Song v. Drenberg

Background

Aaron Drenberg served James K. Song with requests for production of documents. After earlier discovery disputes, the court ordered Song to provide compliant written responses and a privilege log identifying documents withheld under attorney-client privilege or the attorney work-product doctrine.

Song served a privilege log on July 8, 2019. It contained 15 entries and withheld documents based on attorney-client privilege and work-product protection. Many entries grouped documents or communications covering periods ranging from four months to more than two years. Other entries referred generally to the subject matter of earlier entries. The log did not identify the specific document requests to which each item responded.

The opinion also notes that, in a separate order, the court had already concluded that Song did not adequately assert or preserve attorney-client privilege or work-product protection in his written responses to Drenberg’s first and second sets of document requests. That separate order also addressed Song’s work-product claims concerning Requests Nos. 100 and 101.

Legal standard

Attorney-client privilege protects confidential communications made to obtain legal advice, including an attorney’s advice in response. The party claiming the privilege must establish that it applies. Under Federal Rule of Civil Procedure 26(b)(5), that party must describe withheld documents sufficiently to allow the opposing party and the court to evaluate the claim without revealing the protected information itself.

The work-product doctrine provides qualified protection for materials prepared by or for a party or its representative in anticipation of litigation. It protects legal strategies and attorneys’ mental impressions, but generally does not protect facts. The party asserting work-product protection bears the burden of showing that the documents qualify and must provide enough information to evaluate the claim.

Court’s analysis

The court held that Song’s privilege log did not adequately identify the withheld material or explain the basis for each claimed protection. Entries 1 through 7 and 15 referred to multiple documents or communications over lengthy periods, while entries 8 through 14 were listed as single communications referring to “the above” subject matter. The court found that the entries did not describe specific communications or categories of communications with enough detail to determine whether Song had established an initial showing of privilege or work-product protection, or to determine how many documents had been withheld.

The court rejected Song’s reliance on the possibility of describing privileged documents by category. The court explained that categories may be appropriate when documents are voluminous or when preparing a document-by-document log would impose an unreasonable burden, but Song had not shown that either circumstance applied. The court also found that Song had not established that identifying the relevant information would create the unusual risk of revealing privileged information.

The court concluded that the privilege log did not satisfy Rule 26(b)(5) for any entry. However, the court separately found that Song’s briefing in the parties’ discovery-dispute letter provided enough support for work-product protection as to entries 8 through 15. Song had explained that his counsel communicated with potential witnesses Daniel Buckles and Angela Moran to explore their knowledge of the case, and communicated with Kathy Harris in her role as Buckles’s assistant to schedule a meeting. Drenberg had not shown a substantial need for those communications or established waiver. The court clarified that work-product protection did not prevent Drenberg from seeking relevant facts directly from witnesses.

Disposition

The court concluded that Song had not substantiated his attorney-client privilege or work-product claims for entries 1 through 7. It ordered Song, no later than October 21, 2019, to serve an amended privilege log identifying for each withheld document or communication the attorney and client involved, the document’s nature, the people or entities who sent or received it or learned its substance, its date, and the document request to which it responded.

Song could not add documents or communications outside entries 1 through 7 without the court’s permission. The parties were required to confer about each disputed item before bringing any further privilege or work-product dispute to the court.