Korea Data Systems Co. v. Superior Court

[1515]

Opinion

RYLAARSDAM, J.

In response to a motion to compel, the trial court ordered petitioner to produce documents allegedly subject to the attorney-client privilege. The order was based on the court’s finding that failure to file a timely privilege log, waived the privilege. Petitioners filed a petition for writ of mandate seeking to reverse the order. We issued an alternative writ and now grant the petition, holding that a forced waiver of the attorney-client privilege is not an authorized sanction for failure to file a privilege log.

Facts

Petitioners, Korea Data Systems Company Ltd. and others (collectively KDS), sued Aamazing Technologies Corporation and others (collectively, Aamazing) for breach of contract. Aamazing served KDS with a request for production of documents. KDS served a timely but nonspecific response, which included “. . . general objections based upon the attomey/client privilege and the work product doctrine.” Subsequently, KDS filed a supplemental response consisting of specific responses to each request; these responses again included objections based on the attorney-client privilege. Still later, KDS served a second supplemental response to the request for production, again consisting of general objections and more detailed objections to each response as well as an agreement to produce some of the documents.

Eventually, Aamazing filed a motion pursuant to Code of Civil Procedure section 2031, subdivision

(l)

(all further statutory references are to the Code of Civil Procedure unless otherwise indicated). The motion sought further responses in compliance with the specificity requirements of section 2031, subdivision (f) and sought to compel KDS to serve a privilege log.

KDS opposed the motion but served a privilege log shortly after being served with the motion. The court appointed a discovery referee pursuant to section 639, subdivision (e). The referee issued a report recommending Aamazing’s motion be granted and held: “[Objections to all the document [sic] demand[ed], including those objections on attorney-client and work product grounds set forth in [petitioners’] untimely ‘privilege log’ provided only after this motion was filed, are overruled. . . .”