Catalina Island Yacht Club v. Superior Court
Court of Appeal of California, Fourth Appellate District, Division Three
December 4, 2015, Opinion Filed
[**696] ARONSON, J.—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 because serving a deficient privilege log, or even failing to serve a privilege log, is not [***2] one of the three statutorily [*1121] 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 [***3] on petitioners' failure to meet their burden to establish the 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 [**697] 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.Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.
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242 Cal. App. 4th 1116 *; 195 Cal. Rptr. 3d 694 **; 2015 Cal. App. LEXIS 1088 ***
CATALINA ISLAND YACHT CLUB et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; TIMOTHY BEATTY et al., Real Parties in Interest.
Prior History: [***1] Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, No. 30-2013-00679575, Kirk H. Nakamura, Judge.
Disposition: Petition granted.
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Civil Procedure, Appeals, Appellate Jurisdiction, Interlocutory Orders, Discovery & Disclosure, Discovery, Privileged Communications, Writs, Common Law Writs, Mandamus, Standards of Review, Abuse of Discretion, Discovery, Misconduct During Discovery, Motions to Compel, Reviewability of Lower Court Decisions, Preservation for Review, Privileged Communications, Attorney-Client Privilege, Evidence, Privileges, Attorney-Client Privilege, Waiver, Work Product Doctrine, Waiver of Protections, Work Product Doctrine