New Requirement Re: Justifying Privilege Objections

Until recently, when a party in litigation refused to produce certain documents on the grounds of privilege or work product, the opposing party was often left to wonder what exactly was being withheld and whether one or more of the withheld documents might be a “game changer” in the case. Sometimes the responding party would provide a privilege log, describing the responsive documents that it was not providing, but it was never clear whether this was required.

Fortunately, the California legislature has now attempted to remedy that situation. Code of Civil Procedure section 2031.240 has been amended, effective January 1, 2013, to now require that “[i]f an objection [to a request for production] is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” CCP 2031.240(c)(1).

Although the new requirement does not specify exactly what “factual information” is required and does not necessarily require a privilege log in every instance, it is now at least clear that making a blanket objection to a request for production on the grounds of privilege or work product is insufficient. It is fairly clear that the responding party has to make some effort to identify the specific document(s) that are being withheld. That should give the propounding party some basis for determining: (a) what is being withheld, (b) whether the claim of privilege or work product appears, on its face, to be valid and (c) whether a particular document being withheld seems to be important enough in the scheme of things to justify a motion to compel.

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