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Logging Your Privilege Claims

table_165508067Are you objecting to a request to turn over a document based on privilege? You better log it.

Under California law, a party objecting to a demand for inspection has to identify each item to which the party is objecting and state the specific ground for the objection.

If an objection is based on a claim of privilege or work product protection, the response must provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log. CCP §2031.240(c)(1).

The requesting party can challenge an assertion of privilege by filing a motion to compel a response. CCP §2031.310(a)(3). That party can also move to compel further responses based on a party’s conclusory privilege objections. That’s where the log comes in: the responding party must produce a privilege log with enough detail for the trial court to determine whether a specific document is privileged.

Although CCP §2031.240 newly codifies the concept of a privilege log, it defers to case law to interpret what constitutes sufficient identifying information on claims of privilege or work product protection. Generally, a privilege log is sufficient if it identifies

  1. the nature of the document (e.g., letter, memorandum),
  2. date,
  3. author,
  4. recipients,
  5. the document’s sequential number (or document control number, if any), and
  6. the privilege claimed.

How specific you need to be in your privilege log can be a fine balance: you have to be specific enough that the trial court can determine whether each withheld document is or is not privileged, but you have to be careful to protect the attorney-client relationship by not disclosing any more information than is necessary to establish the basis for the privilege claim.

A privilege log can be very helpful to the attorney preparing it, notwithstanding the effort required, because

  • it may head off a motion to compel or a motion for protective order by showing that the documents being withheld are legitimately privileged;
  • it forces the attorney to examine and carefully consider each document listed—this is a far more rigorous exercise than a boiler-plate assertion of “privilege”; and
  • if a motion does become necessary, it furnishes a basis on which the court can make a determination without actually reviewing the documents in camera (in fact, a privilege log will be essential in disputes involving attorney-client privilege in which the court may not be permitted to conduct an in camera review).

Demands for inspection now routinely include a request for production of e-mail communications between certain parties or on certain subjects. This is hazardous territory because e-mail communications are often informal and not as carefully considered as letters or memorandums. You need to treat e-mails the same as traditional correspondence: if you’re withholding based on privilege, use a privilege log.

For a comprehensive look at evaluating privileges and a sample privilege log, turn to CEB’s California Civil Discovery Practice, chapter 3.

Also check out the CEB blog’s other discovery-related posts!

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

5 Responses

  1. The point is to avoid having to make a document-by-document privilege log where possible. The court has the inherent power to order a document-by-document log if it wants to, but I think that in many situations, a category-by-category privilege is sufficent for the initial response to discovery. What do you think? Caselaw cites?

    • Hi Brian. I discussed this with the attorney editor who handles CEB’s California Civil Discovery Practice and it’s not clear that a category by category claim of privilege, even preliminarily, would be acceptable. CCP 2031.240(b) clearly requires that objections state with particularity each item falling within the demand as to which the responding party is making an objection.

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