4th 1513, 1517.)
This bill would expressly require a responding party who 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.
COMMENT
1. Stated need for the bill
According to the author:
Current law permits a party to a civil action to obtain
discovery by inspecting documents, tangible items, and land or
other property in the possession of any other party to the
action. Current law also provides procedures that must be
followed when the responding party objects to part or all of
an inspection demand. There is no provision in the Code of
Civil Procedure requiring a responding party who objects to an
inspection demand on the grounds of attorney-client or work
product privilege to produce a privilege log unless and until
a court orders production. (Best Product Inc. v. Superior
Court (2004) 119 Cal.App.4th 1181, 1188.) AB Ý1354] codifies
current case law for requesting a court order requiring the
production of a privilege log. This bill would require the
responding party to provide sufficient factual information in
its response for other parties to evaluate the merits of that
claim, including, if necessary, a privilege log.
Practitioners frequently refer to privilege logs but there is
no common definition of a privilege log and what categories it
should contain. There are some cases that justify ordering
the production of a privilege log at the outset and some cases
that do not justify the expense of one at all. This proposal
allows the parties to agree to "opt in" or the Court to order
the parties to comply.
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2. Discovery rights and evidentiary privileges -- balancing
the right to evidence against the need for confidentiality
This bill seeks to require a party who 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.
Under the Civil Discovery Act, parties have the right to
discovery of any matter, not privileged, that is relevant to the
subject matter involved in the pending action or to the
determination of any motion made in that action, if the matter
either is itself admissible in evidence or appears reasonably
calculated to lead to the discovery of admissible evidence.
There are several methods for a party to obtain discovery, such
as depositions, interrogatories, and so forth; one such way is
through inspections of documents, things, and places.
This right of parties to conduct discovery and uncover
admissible evidence is tied to the interest in introducing all
relevant evidence when a matter is decided in court, which in
turn stems from a general legal principle that the public has an
interest and right to "every man's evidence." At the same time,
the law considers certain evidence as privileged, and thereby
not subject to discovery. (See Evid. Code Secs. 911, 930-1063.)
These privileges include the attorney-client privilege,
physician-patient privilege, spousal privilege, and others.
In reviewing such statutory privileges, courts have repeatedly
found that the public benefits most by protecting confidential
communications in certain relationships and permitting the
holder of the privilege to refuse to disclose and prevent others
from disclosing the contents of those communications. These
rules facilitate the purpose of those privileged relationships
by removing any fear that information which is key to receiving
the assistance of a doctor, lawyer, counselor, psychotherapist,
spouse, or clergyman will be disclosed. Without that assurance,
it is believed that many people would not appropriately seek the
assistance or share the information needed to enable proper
assistance, to the detriment of their physical health, mental
health, or legal rights. Still, evidentiary privileges have
been carefully limited to balance the need for confidentiality
with that fundamental right of the public to every man's
evidence.
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Relatedly, under existing law, a party has the right to object
to a discovery demand on the basis of privilege or work product
in certain circumstances. In fact, a court must limit the scope
of discovery if it determines that the burden, expense, or
intrusiveness of that discovery clearly outweighs the likelihood
that the information sought will lead to the discovery of
admissible evidence. (Code Civ. Proc. Sec. 2017.020(a).) At
the same time, the claim of privilege alone is not sufficient to
prohibit discovery; an objecting party must further make a
showing that the privilege is rightfully claimed.
As a result, Section 2031.240(b)(2) of the Civil Discovery Act
provides that if a party responding to a demand for inspection,
copying, testing, or sampling objects to that demand, that party
must set forth clearly the extent of, and the specific ground
for, the objection. If the objection is based on a claim of
privilege, the particular privilege invoked must be stated, as
must any claim that the information sought is protected work
product. (Code Civ. Proc. Sec. 2031.240(b)(1)-(2).) In effect,
"Ýt]he law attempts to find a balance between these competing
interests in discovery and the assertion of privilege by
requiring a party objecting to document production to "identify
with particularity" any document as to which it makes an object
and "set forth clearly the extent of, and specific ground for,
the objection in accordance with Ýthis section]." (Kaiser
Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th
1217, 1228.)
This bill seeks to codify case law by adding to that provision
of existing law that a party must provide sufficient factual
information when objecting to a demand for inspection based on
privilege or work product, and that privilege logs may be
required, if necessary.
3. Privilege logs under existing law
The author maintains that this bill would simply codify that
privilege logs may be required of a party objecting to an
inspection demand based on privilege or work product.
In accordance with current case law, after a discovery demand is
made, a party may object to the discovery of specific requested
items, or any part of an item, so long as the response
identifies the item with particularity and clearly sets the
grounds for objection. If the requesting party does not find
those stated grounds satisfactory to demonstrate that the
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privilege exists, it may move for an order compelling the
further response. As a result, the question arises as to when
and for what purpose privilege logs are to be used.
Ultimately, case law concludes that while a privilege log can be
used at any point on a voluntary basis or as a result of an
agreement between parties, courts may require the production of
a privilege log at the point that a motion is made to compel
"further response," in order to help evaluate the claim of
privilege. (Best Product v. Superior Court (2004) 119
Cal.App.4th 1181, 1189-1190; Hernandez v. Superior Court (2003)
112 Cal.App.4th 285, 292.) A party is not automatically
required to produce a privilege log in its response under
Section 2031.310(b)(2) of the Code of Civil Procedure to the
requesting party's demand for inspection. (Best Product, 119
Cal.App.4th at 1190, see Comment 3b below for further
discussion.)
As discussed below courts appear to already have discretion to
both compel the production of a privilege log when appropriate
and to define what a privilege log means based upon the
circumstances. To avoid any inadvertent interference with a
court's discretion under existing case law, the author proposes
a clarifying amendment, discussed in Comment 3(c), to avoid such
interference.
a. Privilege log, explained
As noted in Comment 2b, the term "privilege log" does not
appear and is not defined anywhere in the Code of Civil
Procedure. (See e.g. Hernandez v. Superior Court (2003) 112
Cal.App.4th 285.) In Hernandez v. Superior Court, the Court
of Appeal explained that nowhere in the Code of Civil
Procedure is the term used or explained. "The expression is
jargon, commonly used by courts and attorneys to express the
requirements of subdivision (g)(3) of section 2031." That
section, since renumbered to Section 2031.240, requires a
responding party who objects to the demand for inspection of a
document based upon a claim of privilege: (1) identify with
particularity the document to which objection is made, and (2)
set forth clearly the extent of, and the specific ground for,
the objection; state any particular privilege claimed; and
expressly assert any objection based on a claim that
information sought is protected work product. (112
Cal.App.4th at 292.)
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As described by the courts, the purpose of a privilege log is
to provide a specific factual description of documents in aid
of substantiating a claim of privilege in connection with a
request for document production. The purpose of providing a
specific factual description of documents, in turn, is to
permit a judicial evaluation of the claim of privilege. (Id.)
b. Case law on the application of privilege logs
In Best Product v. Superior Court (2004) 119 Cal.App.4th 1181,
the Court of Appeal held that the trial court misapprehended
the stage of a proceeding at which a privilege log becomes
relevant. In that case, the trial court had found that
defendant's failure to provide a privilege log in its response
to the plaintiff's demand constituted a waiver of its right to
assert the attorney-client and work product privileges, even
though the defendant did assert the both privileges in its
response objecting to discovery in a timely manner. Reversing
that decision, the Court of Appeal determined that there was
"absolutely no requirement that a privilege log be tendered at
this point of the discovery proceedings," referencing at the
time of the initial response. (Id. at 1188.)
The court explained that the need for a privilege log could
have arisen if the plaintiff, who had made the discovery
demand, had moved to compel further responses to contest the
defendant's conclusory attorney-client and work product
inspection under the applicable statutory provision. But the
plaintiff in that case did not do so. (112 Cal.App.4th at
1189 (emphasis added).) The relevant statute, Section
2031(m), was substantially similar to that of existing law
today, and provided that: "If the party demanding an
inspection, on receipt of a response to an inspection demand,
deems . . . (3) an objection in response is without merit, or
too general, that party may move for an order compelling
further response to the demand." (See Code Civ. Proc. Sec.
2031.310(a)(3), providing that on receipt of a response to a
demand for inspection, copying, testing, or sampling, the
demanding party may move for an order compelling further
response to the demand, if the party deems that . . . (3) an
objection in the response is without merit or too general.)
Thus, under existing case law, if the responding party objects
to a demand on the basis of a privilege or work-product claim,
in evaluating that objection, the court may require the
objecting party to produce a privilege log, with information
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"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 at the point of objection to claim the
privilege. (Best Product Inc. 119 Cal.App.4th 1181,
1188-1190; see also Korea Data Systems v. Superior Court
(1997) 51 Cal.App.4th 1513, 1517.) This bill seeks to codify
those same principles and provide clarity for future cases on
the use and application of privilege logs, while also adding
the word "privilege logs" to the Code of Civil Procedure for
the first time.
c. Author's amendment to clarify the intent of the bill and
avoid unintended consequences
Committee staff notes that it is important that the right to
claim a privilege not be waived by the production of a
privilege log, which often may contain information that an
attorney would not otherwise reveal based on confidential
communications. For example, the time a communication is made
to a particular party, often included in a privilege log, may
be considered privileged itself under the circumstances.
Moreover, absent the clarifying amendment discussed below,
codification of the term "privilege log," without a
correlating definition or detailed guidance for the courts,
could be construed to be a substantive change in law with
unknown consequences.
Accordingly, the following author's amendment would clarify
the intent of the bill, and ensure that it is not construed to
change case law with respect to privilege logs.
Author's Amendment :
On page 3, line 21, after (c) insert "(1)"
On page 3, after line 25, insert "(2) It is the intent of
the Legislature to codify the concept of a privilege log as
that term is used in California case law. Nothing in this
subdivision shall be construed to constitute a substantive
change in case law."
Support : Consumer Attorneys of California
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Opposition : None Known
HISTORY
Source : Conference on California Bar Associations
Related Pending Legislation : None Known
Prior Legislation :
AB 238 (Huber, 2011) See Background.
AB 578 (Huber, 2009) See Background.
Prior Vote :
Assembly Floor (Ayes 64, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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