Potential Pitfalls with Privilege Logs – California Case Law

Posted by Alison ONeill | Mon, Jul 13, 2020

Why is it that the things that are good for us are so often just no fun? Things that come to mind are exercise, root canals, and privilege logs. Though these things may seem intimidating, it feels good once they have been accomplished.

It is best to create good habits early on to avoid the many pitfalls associated with procrastination and delay. There always seems a good excuse to push off these matters but the more they are set aside the more difficult it is to summon the energy to do what you know is good for you (or your client)

It is essential to know the privilege log requirements and expectations of your jurisdiction and your particular judge prior to engaging in your privilege log review. Some courts are stringent in their requirements while other are lax.


Privilege Log - Sample California Case Law - Miller v Hobbs, CA Ct App 285748 (Feb. 2020)

Dependence on overbroad privilege reasons may not only harm your case but may result in monetary sanctions being imposed as in the recent case of Miller v Hobbs, CA Ct App 285748 (Feb. 2020).

In Miller v Hobbs, Judge Hoffstadt imposed a $5000 sanction on Attorney Najila D. Brent citing discovery misconduct which included issues such as a response which asserted privileged documents, no privilege log was included in the response.

Months later when Brent produced a privilege log it contained only a paragraph that did not refer to any specific documents or communications but contained only vague assertions regarding the reason for withholding various documents as privileged.  Brent continued to provide the same woefully inadequate privilege log in a second supplemental response.


California Privilege Log Requirements

California privilege log case law spells out what a party must do when asserting privilege. According to the Catalina island court and reflected in the California code of Civil procedure, privilege log compliance processes must include the following.

Where privilege is asserted the party must:

“provide a privilege log that identifies with particularity each document the responding party claims is protected from disclosure by aa privilege and provide sufficient factual information for the propounding party and court to evaluate whether the claim has merit” Catalina Island Yacht Club v Superior Court 242 Cal.App.4th 1116 (2015)


The Catalina Island court went on to specify what need be included in a sufficient California privilege log:

  • “the identity and capacity of all of the 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”
  • “the precise privilege or protection asserted”

(Catalina Island, 1130)

The court in Catalina gives a road-map on California privilege log requirements to help parties create and provide a sufficient privilege log. Now comes the task of creating a reasonable, efficient way to meet those requirements


Create A Privilege Log To Comply With Requirements For California Or Any Jurisdiction

In order to make the exercise of creating a privilege log as painless as possible it is necessary to have the means to help you reach your goal. Your eDiscovery platform should make creating a privilege log as stress and frustration free as possible by providing you the tools needed for success

Digital WarRoom is an Ediscovery platform that has the tools in place to make the exercise of creating a privilege log a convenient part of your e-Discovery workflow. As you review your data and mark documents as privileged you can add your privilege (work product, attorney client, etc) and the reason for asserting the privilege as well as any relevant comments all on one  screen.  Digital WarRoom makes it simple to create your privilege log while you are actively reviewing and marking documents. There is no need to pull up other screens, documents, or programs to create the privilege log, you can enter the privilege information quickly and easily before moving on the next document.

To avoid the potential pitfalls resulting from an insufficient privilege log, develop the habit of documenting the privilege, the reason for the privilege and any relevant comments before moving on to the next document in review. While creating a privilege log may be no fun, it feels good once it has been accomplished.