Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Is a privilege log required to preserve the attorney client privilege log required to preserve the attorney client or work product privilege in California?
The answer is less clear in light of recent amendments

The broad scope of Judicial Council approved Form Interrogatories and concurrently served requests for production often implicate documents which are subject to attorney client or work product privileges.  In responding to document requests, Code of Civil Procedure section 2031.240 required the responding party to “(1) Identify with particularity any document,…which an objection is being made.(2) Set forth clearly the extent of, and the specific ground for, the objection…”

The practical avenue to comply with the Code section has generally been to serve a “privilege log” identifying the characteristics of the withheld documents set forth in the Code section.   But “the term ‘privilege log’ did not appear in the Code of Civil Procedure and was ‘commonly used by courts and attorneys to express the requirements of subdivision (g)(3) of [Code of Civil Procedure] section 2031 [now Code of Civil Procedure section 2031.240, subdivision (b)].” (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 292.  “The expression is jargon, commonly used by courts and attorneys to express the requirements of subdivision (g)(3) of section 2031.”  (Id. a p.292.)  As commentators noted, “It is a widely held myth that to protect privileged documents or communications from discovery, a lawyer must prepare a privilege log that lists the author, recipient, and the nature or title of each document for which a claim of privilege is made.”  (Los Angeles Lawyer, March 2006     Vol. 29, No. 1.)

Prior to January 1, 2013, practitioners generally simply assertedf the applicable privileges in the discovery responses because “[t]here [was] absolutely no requirement that a privilege log be tendered at this point of the discovery proceedings. [If] defendant did assert the attorney-client and work product privileges in a timely manner, albeit in a boilerplate fashion, the court erred in finding a waiver of privilege(s).” (Best Product, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181–1188; Hernandez v. Superior Court, supra, 112 Cal. App. 4th at p. 294 [“[T]he failure to provide a privilege log ….., in itself, did not waive either attorney client or work product privileges.  [A] forced waiver of the attorney-client privilege is not an appropriate sanction for a tardy ‘privilege log,’ so long as the privilege is invoked in a timely manner.”]; Korea Data Sys. Supply Co., Ltd. v. Superior Court (1997) 51 Cal. App. 4th 1513, 1516 ["[T]he court erred in finding the attorney-client privilege waived by the untimely filing of a privilege log."])

This jurisprudence was based upon a Discovery Act which did not refer to “privilege log.”  But, “[r]ecent legislation amended subdivision (c)(1) of Code of Civil Procedure section 2031.240 to require the preparation of a privilege log ‘if necessary’ to ‘provide sufficient factual information for other parties to evaluate the merits’ of a claim of privilege or protected work product.… section 2031.240, subdivision (c)(1) applies only to responses to inspection demands.”  (Bank of America, N.A. v. Superior Court (Cal. App. 4th Dist. Jan. 15, 2013) 2013 Cal. App. LEXIS 27, 35.)

Does counsel’s failure to serve discovery responses which do not “identify with particularity” the documents withheld and basis for objection or a privilege log in the first instance waive the privilege under the amended Code section? Evidence Code section 955 provides, “The lawyer who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 954.” Thus, “absent a waiver of    the attorney-client privilege by [client or] someone authorized to make it on [the client’s] behalf, [an attorney] is duty bound to claim the privilege.”  (Reilly v. Greenwald & Hoffman, LLP, (2011) 196 Cal. App. 4th 891, 902-903.)

No appellate authority has expressly interpreted the new section, but given the authority leading up to the Legislature’s amendment of the statute and the Legislature’ explicit inclusion of the term “privilege log”, practitioners may not be able to rely upon authority interpreting the previous Code section which did not include the term “privilege log”.

The amended section provides 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.” (Cal Code Civ Proc § 2031.240(c)(2).)  Thus, the statute could be interpreted to not modify previous case authority providing that the failure to tender a privilege log in the first instance does not waive asserted privileges.  Practitioners will want to carefully weigh the risks of waiver in responding to documents requests in light of the amended Code section.  Providing a privilege log at the outset will likely provide the safest course of action.

-- Andrew Servais

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis.  Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**