Failure to Assert Privilege in Initial Responses to Requests for Production ≠ Per Se Waiver

From Coalition for a Sustainable Delta v. Koch, 2009 U.S. Dist. LEXIS 100728 (E.D. Cal. Oct. 15, 2009):

Plaintiffs complain (1) that Defendants failure to assert the deliberative process privilege in their initial responses to certain RFPs [Rule 34 requests for production] constitutes per se waiver, and (2) that Defendants' subsequent production of a privilege log seven months after service of Plaintiffs' first RFP was untimely, amounting to waiver.

Plaintiffs' per se waiver argument is without merit. A party's failure to assert a particular privilege in an initial response is not a per se waiver. "Neither Rule 26(b)(5) nor Rule 34(b) mandate waiver upon a party's failure to object." First Sav. Bank, F.S.B. v. First Bank System, Inc., 902 F. Supp. 1356, 1360 (D. Kan. 1995). The Ninth Circuit rejected a per se rule that "failure to produce a privilege log in a timely manner triggers a waiver of privilege," noting that Rule 26's requirement for proper assertion of a privilege does not correlate with Rule 34's 30-day deadline for serving written responses to discovery requests, "nor does it explicitly articulate a waiver rule." Burlington Northern & Santa Fe Railyard Co. v. United States, 408 F.3d 1142, 1147 (9th Cir. 2005). Rather, a court should use Rule 34's 30-day time period as a "default guideline," for a "case-by-case determination" whether the assertion of a privilege is timely and sufficient. Id. at 1149. Burlington instructs courts to take into account the following factors:

1) The degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged;

2) The timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient);

3) The magnitude of the document production; and

4) Other particular circumstances of the litigation that make responding to discovery unusually easy or unusually hard. ***

Burlington concerned two issues of first impression: (i) whether "a general, boilerplate assertion of an evidentiary privilege in response to a discovery request" is effective to properly assert the privilege; and (ii) whether "the effect of untimeliness in properly asserting the privilege is to waive or otherwise abandon the privilege." ... With respect to the first issue, the Court found "that a proper assertion of privilege must be more specific than a generalized, boiler-plate objection." ... On the second issue, the Court found that the failure to produce a timely privilege log, pursuant to "Rule 34's 30-day time limit," does not result in a per se waiver of the privilege....

Plaintiffs read Burlington to hold that where a party fails to assert a particular privilege in an initial written response in any manner, boilerplate or otherwise, it amounts to a per se waiver of that privilege, whether or not the privilege was invoked in a later-produced privilege log. This reading of Burlington is inconsistent with the Ninth Circuit's refusal to apply a per se waiver to a late-filed privilege log, even after finding the boilerplate assertions of privilege in the initial, written response to be insufficient. If asserting a privilege in a boilerplate manner is improper, then the party withholding documents in Burlington failed to properly assert particular privileges in their initial written responses. Nevertheless, the Burlington court forgave this initial failure and permitted the privilege log to assert the privileges for the first time.

This case is sufficiently analogous. Even though the initial written response to some of the earlier RFPs did not assert the deliberative process privilege, once Defendant had an opportunity to thoroughly examine the responsive documents, it determined that assertion of the privilege was appropriate and did so. Rather than applying a per se waiver rule, Burlington demands that Defendant's actions be examined in light of the four factor test.

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