Los Angeles, CA asked in Federal Crimes and Health Care Law for California

Q: Role and responsibility of Defense, in preparation for in-camera review of privilege log.

Is it defense responsibility:

To compile privilege log

from discovery responses that defenses already provided throughout discovery;

AND inclusive responses that will be provided to the latest discovery that Plaintiff propounds?

1 Lawyer Answer
James L. Arrasmith
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A: Yes, under California law, it is typically the responsibility of the party asserting a privilege (in this case, the defense) to compile a privilege log for any documents or materials withheld from discovery on the basis of privilege. This includes privileged materials from previous discovery responses as well as any privileged materials responsive to the latest discovery requests propounded by the plaintiff.

The defense's responsibility in preparing for an in-camera review of the privilege log includes:

1. Identifying all documents and materials withheld on the basis of privilege throughout the discovery process.

2. Compiling a detailed privilege log that includes the following information for each privileged item:

a. The date of the document or communication.

b. The author or sender.

c. The recipient(s).

d. A brief description of the document or communication (without revealing privileged information).

e. The specific privilege(s) asserted (e.g., attorney-client privilege, work product doctrine).

3. Ensuring that the privilege log is accurate, complete, and up-to-date, including any privileged materials responsive to the latest discovery requests.

4. Providing the privilege log to the court for in-camera review, if ordered to do so, to assess the validity of the asserted privileges.

It is crucial for the defense to be thorough and diligent in preparing the privilege log, as failing to properly assert and document privileges may result in the waiver of those privileges and the compelled disclosure of the materials in question.

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