Catalina Island Yacht Club v. Superior Court , 195 Cal. Rptr. 3d 694 ( 2015 )

Filed 12/4/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CATALINA ISLAND YACHT CLUB
et al.,
Petitioners,
G052062
v.
(Super. Ct. No. 30-2013-00679575)
THE SUPERIOR COURT OF ORANGE
COUNTY, OPINION
Respondent;
TIMOTHY BEATTY et al.,
Real Parties in Interest.
Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Kirk H. Nakamura, Judge. Petition granted.
Schumann │ Rosenberg, Kim Schumann, Jeffrey P. Cunningham and
Marlys K. Braun for Petitioners.
No appearance for Respondent.
Fox Johns Lazar Pekin & Wexler and George C. Lazar for Real Parties in
Interest.
* * *
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.
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.
Here, the trial court ordered petitioners to produce 167 e-mails identified on
their privilege log because the log failed to describe the subject matter or content of the
e-mails, and therefore failed to show the e-mails were protected by either the
attorney-client privilege or attorney work product doctrine. We conclude the trial court
erred because it exceeded its authority.
Real parties in interest contend the court did not order the e-mails produced
based on a waiver of the attorney-client privilege or work product doctrine. Rather, they
argue the court based its ruling on petitioners’ failure to meet their burden to establish the
2
e-mails were privileged. This contention, however, misconstrues the basis for the court’s
ruling and the controlling law. The court ordered the e-mails produced because
petitioners’ privilege log failed to provide the information necessary to determine
whether the e-mails were privileged; the court did not conclude that the e-mails were not
privileged. As explained above, when a privilege log fails to provide a trial court with
sufficient information to rule on the merits of a privilege objection, the only relief the
court may grant – other than sanctions – is an order requiring a further privilege log that
provides the necessary information.
I
FACTS AND PROCEDURAL HISTORY
Petitioner Catalina Island Yacht Club (Yacht Club) is located in the City of
Avalon on Catalina Island. It hosts social events for its members and also arranges for its
members to dock their boats in Avalon Harbor. Real party in interest Timothy Beatty and
petitioners Charles Boppell, V. Kelley York, Lowell Dreyfus, Tom Nix, and Dave Horst
were members of the Yacht Club and its board of directors.1 In 2013, Beatty sued
Petitioners, alleging they conspired to remove him from the board and suspend his
membership in the Yacht Club. He alleges Petitioners defamed him by telling others that
the Yacht Club removed him because he committed various acts that prejudiced “the best
interests of the Club.” The operative first amended complaint alleges claims for libel,
slander, invasion of privacy, and intentional infliction of emotional distress.2
1
we will refer to petitioners Catalina Island Yacht Club, Charles Boppell, V.
Kelley York, Lowell Dreyfus, Tom Nix, and Dave Horst collectively as Petitioners.
2
The first amended complaint also alleges a claim on behalf of real party in
interest Beatty & Company Computing, Inc. for the reasonable value of services
performed. This claim alleges Beatty, through Beatty & Company Computing, Inc.,
installed a computerized accounting system and completely reorganized the Yacht Club’s
accounting system, but the Yacht Club failed to pay for the services. This claim is not
relevant to the discovery dispute at issue in these proceedings.
3
In December 2013, Beatty served inspection demands on Petitioners
seeking written communications and other documents relating to his removal from the
Yacht Club’s board of directors and suspension of his membership. In early
February 2014, Petitioners served written responses that included boilerplate objections
based on the attorney-client privilege and work product doctrine. Nearly two months
later, Petitioners served a privilege log identifying 17 “communications” they withheld
from production based on the attorney-client privilege and work product doctrine. For
each communication, the log simply provided the date of the communication and
explained it was between “counsel for Defendants and Defendants.”
Beatty filed a motion to compel Petitioners to produce the communications
identified on the privilege log because the log failed to provide sufficient information to
invoke the attorney-client privilege or work product doctrine. The court, however,
ordered the parties to meet with a temporary judge and attempt to resolve the issue and
several other pending discovery motions. In August 2014, the parties reported to the
court they had reached an agreement regarding the discovery issues. On Beatty’s motion
to compel production, Petitioners agreed to supplement their privilege log to identify the
sender and the recipients of each communication, but the parties’ agreement said nothing
about describing the content or subject matter of the communications.
In September 2014, Petitioners served a supplemental privilege log
identifying the communications as e-mails and the sender and all recipients of each
e-mail. The supplemental log also increased the number of withheld documents from 17
to 36. Beatty responded with a motion for sanctions, claiming Petitioners had failed to
comply with the agreement the parties reached because Petitioner had not produced all
the requested documents.
In January 2015, just before the hearing on Beatty’s sanctions motion,
Petitioners served another supplemental privilege log purporting to identify the sender
and all recipients of each e-mail and the date of the communication. It also significantly
4
increased the number of e-mails Petitioners were withholding from production. The
parties fail to state whether or how the trial court ruled on Beatty’s sanctions motion.
In March 2015, Beatty served a motion to compel Petitioners to produce
167 e-mails identified in the most recent privilege log. He argued Petitioners waived the
attorney-client privilege and work product doctrine by failing to timely serve a privilege
log that provided sufficient factual information to enable him to evaluate the merits of
Petitioners’ privilege objections. Beatty also argued the court should order Petitioners to
produce the e-mails because Petitioners failed to present sufficient evidence to establish
the e-mails were confidential attorney-client communications or work product. In
opposing the motion, Petitioners argued the trial court lacked authority to order the
e-mails produced based on any purported deficiency in their privilege log because that
ruling would amount to a forced waiver of the attorney-client privilege and work product
doctrine. Instead, Petitioners offered to provide another supplemental privilege log or
produce the e-mails for in-camera review if the court found the privilege log deficient.
On May 14, 2015, the trial court granted Beatty’s motion and ordered
Petitioners to produce the 167 e-mails within 10 days and to pay $1,140 in monetary
sanctions. The court explained, “Although not untimely, the information supplied by the
privilege log produced by [Petitioners] is insufficient to show the entries therein are
protected by either the attorney-client or work product protections. [Petitioners] have not
offered any description of the allegedly protected e-mails in the privilege log or
otherwise. Even a minimal statement such as ‘transmission of strategic
documents/pleadings including analysis and legal assessment’ . . . is sufficient. Bank of
America, N.A. v. Superior Court of Orange County (2013) 212 CA4th 1076 [(Bank of
America)]. Here, there is no identification whatsoever as to why the subject emails may
be protected from disclosure.”
Petitioners then filed this writ petition seeking to stay the trial court’s
May 14, 2015 order and a writ of mandate compelling the court to vacate that order. We
5
granted an immediate stay and invited preliminary opposition from Beatty. After
reviewing that opposition, we extended the stay and issued an order to show cause why a
writ of mandate should not issue ordering the court to vacate its May 14, 2015 order
compelling Petitioners to produce the e-mails. Beatty filed a return to the petition and
Petitioners filed a reply.
II
DISCUSSION
A. Availability of Extraordinary Writ Review and the Governing Standard of Review
“‘Interlocutory review by writ is the only adequate remedy where a court
orders production of documents which may be subject to a privilege, “since once
privileged matter has been disclosed there is no way to undo the harm which consists in
the very disclosure.” [Citation.] The attorney-client privilege “deserves a particularly
high degree of protection in this regard since it is a legislatively created privilege
protecting important public policy interests, particularly the confidential relationship of
attorney and client and their freedom to discuss matters in confidence.”’” (People ex rel.
Lockyer v. Superior Court (2004) 122 Cal.App.4th 1060, 1071 (Lockyer).)
We review discovery orders for abuse of discretion. (Bank of America,
supra, 212 Cal.App.4th at p. 1089.) “‘The appropriate test for abuse of discretion is
whether the trial court exceeded the bounds of reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.’” (Ibid.)
“‘The abuse of discretion standard . . . measures whether, given the
established evidence, the act of the lower tribunal falls within the permissible range of
options set by the legal criteria. “The scope of discretion always resides in the particular
law being applied, i.e., in the ‘legal principles governing the subject of [the] action. . . .’
Action that transgresses the confines of the applicable principles of law is outside the
6
scope of discretion and we call such action an ‘abuse’ of discretion.”’ [Citation.] [¶]
‘[W]hen a trial court’s decision rests on an error of law, that decision is an abuse of
discretion.’” (Bank of America, supra, 212 Cal.App.4th at p. 1089.)
B. Governing Legal Principles on Inspection Demands and Objections Based on the
Attorney-Client Privilege and Work Product Doctrine
Any party to an action may serve a written demand that another party
permit inspection and copying of documents, electronically stored information, or other
tangible things in the responding party’s possession, custody, or control. (Code Civ.
Proc., § 2031.010.)3 Within 30 days, the responding party must serve a written response
to the demand that separately responds to each category of documents or other things the
demand seeks with (1) a statement the responding party will comply with the particular
demand; (2) a representation that the party lacks the ability to comply; or (3) “[a]n
objection to the particular demand.” (§§ 2031.210, subd. (a); 2031.260.)
If the responding party objects to a demand, the party must (1) “[i]dentify
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 (2) “[s]et forth clearly the extent of, and the specific ground for, the objection. If an
objection is based on a claim of privilege, the particular privilege invoked shall be
stated.” (§ 2031.240, subd. (b).) The failure to timely respond to an inspection demand
waives all objections to the demand, including objections based on privilege (§ 2031.300,
subd. (a)), and the failure to assert a specific objection waives that particular objection
(Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1141).
Privilege logs have long been used by practitioners to list and describe the
items to be protected. But the expression “‘privilege log’” appeared nowhere in the Code
of Civil Procedure, rather it was merely “jargon, commonly used by courts and attorneys
3
All statutory references are to the Code of Civil Procedure unless stated.
7
to express the requirements of [section 2031.240, subdivision (b)].” (Hernandez v.
Superior Court (2003) 112 Cal.App.4th 285, 292 (Hernandez); see Lockyer, supra,
122 Cal.App.4th at pp. 1073-1074; Best Products, Inc. v. Superior Court (2004)
119 Cal.App.4th 1181, 1188-1189 (Best Products).) “‘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. [Citation.] The purpose
of providing a specific factual description of documents is to permit a judicial evaluation
of the claim of privilege.’” (Ibid.)
In 2012, the Legislature amended section 2031.240 “to codify the concept
of a privilege log as that term is used in California case law.” (§ 2031.240, subd. (c)(2).)
The new section 2031.240, subdivision (c)(1), provides, “If an objection is based on a
claim of privilege or a claim that the information sought is protected work product, the
response shall provide sufficient factual information for other parties to evaluate the
merits of that claim, including, if necessary, a privilege log.” In adding this subdivision,
the Legislature declared, “Nothing in this subdivision shall be construed to constitute a
substantive change in case law.” (§ 2031.240, subd. (c)(2).)
The attorney-client privilege “‘has been a hallmark of Anglo-American
jurisprudence for almost 400 years.’ [Citation.] Its fundamental purpose ‘is to safeguard
the confidential relationship between clients and their attorneys so as to promote full and
open discussion of the facts and tactics surrounding individual legal matters. . . . “The
privilege is given on grounds of public policy in the belief that the benefits derived
therefrom justify the risk that unjust decisions may sometimes result from the suppression
of relevant evidence.” [Citations.]’ [Citation.] ‘[T]he privilege is absolute and
disclosure may not be ordered, without regard to relevance, necessity or any particular
circumstances peculiar to the case.’ [Citation.]” (Costco Wholesale Corp. v. Superior
Court (2009) 47 Cal.4th 725, 732 (Costco).) “‘[The privilege] is not to be whittled away
by means of specious argument that it has been waived. Least of all should the courts
8
seize upon slight and equivocal circumstances as a technical reason for destroying the
privilege.’ [Citation.]” (Blue Ridge Ins. Co. v. Superior Court (1988) 202 Cal.App.3d
339, 345 (Blue Ridge).)
The case law therefore recognizes only three methods for waiving the
attorney-client privilege: (1) disclosing a privileged communication in a nonconfidential
context (Evid. Code, § 912, subd. (a)); (2) failing to claim the privilege in a proceeding in
which the holder has the legal standing and opportunity to do so (ibid.); and (3) failing to
assert the privilege in a timely response to an inspection demand (§ 2031.300, subd. (a)).
(See, e.g., Lockyer, supra, 122 Cal.App.4th at p. 1073; Best Products, supra,
119 Cal.App.4th at p. 1188; Korea Data Systems Co. v. Superior Court (1997)
51 Cal.App.4th 1513, 1516-1517 (Korea Data).) Failing to serve a privilege log or
serving an inadequate privilege log does not fall into any of these three methods.
(Lockyer, at p. 1074; Best Products, at p. 1189; Korea Data, at pp. 1516-1517.)
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. (Lockyer, supra, 122 Cal.App.4th at
pp. 1074-1075 [“Because the [responding parties] timely objected on the grounds of
privilege, they preserved these objections, regardless of whether the objections were
sufficiently detailed in their response or privilege log and the court, as a matter of law,
could not find that they had waived these privileges”]; Best Products, supra,
119 Cal.App.4th at pp. 1187-1189; Hernandez, supra, 112 Cal.App.4th at p. 294; Korea
Data, supra, 51 Cal.App.4th at pp. 1516-1517; Blue Ridge, supra, 202 Cal.App.3d at
p. 347 [“where there is a timely assertion of the attorney/client privilege, putting the other
9
side on notice, a forced waiver for some technical shortfall is at odds with Evidence Code
section 912 and is an excessive sanction not reasonably calculated to achieve the purpose
of effecting compliance with discovery”].)
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.”4 (§ 2031.310, subd. (a)(3); see Lockyer, supra, 122 Cal.App.4th at p. 1075;
Best Products, supra, 119 Cal.App.4th at p. 1189.) 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. (Kaiser
Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217, 1228-1229 (Kaiser
Foundation).)
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. (Lockyer, supra,
122 Cal.App.4th at p. 1075; Kaiser Foundation, supra, 66 Cal.App.4th at
pp. 1228-1229.) 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. (§ 2031.310, subd. (h).)
4
The Code of Civil Procedure authorizes two other types of motion to
compel compliance with an inspection demand. First, if the responding party fails to
respond at all, the propounding party may move for an order compelling a response.
(§ 2031.300.) Second, if the responding party serves a response stating the party will
permit inspection, but then fails to do so, the propounding party may move for an order
compelling the responding party to permit inspection in compliance with its response.
(§ 2031.320.)
10
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. (§ 2031.310,
subd. (i).) 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. (Lockyer, supra, 122 Cal.App.4th at p. 1075; Best
Products, supra, 119 Cal.App.4th at p. 1189 [“the statute does not include as an
authorized sanction a judicial order that a privilege has been waived”]; Hernandez, supra,
112 Cal.App.4th at p. 294; Korea Data, supra, 51 Cal.App.4th at p. 1517; Blue Ridge,
supra, 202 Cal.App.3d at p. 347.)
In Lockyer, for example, the responding party’s response to an inspection
demand timely asserted objections based on the attorney-client privilege and work
product doctrine, but did not serve a privilege log or otherwise identify the purportedly
privileged documents or the factual basis for the privilege claims. The responding party
later served a privilege log that identified categories of documents that were allegedly
privileged, but did not identify specific documents. (Lockyer, supra, 122 Cal.App.4th at
p. 1066.) The propounding party then moved to compel production of the documents that
had not been identified on the privilege log with particularity. The trial court overruled
the privilege claims and ordered the responding party to produce the documents that were
not specifically identified on the log. (Id. at pp. 1068-1070.)
The Court of Appeal granted the responding party’s petition for a writ of
mandate compelling the trial court to vacate its order overruling the objections. (Lockyer,
supra, 122 Cal.App.4th at p. 1081.) The Lockyer court explained that the responding
party had preserved its objections based on the attorney-client privilege and work product
doctrine by timely asserting them in the original response to the inspection demand, and
11
therefore the trial court lacked authority “as a matter of law” to overrule the objections
based on any deficiencies in the responding party’s initial response or privilege log. (Id.
at pp. 1074-1075.) Instead, the propounding party’s remedy was to compel the
responding party to provide a more detailed privilege log that identified each document
with particularity and to present sufficient factual information to allow the propounding
party and the court to evaluate each privilege claim. Even if the responding party failed
to adequately comply with an order to provide a more detailed privilege log, the Lockyer
court emphasized the trial court lacked authority to disregard the privilege objections or
find a waiver based on deficiencies in the privilege log. (Id. at p. 1075.)
C. The Trial Court Erred in Ordering the E-mails Produced Based on Deficiencies in
Petitioners’ Privilege Log
Petitioners contend the trial court abused its discretion because it lacked
authority to order them to produce the e-mails based on the inadequacies the court found
in the privilege log. According to Petitioners, the court’s order amounts to a forced
waiver of the attorney-client privilege and work product doctrine. We agree.
The court’s order does not expressly state Petitioners waived their privilege
objections, but the order’s plain language establishes the court ordered the e-mails
produced based on deficiencies in Petitioners’ privilege log rather than a determination
the attorney-client privilege and work product doctrine did not apply to the e-mails.
(See In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 989 [plain language
of court order governs if it is clear and explicit].) The order states, “[T]he information
supplied by the privilege log produced by [Petitioners] is insufficient to show the entries
therein are protected by either the attorney-client or work product protections.” The
order goes on to explain Petitioners’ log failed to describe the subject matter of the
e-mails and therefore the court could not determine whether the e-mails were privileged.
As explained above, a responding party preserves its objections based on
the attorney-client privilege and work product doctrine by serving a timely written
12
response asserting those objections. It is irrelevant that the objections are asserted as part
of a generic or boilerplate response, or that the responding party failed to serve a timely
and proper privilege log. Once the objections are timely asserted, the trial court may not
deem them waived based on any deficiency in the response or privilege log. (Lockyer,
supra, 122 Cal.App.4th at pp. 1074-1075; Best Products, supra, 119 Cal.App.4th at
pp. 1188-1189; Hernandez, supra, 112 Cal.App.4th at p. 294; Korea Data, supra,
51 Cal.App.4th at pp. 1516-1517; Blue Ridge, supra, 202 Cal.App.3d at p. 347.) Nor
may the court overrule the objections unless it receives sufficient information to decide
whether they have merit. (Lockyer, at pp. 1074-1075; Kaiser Foundation, supra,
66 Cal.App.4th at pp. 1228-1229; Korea Data, at pp. 1515, 1517.) Instead, the court is
limited to ordering further responses and imposing sanctions if the responding party acted
without substantial justification in providing a deficient response or privilege log.
(Lockyer, at p. 1075; Best Products, at p. 1189; Korea Data, at p. 1517.)
Here, it is undisputed Petitioners timely served written responses to
Beatty’s inspection demands that included boilerplate objections based on the
attorney-client privilege and work product doctrine. Accordingly, Petitioners preserved
those objections and the trial court lacked authority to order the objections waived or
overruled based on deficiencies in either Petitioners’ responses or their later privilege
logs. Nonetheless, the court ordered Petitioners to produce 167 e-mails identified in the
most recent privilege log because the information in the log was insufficient. Although
we agree Petitioners’ privilege log is deficient because it fails to provide sufficient
information to allow Beatty and the court to determine whether the e-mails are protected,5
5
For example, we agree with the court’s conclusion the privilege log is
deficient because it fails to provide any description of the documents or their contents
other than to state they are e-mails. That is not sufficient to allow a determination
whether the documents are privileged. Even assuming all of the documents were
communications with an attorney, not all communications with an attorney are
privileged. Instead, the attorney-client privilege attaches only to confidential
communication made in the course of or for the purposes of facilitating the
13
the foregoing authorities demonstrate the court exceeded its authority and therefore
abused its discretion by ordering Petitioners to produce the e-mails.
Instead of ordering Petitioners to produce the e-mails, the trial court should
have ordered Petitioners to provide a supplemental privilege log. (Lockyer, supra,
122 Cal.App.4th at p. 1075; Kaiser Foundation, supra, 66 Cal.App.4th at
pp. 1228-1229.) A privilege log must identify with particularity each document the
responding party claims is protected from disclosure by a privilege and provide sufficient
factual information for the propounding party and court to evaluate whether the claim has
merit. (§ 2031.240, subds. (b) & (c); Wellpoint Health Networks, Inc. v. Superior Court
(1997) 59 Cal.App.4th 110, 130.) The precise information required for an adequate
privilege log will vary from case to case based on the privileges asserted and the
underlying circumstances. In general, however, a privilege log typically should provide
the identity and capacity of all individuals who authored, sent, or received each allegedly
privileged document, the document’s date, a brief description of the document and its
contents or subject matter sufficient to determine whether the privilege applies, and the
precise privilege or protection asserted. (See Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2015) ¶ 8:1474.5, p. 8H-27; Bank of America,
supra, 212 Cal.App.4th at p. 1100; Friends of Hope Valley v. Frederick Co. (E.D. Cal.
2010) 268 F.R.D. 643, 650-651.)
Beatty contends the trial court did not rely on a waiver of the
attorney-client privilege or work product doctrine in granting his motion. Rather, he
argues the court ordered the e-mails produced because Petitioners failed to meet their
burden to show the e-mails were privileged. According to Beatty, Petitioners’ waiver
argument assumes the e-mails are privileged without showing they are. To support this
attorney-client relationship. (Evid. Code, § 952; Kerner v. Superior Court (2012)
206 Cal.App.4th 84, 116-117.) We express no opinion on whether Petitioners’ privilege
log is deficient for any additional reasons.
14
contention, Beatty cites cases stating the general proposition that “[t]he party claiming
the privilege has the burden of establishing the preliminary facts necessary to support its
exercise.” (Costco, supra, 47 Cal.4th at p. 733; see D. I. Chadbourne, Inc. v. Superior
Court (1964) 60 Cal.2d 723, 729; Citizens for Ceres v. Superior Court (2013)
217 Cal.App.4th 889, 911.) We do not find the contention persuasive.
Beatty’s argument and the cases he cites in support fail to address the issue
we confront: whether a trial court may order a party to disclose potentially privileged
information because the party’s privilege log did not provide sufficient information for
the court to evaluate whether the privilege applies. As explained above, the statutory
scheme governing inspection demands and the case law applying it prohibit a trial court
from ordering a timely invoked privilege objection waived or overruled based on
deficiencies in a privilege log. In those circumstances, the remedies available to the court
are limited to ordering a further response that provides sufficient information to allow the
court to rule on the merits. The court also may impose sanctions, including evidence,
issue, and terminating sanctions, if the responding party continues to provide insufficient
information. It does not follow that the responding party’s failure to meet its burden
permits the trial court to find a waiver.
Beatty also contends the 2012 amendment to section 2031.240 authorized
the trial court to find Petitioners waived their privilege objections by serving an untimely
and deficient privilege log. He acknowledges Lockyer, Best Products, Hernandez, Korea
Data, and Blue Ridge hold that failing to serve an adequate privilege log with the written
response does not waive objections based on privilege if the objections were first asserted
in a timely written response. According to Beatty, however, the 2012 amendment
“supplanted” that rule and now requires that a responding party suffer a waiver unless it
has served an adequate privilege log with the written response to the inspection demand.
The plain language of the 2012 amendment refutes Beatty’s argument: “Nothing in this
subdivision shall be construed to constitute a substantive change in case law.”
15
(§ 2031.240, subd. (c)(2); Poole v. Orange County Fire Authority (2015) 61 Cal.4th
1378, 1385 [“‘The plain meaning controls if there is no ambiguity in the statutory
language’”].) Requiring a responding party to serve a privilege log at the same time as
the written response and authorizing a waiver of privileges based on an untimely or
deficient privilege log would produce a substantive change in the law. Thus, the
numerous cases prohibiting a finding of waiver under these circumstances continue to
offer authoritative guidance.
Our decision will result in further trial court proceedings to resolve Beatty’s
discovery demands. Part of the delay, however, arose from the parties’ August 2014
agreement requiring Petitioners to supplement their privilege log by identifying the
sender of each e-mail and all recipients, but not the subject matter or content of the
e-mails. That latter omission is the precise shortcoming that prevented the trial court
from deciding Petitioners’ privilege objections on the merits.
As described above, trial courts have the authority to deter obstructionist
behavior by imposing monetary and other sanctions when a responding party acts without
substantial justification in providing a deficient response or privilege log. The
appropriate use of these powers should minimize the unwarranted delays on display here.
II
DISPOSITION
The petition for writ of mandate or other appropriate relief is granted. Let a
writ of mandate issue directing the respondent court to vacate its May 14, 2015 order
granting Beatty’s motion and compelling Petitioners to produce the e-mails, and to issue
a new order (1) granting Beatty’s motion and compelling Petitioners to serve a
supplemental privilege log that identifies each withheld document with particularity and
provides sufficient factual information for Beatty and respondent court to evaluate each
privilege claim, and (2) awarding Beatty monetary sanctions in an amount to be
16
determined by respondent court. This court’s order staying the May 14, 2015 order is
dissolved upon the finality of this opinion. The parties shall bear their own costs for the
proceedings in this court.
ARONSON, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
THOMPSON, J.
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