The Court of Appeal explained that attorney-client privilege and work product protection objections are preserved by serving timely written discovery responses asserting such objections. It is irrelevant that the objections are asserted as part of boilerplate responses, or that responding party fails to serve a timely or sufficient privilege log.
Full Answer
If the responding party thereafter fails to adequately comply with the court’s order and provide the information necessary for the court to rule on the privilege objections, the propounding party may bring another motion seeking a further response or a motion for sanctions. At that stage, the sanctions available include evidence, issue, and even terminating sanctions, in addition to further monetary sanctions. (§ 2031.310, subd. (i).)
But the court may not impose a waiver of the attorney-client privilege or work product doctrine as a sanction for failing to provide an adequate response to an inspection demand or an adequate privilege log. (Lockyer, supra, 122 Cal.App.4th at p. 1075; Best Products, supra, 119 Cal.App.4th at p. 1189 [“the statute does not include as an authorized sanction a judicial order that a privilege has been waived”]; Hernandez, supra, 112 Cal.App.4th at p. 294; Korea Data, supra, 51 Cal.App.4th at p. 1517; Blue Ridge, supra, 202 Cal.App.3d at p. 347.)
Can a trial court order a party to disclose potentially privileged information because the party’s privilege log did not provide sufficient information for the court to evaluate whether the privilege applies? According to the Fourth District Court of Appeal, Division Three in Catalina Island Yacht Club v. The Superior Court of Orange County filed December 4, 2015 the answer is NO!
A client who voluntarily testifies to a privileged matter, who publicly discloses such matter, or who permits his attorney to testify regarding the matter is deemed to have impliedly waived the attorney-client privilege. Veras Inv. Partners, 52 A.D.3d at 375 (citations omitted). A client is also deemed to have waived the privilege when it affirmatively places the subject matter of its privileged communication “at issue” in the litigation, “so that invasion of the privilege is required to determine the validity of the [client]’s claim or defense, and application of the privilege would deprive the opposing party of vital information. Id. (citing Deutsche Bank Trust Co. of Ams. v. Tri-Links Inv. Trust, 43 A.D.3d 56, 63-64 (1st Dept. 2007)).
“The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship .” Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 623 (2016). The privilege “fosters the open dialogue between lawyer and client that is deemed essential to effective representation.” Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 377 (1991)). “It exists to ensure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his confidences will not later be exposed to public view to his embarrassment or legal detriment.” Matter of Priest v. Hennessy, 51 N.Y.2d 62, 67-68 (1980).
In Securitized Asset Funding, the Court found that there was no “at-issue” waiver because CIBC was not relying on any privileged material to support its claims or defenses. In fact, as noted, it specifically disavowed use of those materials, because its defense could be litigated through other non-privileged materials.
Finally, CIBC contended that the testimony referred to by plaintiff did not disclose the content of any privileged communications with counsel or any advice from counsel. That testimony, CIBC maintained, merely demonstrated that there was communication with counsel but did not refer to any of the substance of the advice given by counsel. And, CIBC said, even if some testimony about an understanding of privileged material was mistakenly disclosed, it would not constitute a waiver of all testimony.
In opposition, CIBC maintained that it did not intend to rely on any of the privileged documents or communications to support its mistake defense. Rather, it intended to rely on non-privileged contemporaneous documents, witness testimony, and the parties’ course of conduct and performance. CIBC noted that plaintiff even admitted that it did not need the privileged documents and testimony to defend against CIBC’s arguments because it could rely on other documents and testimony.
It is well settled that communications between an attorney and a client for the purpose of obtaining legal advice are privileged and not discoverable unless the privilege is deemed to have been waived by the client. Veras Inv. Partners, LLC v. Akin Gump Strauss Hauer & Feld LLP, 52 A.D.3d 370, 374 (1st Dept. 2008) (citing Jakobleff v. Cerrato, Sweeney & Cohn, 97 A.D.2d 834, 835 (2d Dept. 1983)).
CIBC further contended that mistake was not its only defense in the action, and, in any event, a mistake defense could be asserted successfully without waiving the privilege. According to CIBC, advancing the defense of mistake did not automatically result in an “at-issue” waiver of the privilege.
FN 2. California Rules of Court, rule 317 (a), requires opposing papers to be served and filed at least five court days before the time appointed for the hearing.
On October 23, 1987, Blue Ridge filed a motion for: (1) reconsideration of the order granting the motion to compel (§ 1008); (2) an order granting relief from default in failing to file timely opposition to the motion to compel (§ 473); and (3) relief from default in failing to serve a timely verification. The matter was heard December 4, 1987, and the relief sought was denied. Blue Ridge was ordered to produce all documents without objection within 10 days, and to pay the Kippens sanctions in the sum of $350.
However, the court, on motion, may relieve that party from this waiver on its determination that (1) the party has subsequently served a response that is in substantial compliance ..., and (2) the party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect."
Former section 2031, subdivision (b), the controlling statute here, provided in relevant part: "The party upon whom the request is served shall serve a written response subscribed under oath by such party, ... If objection is made to part of an item or category, the part shall be specified." While less than clear, the statute does not appear to require that objections be verified in order to be preserved. fn. 4, fn. 5
Superior Court, supra, 155 Cal.App.3d at pages 484-488, the plaintiffs did not provide a factual basis for their claims that certain documents were protected from discovery by the attorney/client and work product privileges until one day beyond the deadline to comply with a trial court order requiring the showing. Pursuant to former section 2034, the trial court imposed the sanction of compelling full production and ruled any existing privilege was waived.
Motown held the trial court abused its discretion in compelling full production due to the slight delay in compliance , as the sanctions imposed [202 Cal. App. 3d 346] "were excessive in that they [were] not reasonably calculated to achieve the purpose of effecting compliance with discovery and [were] punitive in nature." (Id., at p. 490.)
On August 4, 1987 , Blue Ridge produced the documents it considered nonprivileged. On August 12, 1987, Blue Ridge served the Kippens with a verification to its response of July 1, 1987. On October 2, 1987, Blue Ridge identified the 14 documents not being produced on privilege grounds.