Where Requests for Discovery were Overly Broad, No Privilege Log was Required

In Williams v. Zaragoza, 2024 WL 4443790 (E.D. Cal. Oct. 8, 2024), a pro se former prisoner sued alleging excessive force and retaliation.

The court addressed plaintiff’s motion to compel documents, holding that his requests sought irrelevant data and: “The scope of subparts 1 and 3 will therefore be appropriately narrowed to allegations of excessive force and retaliation against inmates.”  It then specified what must be produced.

Because the discovery requests were so “overly broad,” the court held that no privilege log was required on the overbroad requests.  It wrote:

Although assertion of the official information privilege[1] requires submission of a privilege log, Fed. R. Civ. P. 26(b)(5)(A)(ii), and a declaration addressing several factors, including that a designated official has reviewed the material in question, Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995), because plaintiff’s requests were overly broad, it would be unreasonable to require defendants to have produced a privilege log and an official information declaration addressing all of the responsive documents in their initial response to the request.  [emphasis added].

To the same effect, in Troung v. KPC Healthcare, Inc., 2024 WL 3496865 (C.D. Cal. July 17, 2024), the court held that no privilege log was required until scope of discovery objections were resolved.  See No Privilege Log Is Needed While Scope of Discovery Objections Are Pending (Aug. 3, 2024).  The Troung court cited several decisions, one of which stated: “When, as here, the responding party objects to the scope of discovery, a court may rule on the objections first before requiring a privilege log. If the court finds that the document is within the scope of the objection, and the court overrules the objection, it must then give the party an opportunity to list the document on a privilege log pursuant to Rule 26(b)(5).”  Id. at *4.

The Wiliams court reached the same result.  After narrowing the scope of discovery, it permitted defendants to later submit a privilege log limited to the narrowed scope.

This distinguishes the principle that Court Holds Privilege Was Waived by Failure to Timely Provide a Privilege Log (May 30, 2024); cf. When is Failure to Provide a Timely Privilege Log Excusable? (Jun. 24, 2024)(good cause exception).

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[1] See The Federal “Official Information” Privilege (Jul. 8, 2024).