BILL ANALYSIS
AB 578
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Date of Hearing: May 5, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 578 (Huber) - As Introduced: February 25, 2009
PROPOSED CONSENT
SUBJECT : CIVIL PROCEDURE: DISCOVERY OBJECTIONS: PRIVILEGE LOG
KEY ISSUE : SHOULD THE CODE OF CIVIL PROCEDURE BE AMENDED TO
CODIFY CURRENT CASE LAW, WHICH PROVIDES THAT, IF A PARTY OBJECTS
TO A DISCOVERY DEMAND ON THE GROUNDS THAT THE MATERIAL IS
PRIVILEGED, THEN THE DEMANDING PARTY MAY ASK (AND THE COURT MAY
REQUIRE) THE OBJECTING PARTY TO PRODUCE A "PRIVILEGE LOG," IN
ORDER TO CLARIFY THE CLAIM OF PRIVILEGE?
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 Discovery Act provides for procedures
that must be followed when the responding party objects to part
or all of an inspection demand. This bill would authorize the
party making the discovery demand to move for an order to
require the responding party to produce a privilege log if the
responding party is objecting on the basis of privilege or work
product. If the court, in its discretion, determines that a
privilege log is necessary in order to determine the validity of
the claim, the court shall order the party claiming the
privilege to prepare and serve a privilege log, according to the
terms and conditions deemed appropriate by the court. The bill
would also specify that the parties may voluntarily comply with
these provisions, or may stipulate that all parties will comply
with these provisions. The bill would require that the
compliance be presumed to satisfy the existing provisions
related to objecting to a demand for inspection. The bill also
clarifies what is meant by the term "privilege log," and
provides the courts with guidance as to the categories such a
log should contain, subject to the court's modification of those
categories.
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The author has acknowledged that this measure is a "work in
progress." She states that she has been working closely with
representatives of the Judicial Council, the Judges Association,
the State Bar, the California Defense Council, and the Consumer
Attorneys of California to try to craft consensus legislation in
this area, and she has committed to all of these organizations
that she will not move the bill in the Senate unless all of
these discovery experts are satisfied that the needed amendments
have been incorporated into the bill in order to make the
legislation useful and acceptable. The author also acknowledged
to the Committee that in the event the legislation is amended in
any way, she will bring the bill back to the Assembly Judiciary
Committee for consideration of the new measure.
SUMMARY : Amends the Code of Civil Procedure to expressly allow
a party making a discovery demand to ask that the other party
produce a privilege log, if the other party objects to the
discovery demand on the basis of privilege or work product.
Specifically, this bill :
1)Provides that, in a civil action, when a party (the
"responding party") objects to a discovery demand for
inspection of an item or category of item, on the basis of
privilege or work product, the party making the demand may
move for an order requiring the responding party to produce a
"privilege log."
2)Provides that if the court, in its discretion, determines that
a privilege log is necessary in order to determine whether the
responding party's claim of privilege or work product is
valid, the court shall order the responding party (the party
claiming the privilege) to prepare and serve a privilege log
upon the terms and conditions deemed appropriate by the court.
3)Provides that, unless otherwise ordered by the court, the
privilege log shall include, as to each item for which a claim
of privilege or other protection from discovery has been made,
all of the following:
a) The author or authors;
b) The recipient or recipients;
c) The date or dates;
d) The length;
e) The nature of the document or its intended purpose; and
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f) The basis for the objection.
4)Provides that the parties may voluntarily comply with the
privilege log requirements or may stipulate that all parties
will comply and that compliance shall be presumed to satisfy
the standards set out in the statute.
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. (Code of Civil Procedure section 2031.010(a).)
2)Provides the procedure that a demanding party must follow in
making a demand, including the contents of the demand as well
as the manner of serving notice on the responding party.
(Code of Civil Procedure sections 2031.030-2031.040.)
3)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.)
4)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.)
5)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. (Code of Civil Procedure section
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2031.240(b).)
6)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).)
7)Provides that, if the objection is based on a claim that the
information sought is protected work product (as defined in
Code of Civil Procedure sections 2018.010 et seq.), that claim
must be expressly asserted.
8)Provides that, if the responding party fails to serve a timely
response to the demand, the following apply:
a) The responding party waives any objection to the demand,
including one based on privilege or on the protection of
work product (in this case, the court might relieve the
party from waiver if the party's failure to respond was the
result of inadvertence or mistake, or if the party has
subsequently substantially complied with the demand);
b) The party making the demand may move for an order
compelling response;
c) The court may order sanctions for failure to respond
under specified circumstances. (Code of Civil Procedure
section 2031.300.)
9)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).)
10)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." (Wellpoint Health Networks, Inc. v.
Superior Court, 59 Cal.App.4th 110, 129-130 (1997).)
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11)Provides that if the responding party objects to a demand on
the basis of a privilege or work-product claim, the responding
party is not automatically required to produce a privilege
log; the responding party does not waive his or her privilege
by not producing a privilege log in response to a demand for a
privilege log; and the responding party only waives privilege
by not responding to the demand in a timely manner. (Best
Product Inc. v. Superior Court, 119 Cal.App.4th 1181,
1188-1190 (2004).)
COMMENTS : According to the author, this bill seeks to codify
"current case law for requesting a court order requiring the
production of a privilege log." The author states that the bill
codifies the court's holding in Best Product Inc. v. Superior
Court, 119 Cal.App.4th 1181, 1188-1190 (2004).
Best Product Inc. v. Superior Court, 119 Cal.App.4th 1181
(2004) . In Best Product, the court held that a privilege log
was not automatically required where a responding party claimed
that items demanded in discovery were privileged. Id. at 1189.
The court held that a court could order a privilege log if the
demanding party moved to compel "further responses" to the
party's demand, so that the court could determine whether the
items were in fact privileged. Id.
A Court Already Has The Ability To Order A Party To Produce A
Privilege Log Under A More General Statute . Given the holding
in Best Product, it is clear that a court has the ability to
order a responding party who claims privilege to produce a
privilege log, under the more general statute, Code of Civil
Procedure section 2031.310(a). This statute allows the
demanding party to request "further response," if, for example,
the responding party makes a general claim of privilege.
Work in Progress : The author has acknowledged that this measure
is a "work in progress." She states that she has been working
closely with representatives of the Judicial Council, the Judges
Association, the State Bar, the California Defense Council, and
the Consumer Attorneys of California to try to craft consensus
legislation in this area, and she has committed to all of these
organizations that she will not move the bill in the Senate
unless all of these discovery experts are satisfied that the
needed amendments have been incorporated into the bill in order
to make the legislation useful and acceptable. The author also
acknowledged to the Committee that in the event the legislation
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is amended in any way, she will bring the bill back to the
Assembly Judiciary Committee for consideration of the new
measure.
ARGUMENTS IN SUPPORT : In support the American Federation of
State, County, and Municipal Employees (AFSCME) state, "AB 578
ensures that items protected from discovery are properly
outlined as to why they should be protected from the party
filing for discovery. This bill requires the party objecting to
discovery to file a protection log with the court which outlines
the reasons for objection." AFSCME states that it "supports the
Legislature's efforts to improve California's legal process."
Supporters Consumer Attorneys of California (CAOC) state, "AB
578 would provide guidance to litigants and to courts in
identifying documents that are subject to a claim of privilege
in litigation." CAOC states, "The purpose of discovery is to
encourage the open exchange of information in order to resolve
disputes?. AB 578 simply puts in place guidelines for litigants
and the courts in using privilege logs to identify information
subject to the privilege claim." CAOC further states, "AB 578
removes any uncertainty concerning the ability of a party to
request a privilege log and also provides clear guidance about
the information that should be included in a privilege log."
CAOC states that the bill will "reduce unnecessary games
playing" by parties responding to discovery demands.
PRIOR LEGISLATION : AB 5 (Evans) 2009: Civil Discovery:
Electronic Discovery Act. This bill updates the Civil Discovery
Act to better provide for obtaining the growing volume of
electronically stored information. Approved by the Assembly.
AB 926 (Evans) 2007-2008: Civil Discovery: Established
procedures in the Civil Discovery Act for a person to obtain
discovery of electronically stored information, in addition to
tangible things, and land or other property, in the possession
of any other party to the action. Vetoed by the Governor.
AB 1248 (Evans) 2007-2008, Chapter 738, Statutes of 2007:
Courts: This bill allowed the demanding and responding parties
to agree to extend the date for a demanded inspection set
pursuant to the provisions of law relating to the time for
inspection; required the documents subject to an inspection
demand to be produced on the date specified in the inspection
demand pursuant to the provisions of law relating to the time
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for inspection, unless an objection had been made to that date;
and provided that, if the date for inspection has been extended
pursuant to the above provisions of law relating to extensions,
the documents shall be produced on the date agreed to pursuant
to those provisions.
AB 3081 (Committee on Judiciary) 2005-2006, Chapter 182 of 2004:
Civil Discovery: Reorganized the civil discovery statutes by
dividing them into short sections grouped in chapters according
to subject matter, and made conforming changes in
cross-references to other code sections.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of Delegates, California State Bar Association
(sponsor)
American Federation of State, County, and Municipal Employees
Consumer Attorneys of California
Opposition
None on file
Analysis Prepared by : Drew Liebert and Rachel Anderson / JUD.
/ (916) 319-2334