A former member of the board of directors of a yacht club sued the club and its board, alleging they conspired to remove him and suspend his membership. His pleading alleges libel, slander, invasion of privacy and IIED. Plaintiff sought to inspect documents, and defendants responded with boilerplate objections based on the attorney-client privilege and the work product doctrine. Two months later, defendants served plaintiff an inadequate privilege log. The court became involved and defendants served a supplemental log, increasing the number of withheld documents from 17 to 36. The gamesmanship continued. Plaintiff responded with a motion for sanctions. The trial court granted the motion and ordered defendants to produce 167 emails, and pay $1,140 in monetary sanctions. On the defendants’ petition for extraordinary relief, this is how the Court of Appeal framed and analyzed the issue: “May a trial court find a waiver of the attorney-client privilege and work product doctrine when the objecting party submits an inadequate privilege log that fails to provide sufficient information to evaluate the merits of the objections? No. [¶] . . . a trial court may order the responding party to provide a further privilege log that includes the necessary information to rule on those objections, but may not order the privileges waived based on deficiencies in the privilege log. . . The court may impose monetary sanctions for providing a deficient privilege log, and it may impose evidence, issue, and even terminating sanctions. . . but a forced waiver is not authorized by either the statutory scheme establishing the attorney-client privilege or the discovery statutes once the responding party preserves the objections by timely asserting them in response to an inspection demand.” (Catalina Island Yacht Club v. Sup.Ct. (Timothy Beatty) (Cal. App. Fourth Dist., Div. 3; December 4, 2015) 242 Cal.App.4th 1116 [195 Cal.Rptr.3d 694].)Even When Privilege Log Is Inadequate, Judicially Forced Waiver Of Privileged Documents Not Authorized.
A former member of the board of directors of a yacht club sued the club and its board, alleging they conspired to remove him and suspend his membership. His pleading alleges libel, slander, invasion of privacy and IIED. Plaintiff sought to inspect documents, and defendants responded with boilerplate objections based on the attorney-client privilege and the work product doctrine. Two months later, defendants served plaintiff an inadequate privilege log. The court became involved and defendants served a supplemental log, increasing the number of withheld documents from 17 to 36. The gamesmanship continued. Plaintiff responded with a motion for sanctions. The trial court granted the motion and ordered defendants to produce 167 emails, and pay $1,140 in monetary sanctions. On the defendants’ petition for extraordinary relief, this is how the Court of Appeal framed and analyzed the issue: “May a trial court find a waiver of the attorney-client privilege and work product doctrine when the objecting party submits an inadequate privilege log that fails to provide sufficient information to evaluate the merits of the objections? No. [¶] . . . a trial court may order the responding party to provide a further privilege log that includes the necessary information to rule on those objections, but may not order the privileges waived based on deficiencies in the privilege log. . . The court may impose monetary sanctions for providing a deficient privilege log, and it may impose evidence, issue, and even terminating sanctions. . . but a forced waiver is not authorized by either the statutory scheme establishing the attorney-client privilege or the discovery statutes once the responding party preserves the objections by timely asserting them in response to an inspection demand.” (Catalina Island Yacht Club v. Sup.Ct. (Timothy Beatty) (Cal. App. Fourth Dist., Div. 3; December 4, 2015) 242 Cal.App.4th 1116 [195 Cal.Rptr.3d 694].)