No Privilege Log Is Needed While Scope of Discovery Objections Are Pending

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.

The general rule is that a privilege log is due at the time discovery responses are filed. “Absent consent of the adverse party, or a Court order, a privilege log (or other communication of sufficient information for the parties to be able to determine whether the privilege applies) must accompany a written response to a Rule 34 document production request, and a failure to do so may constitute a forfeiture of any claims of privilege.”  Mezu v. Morgan State Univ., 269 F.R.D. 565, 577 (D. Md. 2010)(emphasis added).

Sometimes, a failure to comply constitutes a waiver. See Court Holds Privilege Was Waived by Failure to Timely Provide a Privilege Log (May 30, 2024).

Most  of the time, there is no prejudice and no waiver is found.  See When is Failure to Provide a Timely Privilege Log Excusable? (Jun. 24, 2024); Court Excused Party From Waiver by Failure to Provide Specific Objections (Aug. 7, 2022).

Plaintiff Troung alleged ERISA violations.  While there were also other discovery issues: “Plaintiff argues that the Court should compel responses regardless of privilege, because Defendants did not produce a timely privilege log….”  Id. at *2.

In response, “Defendants argues that no privilege log has yet been submitted, because Defendants stood on their relevance (and other) objections, and did not produce any documents; it therefore had no occasion to describe the documents it withheld from its production on privilege grounds.” [emphasis added].

The court agreed, writing:  “Defendants have the better argument on this point.”  It explained:

Rule 26 of the Federal Rules of Civil Procedure requires parties “withholding otherwise discoverable information” on the ground of privilege to produce information concerning the nature of the documents withheld on privilege grounds. Fed. R. Civ. P. 26(b)(5)(A) (emphasis added). The KPC Defendants maintained their position that the documents responsive to the challenged RFPs were not otherwise discoverable. Under those circumstances, they had no obligation to produce a privilege log.

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 court found that the KPC defendants had consistently objected to production.  Plaintiffs delayed in moving to compel.  “The District Judge warned the parties of the risk involved in failing to raise discovery issues early in the case….  The Court will not find a waiver in the failure to produce a privilege log under those circumstances.”