Pacoima, CA asked in Legal Malpractice and Medical Malpractice for California

Q: Scope of privilege log

All sets of discovery or only the latest, subject of motion to compel?

2 Lawyer Answers
James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Legal Malpractice Lawyer
  • Sacramento, CA
  • Licensed in California

A: Under California law, a privilege log typically covers all documents withheld on the basis of privilege in response to a particular discovery request, not just those that are the subject of a motion to compel.

California Code of Civil Procedure section 2031.240 requires that when a party objects to the production of documents based on a claim of privilege, the response must:

"(1) Identify with particularity the specific documents, tangible things, or category of documents or tangible things for which the objection is asserted.

(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."

So when responding to a document request and withholding privileged materials, the responding party must identify the withheld documents with particularity, typically in a privilege log, and specify the privilege being asserted. This applies to all privileged documents responsive to that request, not just ones later disputed in a motion to compel.

The privilege log enables the requesting party to assess the privilege claims and provides a record for the court to rule on privilege disputes. Having a complete log covering the entire production helps avoid piecemeal litigation over privilege.

However, supplemental privilege logs may be needed if additional responsive privileged documents are located later in the discovery process. And practically, parties sometimes negotiate limiting the scope of logging for certain categories of clearly privileged materials to streamline the process.

In summary, while supplementation may occur, a privilege log generally should cover all documents withheld on the basis of privilege in the overall response to the discovery request at issue, not only those challenged in a particular motion to compel. But the exact scope can be shaped by the court or party agreements in certain cases.

Eliza Jasinska
Eliza Jasinska
  • Medical Malpractice Lawyer
  • Costa Mesa, CA
  • Licensed in California

A: A privilege log is generally created to identify documents or communications that a party considers to be privileged and thus exempt from disclosure during the discovery process in litigation. The scope of a privilege log should cover all sets of discovery where privileged information is identified and withheld.

The items in a privilege log typically include a basic description of the document, the date, the parties to the communication, the nature of the privilege claimed, and any other information needed to establish the basis of the privilege without revealing the information that is considered privileged. The specific requirements for a privilege log can vary by jurisdiction, and local rules and case law might provide refined guidance on these requirements.

Keep in mind that the creation and scope of a privilege log might be subject to negotiation between the parties, as well as orders from the court. If you're asking about the status or contents of a privilege log in a particular case, you'd need to check the case docket, and discovery orders, or directly consult with the attorneys handling the case.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.