Judge: David A. Hoffer, Case: 30-2020-01130613, Date: 2023-07-24 Tentative Ruling
Defendants Jason Lilly Association, Steve McKay, Michele McKay, Jason Lilly, Josiah Lilly, and Jason Lilly, LLC (“Defendants” together”), Motion to Compel Production (“Motion”) from plaintiff Chasen Stanley’s (“Plaintiff”) counsel of record Craton, Switzer & Tokar LLP (“CST”) is GRANTED in part and DENIED in part.
GRANTED as to CST being required to produce a more detailed privilege log.
DENIED as to CST being ordered to produce documents responsive to subpoena request Nos. 4 – 7 at this time.
Before the court is a request to order Plaintiff’s current counsel of record to produce documents responsive to a subpoena duces tecum (“Subpoena”). (Civ. Proc. Code § 2031.240.) The basis for the Subpoena is that CST previously represented Plaintiff and his mother/bankruptcy attorney Amanda J. Potier in another action (“CTI Action”). Several of the Defendants in this matter jointly retained CST for approximately two-weeks in the CTI Action before terminating CST’s representation. Defendants contend the CTI Action is relevant to the present action and that discovery into CST’s representation of the parties in that action is necessary to determine potential disqualification in the present action. In order to determine these issues, Defendants served CST with the Subpoena. (Nevarez Decl., Ex. A.) In response, CST served objections based upon attorney-client privilege and attorney work product. (Civ. Proc. Code § 2018.030.) CST eventually produced a brief privilege log. (Nevarez Decl., Ex. D.)
“It is elementary in civil discovery that if documents responsive to a document request are withheld on privilege grounds, a privilege log or some equivalent specification of any asserted privilege objection “shall” be supplied. (Code Civ. Proc., § 2031.240.) This feature of the Discovery Act prevents secret positions from being taken to justify the withholding of documents claimed to be secret.” (Roche v. Hyde (2020) 51 Cal. App. 5th 757, 814.)
“When confronted with a deficient privilege log that fails to provide the necessary information to rule on attorney-client and work product objections, a trial court may order the responding party to provide a further privilege log that includes the necessary information to rule on those objections. . .” (Catalina Island Yacht Club v. Superior Ct. (2015) 242 Cal. App. 4th 1116, 1120 (“Catalina”).) “A privilege log must identify with particularity each document the responding party claims is protected from disclosure by a privilege and provide sufficient factual information for the propounding party and court to evaluate whether the claim has merit. (§ 2031.240, subds. (b) & (c); Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 130.) The precise information required for an adequate privilege log will vary from case to case based on the privileges asserted and the underlying circumstances. In general, however, a privilege log typically should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document's date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted.” (Catalina, supra, 242 Cal. App. 4th at 1130.)
CST states there are approximately 200 documents that would in theory be responsive to the four subpoena categories at issue, were it not for the asserted privileges. (Craton Decl. ¶ 16.) Although undoubtably communication between an attorney and his clients and attorney work product would be privileged from discovery in this instance, there could, in theory, be communication between CST and Ms. Potier in a non-attorney/non-client aspect that might producible. However, without a sufficient privilege log, Defendants and the court are unable to make this determination.
The privilege log as produced does not identify which of the categories of documents would be responsive to which of the subpoena categories. It also does not comply with the requirements laid out in Catalina. The court hereby grants the Motion and orders CST to provide an updated privilege log in compliance with the standards laid out in Catalina. The court also notes that the definition of POTIER in the Subpoena is overbroad as phrased, including CST attorneys, which would require CST to produce inter-office communications with itself. The court will therefore limit the privilege log requirements to Plaintiff in this matter, Ms. Potier, and the Potier Law Group.
The court denies the request to order CST to produce responsive documents. As also noted in Catalina, the court cannot make such an order simply because the privilege log is lacking.
CST has 30-days from written notice of the court’s ruling to produce the updated privilege log.
Defendants are ordered to give notice of this ruling.