Nothing from the Ninth Circuit or California Court of Appeal so far today.
So let's go back a tiny bit and give a cheer for Justice Aronson.
The first paragraph of this opinion makes crystal clear both what the case is about as well as what the relevant rule is:
"May a trial court find a waiver of the attorney-client privilege and work
product doctrine when the objecting party submits an inadequate privilege log that fails to
provide sufficient information to evaluate the merits of the objections? No."
But that's not all. Justice Aronson not only tells us what the court can't do, but also tells us what it permissibly can. Next paragraph:
"When confronted with a deficient privilege log that fails to provide the
necessary information to rule on attorney-client and work product objections, a trial court
may order the responding party to provide a further privilege log that includes the
necessary information to rule on those objections, but may not order the privileges
waived based on deficiencies in the privilege log because serving a deficient privilege
log, or even failing to serve a privilege log, is not one of the three statutorily-authorized
methods for waiving the attorney-client privilege. The court may impose monetary
sanctions for providing a deficient privilege log, and it may impose evidence, issue, and
even terminating sanctions if the responding party persists in its failure to provide the
court with the information necessary to rule on the objections’ merits, but a forced waiver
is not authorized by either the statutory scheme establishing the attorney-client privilege
or the discovery statutes once the responding party preserves the objections by timely
asserting them in response to an inspection demand."
That's exactly right. It's also an awesome summary of the opinion that follows. Which explains in exhaustive detail how and why the trial court erred.
And the rest of the opinion is equally clear and concise as well. Page 9, for example:
"Accordingly, if a party responding to an inspection demand timely serves a
response asserting an objection based on the attorney-client privilege or work product
doctrine, the trial court lacks authority to order the objection waived even if the
responding party fails to serve a privilege log, serves an untimely privilege log, or serves
a privilege log that fails either to adequately identify the documents to which the
objection purportedly applies or provide sufficient factual information for the
propounding party to evaluate the objection. . . .
The propounding party’s remedy when it deems “[a]n objection in the
response is without merit or too general” is to “move for an order compelling further
response.” [Cite] If the response and any privilege log
provide sufficient information to permit the court to determine whether the asserted
privilege protects specific documents from disclosure, the court may rule on the merits of
the objection by either sustaining it or overruling it as to each document. [Cite]
If the response and any privilege log fail to provide sufficient information
to allow the trial court to rule on the merits, the court may order the responding party to
provide a further response by serving a privilege log or, if one already has been served, a
supplemental privilege log that adequately identifies each document the responding party
claims is privileged and the factual basis for the privilege claim. [Cite] In ordering a further response, the court also may impose monetary
sanctions on the responding party if that party lacked substantial justification for
providing its deficient response or privilege log. [Cite]
If the responding party thereafter fails to adequately comply with the
court’s order and provide the information necessary for the court to rule on the privilege
objections, the propounding party may bring another motion seeking a further response or
a motion for sanctions. At that stage, the sanctions available include evidence, issue, and
even terminating sanctions, in addition to further monetary sanctions. [Cite] But the court may not impose a waiver of the attorney-client privilege or work
product doctrine as a sanction for failing to provide an adequate response to an inspection
demand or an adequate privilege log."
I can't imagine an opinion making the law any more clear. On a topic that many, many litigators care (or at least should care) about, and confront daily.
Bravo.
