BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1354|
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CONSENT
Bill No: AB 1354
Author: Huber (D)
Amended: 8/7/12 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 7/3/12
AYES: Evans, Blakeslee, Corbett, Leno
NO VOTE RECORDED: Harman
ASSEMBLY FLOOR : 64-0, 1/13/12 (Consent) - See last page
for vote
SUBJECT : Civil procedure: discovery objections:
privilege logs
SOURCE : Conference on California Bar Associations
DIGEST : This bill requires 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.
ANALYSIS : Existing law, the Civil Discovery Act,
provides procedures by which parties to a civil action
conduct and obtain "discovery." (Code of Civil Procedure
(CCP) Section 2017.010 et seq.)
Existing law provides that, unless otherwise limited by
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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. (CCP Section
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. (Evidence Code Section
911.) Existing law allows for specified privileges,
including attorney-client, physician-patient, and others.
(Evidence Code Sections 930-1063)
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. (CCP Section 2017.020(a))
Existing law declares policy of the state underlying the
work-product privilege. The policy is to both:
1. 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
2. Prevent attorneys from taking undue advantage of their
adversary's industry and efforts. (CCP Section
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. (CCP Section 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
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party's claim or defense or will result in an injustice.
(CCP Section 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. (CCP Section 2019.010)
Existing law provides the procedures and requirements by
which any party may make an inspection demand. (CCP
Sections 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, testing, or sampling. (CCP Section
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,
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that claim must also be expressly asserted. (CCP
Section 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.
(CCP Section 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 CCP 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 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 expressly requires a responding party who objects
to a discovery demand on the basis of a claim of privilege
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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.
This bill specifies that 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/7/12)
Conference on California Bar Associations (source)
Consumer Attorneys of California
ARGUMENTS IN SUPPORT : 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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ASSEMBLY FLOOR : 64-0, 1/13/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Cedillo, Chesbro,
Conway, Cook, Dickinson, Donnelly, Eng, Feuer, Fletcher,
Fong, Fuentes, Beth Gaines, Galgiani, Gatto, Gordon,
Hagman, Halderman, Harkey, Hayashi, Roger Hernández,
Hill, Huber, Hueso, Jeffries, Knight, Lara, Logue, Bonnie
Lowenthal, Mansoor, Miller, Mitchell, Monning, Morrell,
Nestande, Nielsen, Olsen, Pan, Perea, V. Manuel Pérez,
Portantino, Silva, Skinner, Solorio, Torres, Valadao,
Wagner, Wieckowski, Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Bill Berryhill, Block, Carter, Davis,
Furutani, Garrick, Gorell, Grove, Hall, Huffman, Jones,
Ma, Mendoza, Norby, Smyth, Swanson
RJG:k 8/8/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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