BILL ANALYSIS Ó
AB 1354
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CONCURRENCE IN SENATE AMENDMENTS
AB 1354 (Huber)
As Amended August 7, 2012
Majority vote
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|ASSEMBLY: |64-0 |(January 13, |SENATE: |36-0 |(August 9, |
| | |2012) | | |2012) |
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Original Committee Reference: B.,P.&C.P.
SUMMARY : Codifies discovery case law regarding privilege.
Specifically, this bill :
1)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.
2)States the intent of the Legislature to codify the concept of
a privilege log as that term is used in California case law.
Provides that this shall not be construed to constitute a
substantive change in case law.
The Senate amendments add the intent statement regarding
privilege logs.
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.
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,
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or undue burden and expense.
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.
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.
5)Provides that, if the objection is based on a claim of
privilege, the particular privilege invoked must be stated.
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.
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
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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).)
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : None
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 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
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 on
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. 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.
Existing case law already gives a court the ability to order a
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privilege log if it deems it necessary, but a responding party
is not automatically required to include one in a required
response and explanation. 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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0004702