Case Name: Professional Healthcare at Home, LLC v. Health Living at Home, Inc., et al.
Case No.: 2014-1-CV-272357
The following motions came on for hearing: (1) defendant Scott Lobdell?s (?Lobdell?) motion to compel further responses to Lobdell?s request for production of documents (?RPD?), sets one and two; (2) defendant Healthy Living at Home, Inc.?s (?HLH?) motion to compel further responses to HLH?s RPD, sets one and two; (3) Lobdell and defendant Healthy Living at Home-East Bay, LLC?s (?HLH-East Bay?) motion to compel further responses to HLH-East Bay and Lobdell?s special interrogatories (?SI?), sets one; and (4) HLH-East Bay?s motion to compel further responses to HLH-East Bay?s RPD, sets one and two.
Lobdell?s motion to compel further responses to RPD, Sets One and Two, is GRANTED.? PHH?s obligation to provide responsive, non-privileged documents to Lobdell is not excused by the absence of a protective order and thus to the extent that PHH is withholding responsive items due to such an order not being in place, it is compelled to produce those documents.? Additionally, the privilege log provided by PHH to the defendants in April 2016 lacks the information necessary to evaluate the validity of its privilege objections.? The privilege log is comprised of four paragraphs which describe broad categories of documents and communications between various attorneys and PHH but does not identify specific documents.? (Stambelos Decl., Exhibit L.)? With regard to that issue specifically, citing to federal case authority, particularly In re Imperial Corp. of America (S.D. Cal. 1997) 174 F.R.D. 475, 478, PHH argues that where a privilege log is produced, it need not take the form of a document-by-document catalog in order to be acceptable.? Even if the Court accepts this authority, which was concerned with the Federal Rules of Civil Procedure and not California?s Discovery Act, PHH?s privilege log does not even meet the standard articulated therein.? In In re Imperial Corp. of America, the court advised that the document-by-document log format ?has been, undoubtedly will, and should remain, the traditional format? but also recognized that other formats could suffice depending on the circumstances, including where producing a document-by-document log would be ?unduly burdensome and inappropriate.?? (In re Imperial Corp. of America, 174 F.R.D. at 479.)? In such a circumstance, the responding party should provide a privilege log that contains the following information:
- An aggregate listing of the number of withheld documents;
- An identification of the time periods encompassed by the withheld documents;
- An affidavit containing the representation(s) that:
- the withheld documents were:
- either prepared to assist in anticipated pending litigation, or
- contain information reflecting communications between
- counsels or counsels? representatives, and
- plaintiffs or plaintiffs? representatives, for the purposes of facilitating the rendition of legal services to plaintiffs; and
- Intended to be confidential communications.
(Id.)
PHH?s privilege log simply lists the four categories of documents but contains no aggregate listing of the number withheld items, the time periods encompassed by the withheld documents, or an affidavit containing representations regarding the purposes for which the withheld documents were prepared.? There is also no indication that producing a document-by-document log would be unduly burdensome.
Accordingly, to the extent that documents which are responsive to the aforementioned documents have been withheld on the basis of privilege or attorney work product, PHH must provide a privilege log with more specificity, including the identities of the authors and recipients of each specific document, its date, and a brief description of its contents.? If preparing a document-by-document log is unduly burdensome, PHH must provide a log with the information set forth above.? As it stands now, there is simply not enough information for Lobdell or the Court to determine whether any of the withheld documents are actually privileged.
PHH shall produce these responsive items, and an adequate privilege log, if necessary, within 20 calendar days of this order.
Lobdell?s related request for sanctions is GRANTED IN PART.? Within 20 calendar days of this order, counsel for PHH shall pay $2,540 to opposing counsel.
PHH?s related request for sanctions is DENIED.
HLH?s motion to compel further responses to RPD, Sets One and Two, is GRANTED.? The Court agrees with PHH that it adequately preserved and asserted objections based on attorney client privilege and attorney work product protection as to RPD, Set Two, Nos. 64 and 65.? (See Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1517.)? However, to the extent that PHH has withheld items that are responsive to these requests and others which are the subject of this motion on the ground of privilege, it shall provide a privilege log which contains sufficient detail (see above) to enable HLH and the Court to evaluate the veracity of the privileges claimed.? Additionally, as set forth above, the absence of a protective order does not excuse PHH?s obligation to produce responsive documents.? PHH shall provide these responsive items (and a privilege log, if necessary) within 20 calendar days of this order.
HLH?s related request for sanctions is GRANTED IN PART.? Within 20 calendar days of this order, counsel for PHH shall pay $1,270 to opposing counsel.
PHH?s related request for sanctions is DENIED.
HLH-East Bay and Lobdell?s motion for compel further responses to SI, Sets One, is GRANTED.? PHH?s objections to these requests are without merit and the absence of a protective order does not excuse its obligation to identify those documents which relate to the damages it claims to have suffered.? PHH shall provide further responses, without objection, within 20 calendar days of this order.
HLH-East Bay and Lobdell?s related request for sanctions is GRANTED IN PART.? Within 20 calendar days of this order, counsel for PHH shall pay $755 to opposing counsel.
PHH?s related request for sanctions is DENIED.
HLH-East Bay?s motion to compel further responses to RPD, Sets One and Two, is GRANTED.? PHH shall provide all responsive, non-privileged items within 20 calendar days of this order.? To the extent that PHH has withheld items that are responsive to the requests that are the subject of this motion on the ground of privilege, it shall also provide a privilege log which contains sufficient detail to enable HLH-East Bay and the Court to evaluate the veracity of the privileges claimed.
HLH-East Bay?s related request for sanctions is GRANTED IN PART.? Within 20 calendar days of this order, counsel for PHH shall pay $1,270 to opposing counsel.
PHH?s related request for sanctions is DENIED.