New Law to Require ‘proof’ of privilege

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Though it may come as some surprise to many, a party responding to a request for production in California currently is under no obligation to provide a privilege log in connection with its response — either initially or at some later date. See Best Products, Inc. v. Super. Ct., 119 Cal. App. 4th 1181, 1188 (2004) (finding there is no requirement that a privilege log be served at the time responses are served). Indeed, the term “privilege log” is nowhere to be found in the California Code of Civil Procedure — or the Federal Rules of Civil Procedure for that matter — and a privilege log only may be required after a motion to compel. Best, at 1189 (finding court may only order a privilege log after a motion to compel a more specific identification of documents withheld on basis of privilege).