MCLE Article: Logging Rights

A privilege log is a traditional --not a statutory--means of protecting documents from discovery

By Michael G. Romey and David D. Johnson

Michael G. Romey is a partner and David D. Johnson is an associate with Latham & Watkins, LLP, where they specialize in environmental and mass tort litigation. Romey is an adjunct professor of environmental law at the University of Southern California School of Law.

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It is a widely held myth that to protect privileged documents or communications from discovery, a lawyer must prepare a privilege log that lists the author, recipient, and the nature or title of each document for which a claim of privilege is made.1 Preparation of a document-by-document log can be very expensive. Further, a number of litigation protections are not aimed at communications but at analytical, investigatorial, and similar processes. These protections include the work product doctrine,2 the peer review immunity,3 and the deliberative process immunity.4 Providing the detailed information that typically appears in a standard privilege log often seriously invades the province of these protections.

A familiar circumstance giving rise to this problem occurs when one party serves a discovery request for all documents regarding an internal investigation--conducted by attorneys for a company in anticipation of litigation--into an alleged corporate fraud. These investigations frequently generate thousands of documents, including memos containing legal analyses, notes of witness interviews, and e-mail messages to persons involved in the investigation. A privilege log for such an investigation conceivably might consist of hundreds of pages. Moreover, the inclusion in the log of standard information concerning the author, recipient, subject matter, and date of requested, albeit privileged, information would provide a virtual road map of what the lawyers were thinking and doing during the investigation--the very processes that the work product doctrine is designed to shield.5

Lawyer are commonly confronted with a discovery request that has the goal of forced production of a privilege log for the improper purposes of either getting a "peek in the window" at privileged or protected information or simply imposing costs on the responding party. These requests are made even though the demanding party has no real expectation that they will result in the production of any documents.

Fortunately for parties facing such requests, neither federal nor California law requires that a document-by-document privilege log be prepared in all cases. Indeed, the words "privilege log" do not appear in either the Federal Rules of Civil Procedure or the California Civil Discovery Act. Rather, a privilege log is merely an administrative convenience to enforce the longstanding requirement under federal and California law that the proponent of a privilege or protection bears the burden of proof for establishing that a privilege or protection applies.6

A standard privilege log is generally well suited to serve this purpose for claims of attorney-client privilege, because it provides the facts necessary for a court to determine that the document truly represents a communication between a lawyer and a client--namely, the identity and character of the communication and the names of the participants. However, for "process" protections rather than communications privileges, the facts in a privilege log disclose not only substantial protected material but also much information that is completely irrelevant to the applicability of these protections. For example, while a memorandum written by a lawyer or a hospital peer review committee member may have a date or recipient, the date of the memorandum and the existence of a recipient may not necessarily be relevant to a determination of the status of the memo as the work product of an attorney or the record of a hospital peer review committee.7

Ninth Circuit Rulings

For attorneys practicing in the Ninth Circuit, recent cases have made it clear that there is considerable flexibility in the form of the information required to establish privileges or protections. The language of Rule 26(b)(5) of the Federal Rules of Civil Procedure is fairly broad. When information is withheld based on a claim of privilege or protection, Rule 26(b)(5) requires the party doing so to "make the claim expressly" and "describe the nature of the documents, communications, or things not disclosed in a manner, that without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection."8 The Advisory Committee Notes to the 1993 Amendment to Rule 26 explain that a document-by-document privilege log may not be required when the preparation of the log is prohibited by its cost or if the log itself would reveal privileged information:

Details concerning time, place, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories....In rare circumstances some of the pertinent information affecting applicability of the claim, such as the identity of the client, may itself be privileged; the rule provides that such information need not be disclosed.9

Federal courts have applied Rule 26(b)(5) in a widely varied fashion, with some courts permitting blanket objections to discovery requests and other courts finding the presence of a waiver if a standard document-by-document privilege log is not served within 30 days pursuant to Rule 34 of the Federal Rules of Civil Procedure.10 Rule 34(b) requires a discovery request to "set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity." In its May 2005 ruling in Burlington Northern & Santa Fe Railroad Company v. United States District Court, the Ninth Circuit held that "boilerplate objections or blanket refusals inserted into a response to a Rule 34 request for production of documents are insufficient to assert a privilege." The court, however, did not designate one particular method that a party must use to establish the basis for its privilege claims:

A district court should make a case-by-case determination, taking into account the following factors: the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient).11

This ruling reaffirms the Ninth Circuit's flexible approach to establishing privileges, as expressed in its 1992 ruling In re Grand Jury Investigation, in which it noted that "[w]e have previously recognized a number of means of sufficiently establishing the privilege, one of which is the privilege log approach."12 Significant alternatives to standard privilege logs that have been held acceptable by federal courts include declarations and "category privilege logs."13

State Court Authority

Attorneys practicing in California state courts also have authority for selecting among various approaches in establishing the bases for privileges or protections. The Civil Discovery Act is similar to Rule 26(b)(5) in that it requires a party responding to a demand for production of documents to do both of the following:

(1) Identify with particularity any document...falling within any category of item in the demand to which an objection is being made.
(2) Set 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. If an objection is based on a claim that the information sought is protected work product..., that claim shall be expressly asserted.14

In contrast to the federal rule, California courts have held that "blanket" objections made in a response to a discovery request are sufficient to preserve privileges or protections. Under California law, the failure to serve a privilege log does not act as a waiver of privileges or protections.15 Further, several recent state court cases have held that a privilege log is not specifically required by the Civil Discovery Act. In Hernandez v. Superior Court, the court of appeal noted that:

[T]he expression "privilege log," does not appear in section 2031 or anywhere else in the Code of Civil Procedure, whether in black letters or any other color. The expression is jargon, commonly used by courts and attorneys to express the requirements of subdivision (g)(3) of section 2031.16

The court of appeal further noted that "[t]he 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."17 While a court may order production of a privilege log in response to a motion to compel,18 Hernandez and its progeny indicate that a wide variety of methods are permissible to support a claim of privilege or protection--as long as the methods provide information that is sufficient for the court to evaluate the privilege or protection claim.

Alternatives to Standard Logs

Among the more common alternatives to standard privilege logs are declarations and category privilege logs. The key in both methods is to provide enough information so that a court will be able to evaluate the applicability of the privilege or protection to particular documents.

A declaration by itself may be appropriate when a discovery request seeks production of an entire class of privileged documents. For example, in a 1974 case, the California Court of Appeal relied only on an "argumentative memorandum" filed by the responding party, a declaration filed by the requesting party, and related documentary evidence to determine that the peer review immunity applied to records of several hospital committees.19

In a more recent federal case, a plaintiff sought production from defendant General Motors of documents relating to an internal corporate investigation conducted by William H. Webster, a former federal judge and former director of the Federal Bureau of Investigation and the Central Intelligence Agency. These documents are referred to in the case as the "Webster reports." To support General Motors with its claims of attorney-client privilege and work product protection for the Webster reports, Webster submitted a declaration in which he:

1) Stated that he had been retained by General Motors to conduct an internal investigation in anticipation of litigation.
2) Provided the date of his retention.
3) Gave a brief description of the subject of the investigation.
4) Stated that his investigation was performed with the expectation of confidentiality.
5) Provided a general description of the type of work involved and materials generated by the investigation.
6) Stated that the materials represented his work product.20

The court held that the declaration was sufficient, stating that "[t]he nature of the information set forth in the affidavit is sufficiently comprehensive to establish the privileged nature of the material sought."21

A category privilege log may be appropriate when more detail is required to demonstrate that particular types of documents are privileged. Category privilege logs are not as well known as document-by-document privilege logs, but they have been in use, at least occasionally, for decades. The concept of a category privilege log is also specifically referred to in the Advisory Committee Notes to the 1993 Amendment to Rule 26, which state that it can be sufficient to describe privileged documents "by categories."22

In United States v. United States Optical Company, a 1965 district court case, the federal magistrate held that a category privilege log submitted in support of invocations of the informer's privilege and work product protection was sufficient to establish the claims. The items in the log included:

A. Documents as to which a claim of work product privilege is asserted.
1. Memoranda prepared by government attorneys for the purpose of advising their superiors of the theory of the case, together with the responses made by such superiors.
2. Memoranda prepared by government attorneys reporting on conferences with defense counsel.
3. Memoranda prepared by government attorneys reporting on oral interview with persons in the ophthalmic industry....
8. Letter prepared by government attorneys, addressed to persons in the ophthalmic industry, requesting information concerning the industry....
B. Documents as to which a claim of informers' privilege is asserted.
11. Communications to the Department of Justice from persons other than those identified heretofore in this case as witnesses for the government, informing of alleged violations of law in the ophthalmic industry.23

A simpler approach was mandated by a federal magistrate in Imperial Corporation of America v. Shields, a 1997 Southern District of California case involving a document request for substantial amounts of information protected by the work product doctrine and the attorney-client privilege. The court ordered the responding plaintiff to:

[P]roduce a privilege log as to documents for which a privilege or protection is claimed; that contains the following information:
1. An aggregate listing of the numbers of the withheld documents;
2. An identification of the time periods encompassed by the withheld documents;
3. An affidavit containing the representation(s) that:
(a) the withheld documents were:
(1) either prepared to assist in anticipated or pending litigation, or
(2) contain information reflecting communications between (i) counsels or counsels' representatives, and (ii) plaintiffs or plaintiffs' representatives, for the purpose of facilitating the rendition of legal services to plaintiffs; and,
(b) intended to be confidential communications.24

The information required in a category privilege log will largely depend on factors such as the nature of the document request and the variety of the types of privileged documents that exist. The only essential element is that the log (or declaration) must contain sufficient detail for a court to determine that the protection sought for the documents by the responding party is applicable.25

Invoking Protection

While there is Ninth Circuit and California state court authority for the use of alternative methods to establish privileges and other litigation protections, courts and attorneys still bring to this issue an ingrained expectation that a standard privilege log is the one method that is necessary and required.

In its 2005 ruling in Burlington Northern, the Ninth Circuit stated that while other alternatives to establishing privileges exist, only "providing particulars typically contained in a privilege log is presumptively sufficient."26 Accordingly, a party considering the use of an alternative to a standard privilege log in a federal court may want to seek a protective order to ensure that the court will consider its form of proof sufficient.27 Another approach is for a responding party to meet and confer with the demanding party to reach an agreement that the proposed form of proof is acceptable.

Responding parties in California cases are in a slightly better position than responding parties in federal cases. Recent California decisions have held that serving boilerplate objections invoking the relevant privileges or protections avoids a waiver of them.28 However, these same cases also state that boilerplate objections do not meet the requirements of the Civil Discovery Act and may be subject to sanctions other than a waiver.29 Further, a motion to compel filed by the demanding party may result in a court order to produce the very privilege log the responding party wished to avoid.30 To prevent such a result, a responding party should consider either preemptively serving, or at least meeting and conferring with the requesting party concerning, the document that will be used to provide the basis for the responding party's claimed privileges or protections.

Endnotes

1 See, e.g., R. Weil & I. Brown, California Practice Guide: Civil Procedure Before Trial §8:1474.5 (2005) ("To comply with [Code of Civil Procedure] §2031.240(b), the responding party should prepare a 'privilege log' that identifies each document for which a privilege is claimed, its author, recipients, date of preparation, and the specific privilege claimed.").
2 Code Civ. Proc. §2018.
3 Evid. Code §1157.
4 See Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1339-44 (1991).
5 See Seebeck v. General Motors Corp., No. CIV 1:96-CV-449-WCO, 1996 WL 742914 (N.D. Ga. May 17, 1996) (finding that a preparation of a document-by-document privilege log to demonstrate the applicability of the work product protection to an attorney's interview notes with witnesses would "provide a plaintiff with a window into the [attorney's] thought processes").
6 See In re Grand Jury Investigation (United States v. The Corp.), 974 F. 2d 1068, 1070-71 (9th Cir. 1992) ("The party asserting the attorney-client privilege has the burden of proving that the privilege applies to a given set of documents or communications."); Santa Rosa Mem'l Hosp. v. Superior Court, 174 Cal. App. 3d 711 (1985) (The party asserting the hospital peer review discovery immunity has the burden of proving that the privilege applies.).
7 The applicability of the hospital peer review discovery immunity is dependent on whether the document in question constitutes or reflects the "proceedings" or "records" of a hospital peer review committee. The identity of the author of the document, its recipients, or its subject matter are not relevant factors for consideration. See Evid. Code §1157(a); Alexander v. Superior Court, 5 Cal. 4th 1218, 1223-24 (1993) (Peer review immunity applies if the documents in question are "'records' of medical staff committees."); Cedars-Sinai Med. Ctr., Inc. v. Superior Court, 12 Cal. App. 4th 579, 587 (1993) ("Section 1157 prevents...discovering the identity of the physicians who participated" in peer review processes.).
8 Fed. R. Civ. P. 26(b)(5).
9 Fed. R. Civ. P. 26, Advisory Committee Notes to 1993 Amendment.
10 Fed. R. Civ. P. 34; see discussion and cases cited in Burlington N. & Santa Fe R.R. Co. v. United States Dist. Court, 408 F. 3d 1142 (9th Cir. 2005); Banks v. Office of the Senate Sergeant At Arms & Doorkeeper, 226 F.R.D. 113, 116 (D. D.C. 2005) ("[F]ederal courts have not hesitated to invoke the extreme sanction of waiver when a party fails to submit its privilege log in a timely manner."); First Sav. Bank v. First Bank Sys., Inc., No. 95-4020-SAC, 1995 WL 250394 (D. Kan. Mar. 30, 1995) (finding waiver when a privilege log was not served until three weeks after a party served its discovery objections).
11 Burlington N., 408 F. 3d at 1149.
12 In re Grand Jury Investigation (United States v. The Corp.), 974 F. 2d 1068, 1071 (9th Cir. 1992).
13 For Ninth Circuit precedent for the use of declarations to establish the basis for privileges, see In re Grand Jury Investigation, 974 F. 2d at 1071. For Ninth Circuit precedent on the use of category privilege logs, see Imperial Corp. of Am. v. Shields, 174 F.R.D. 475 (S.D. Cal. 1997).
14 Code Civ. Proc. §2031.240(b).
15 Hernandez v. Superior Court, 112 Cal. App. 4th 285, 294 (2003) ("We agree with petitioners that a forced waiver of the attorney-client privilege is not an appropriate sanction for a tardy 'privilege log,' so long as the privilege is invoked in a timely manner."); Korea Data Sys. Supply Co., Ltd. v. Superior Court, 51 Cal. App. 4th 1513, 1516 (1997) ("[T]he court erred in finding the attorney-client privilege waived by the untimely filing of a privilege log."). See also Best Prods., Inc. v. Superior Court, 119 Cal. App. 4th 1181, 1188-89 (2004); People ex rel. Lockyer v. Superior Court, 122 Cal. App. 4th 1060, 1073 (2004).
16 Hernandez, 112 Cal. App. 4th at 292.
17 Id.
18 People ex rel. Lockyer, 122 Cal. App. 4th at 1073.
19 Matchett v. Superior Court, 40 Cal. App. 3d 623, 630 (1974).
20 Seebeck v. General Motors Corp., No. CIV 1:96-CV-449-WCO, 1996 WL 742914, at *3 (N.D. Ga. May 17, 1996).
21 Id.
22 See also SEC v. Thrasher, No. 92 CIV. 6987 (JFK), 1996 WL 125661 (S.D. N.Y. Mar. 20, 1996) ("[I]n appropriate circumstances, the court may permit the holder of withheld documents to provide summaries of the documents by category or otherwise limit the extent of his disclosure. This would certainly be the case if (a) a document-by-document listing would be unduly burdensome and (b) the additional information to be gleaned from a more detailed log would be of no material benefit to the discovering party in assessing whether the privilege claim is well grounded."); United States v. Gericare Med. Supply Inc., No. Civ. A.99.0366-CB-L, 2000 WL 33156442 (S.D. Ala. Dec. 11, 2000) ("The plaintiff provided a privilege log by category rather than by individual document....A
document-by-document privilege log would have revealed the identity of each person interviewed, information that itself would reveal the plaintiff's strategy and mental processes. Because Rule 26(b)(5) does not require a party to sacrifice work product protection
in order to assert it, a category-by-category log was appropriate.").
23 United States v. United States Optical Co., 37 F.R.D. 233, 235 (E.D. Wis. 1965).
24 Imperial Corp. of Am. v. Shields, 174 F.R.D. 475, 479 (S.D. Cal. 1997); see also Southern Scrap Material Co., LLC v. Fleming, No. Civ. A. 01-2554, 2002 WL 31741243 (E.D. La. Dec. 5, 2002) (category privilege log deemed acceptable by the court).
25 See United States v. KPMG LLP, 316 F. Supp. 2d 30 (D. D.C. 2004) (denying request to permit accounting firm to prepare a category privilege log, although the court "acknowledge[d] both the burden of [preparing the standard privilege log] and the Court's discretion to permit KPMG to prepare a less burdensome category-by-category privilege log." The court stated that "[t]he essential function of a privilege log is to permit the opposing party, and ultimately the court, to evaluate a claim of privilege. Allowing KPMG to prepare an even less detailed, category-by-category privilege log would not further this determination.").
26 Burlington N. & Santa Fe R.R. Co. v. District Court, 408 F. 3d 1142, 1149 (9th Cir. 2005).
27 Id. at 1149 n.3.
28 People ex rel. Lockyer v. Superior Court, 122 Cal. App. 4th 1060, 1072-75 (2004).
29 Korea Data Sys. Supply Co., Ltd. v. Superior Court, 51 Cal. App. 4th 1513, 1516 (1997).
30 Best Prods., Inc. v. Superior Court, 119 Cal. App. 4th 1181, 1189 (2004) (If a response to a request is too general, the requesting party may file a motion to compel and "[i]n that context, defendant could be required to produce a privilege log that is sufficiently specific so the trial court could determine whether a specific document is or is not privileged.").

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