Deficient Privilege Log Does Not Waive Attorney-Client Privilege and Work Product Doctrine

Author: Kevin Rogers

In Catelina Island Yacht Club v. Superior Court (Beatty), 2015 WL 7951258, a California appeals court held an inadequate privilege log did not waive attorney-client privilege and work product doctrine.

FACTS

Timothy Beatty sued the Catalina Island Yacht Club and the board of directors (collectively “Yacht Club”) alleging they conspired to remove him from the board of directors and suspended his membership in the yacht club.

The Yacht Club timely responded to request for production of documents, which included objections based on the attorney-client privilege and work product doctrine.  Two months later, the Yacht Club served a privilege log identifying “communications” they withheld based on the attorney-client privilege and work product doctrine.  The privilege log only provided the date of the communication and stated it was between “counsel for Defendants and Defendants.”  The Yacht Club later supplemented the privilege log identifying the communications as e-mails and the sender and all recipients of each e-email.

Beatty later filed a motion to compel the Yacht Club to produce 167 e-mails, arguing the Yacht Club waived the attorney-client privilege and work product doctrine by serving a deficient privilege log.  The trial court granted the motion and ordered production of the emails.  The trial court ruled the information supplied by the privilege log produced by the Yacht Club was insufficient to show the entries were protected by the attorney-client privilege and work product doctrine.

RULING

The Court of Appeal concluded failing to serve a privilege log or serving an inadequate privilege log does not fall into the three recognized methods for waiving the attorney-client privilege: 1) disclosing a privileged communication in a nonconfidential context; 2) failing to claim the privilege; and 3) failing to assert the privilege in a timely response to an inspection demand.  Thus, once the responding party preserves the attorney client and/or work product objections by timely asserting them in response to an inspection demand, a trial court lacks authority to force waiver of those objection even if the responding party fails to serve a privilege log, serves an untimely privilege log, or serves a deficient privilege log.

ABOUT THE AUTHOR

Kevin Rogers is a graduate of University of San Diego School of Law. He specializes in general liability, professional liability, and business litigation. Contact him at krogers@tysonmendes.com.

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