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1

 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

MICHAEL D. BURCH and THE

BANKRUPTCY ESTATE OF MICHAEL

D. BURCH,

NO. CIV. S-04-0038 WBS GGH

Plaintiff,

v. MEMORANDUM AND ORDER

RE: PRIVILEGED MATERIALS

SUBMITTED UNDER SEAL FOR

IN CAMERA INSPECTION PURSUANT

TO COURT ORDER

REGENTS OF THE UNIVERSITY OF

CALIFORNIA, LARRY VANDERHOEF,

GREG WARZECKA, PAM GILLFISHER, ROBERT FRANKS, and

LAWRENCE SWANSON,

Defendants.

----oo0oo---- 

On July 22, 2005, the court issued an order directing

defendants to produce certain documents. The court modified the

order on July 29, 2005, to allow defendants to submit under seal

all allegedly privileged documents to the court for in camera

review. Defendants submitted the allegedly privileged documents

on August 10, 2005 along with briefing to support defendants’

assertions of privilege. Plaintiffs responded to defendants’

briefing on August 17, 2005 and moved the court to reject all

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defendants’ claims of privilege and to compel defendants to

produce all withheld and other responsive documents. Defendants

replied to plaintiffs’ response. The court now addresses

defendants’ privilege claims. 

Defendants have refused to produce to plaintiffs

certain documents that defendants claim are protected from

disclosure by virtue of the attorney-client privilege, work

product doctrine, deliberative process privilege, and/or a

privacy-based privilege. Plaintiffs correctly point out that

defendants waived any applicable evidentiary privileges by

failing to timely provide plaintiffs with privilege logs and

supporting declarations.

The party asserting evidentiary privileges has the

burden of proving that the privileges apply to the documents or

communications the party seeks to withhold. In re: Grand Jury

Investigation v. The Corp., 974 F.2d 1068, 1070 (9th Cir.

1992)(dealing with attorney-client privilege); Verizon Cal., Inc.

v. Ronald A. Katz Tech. Licensing, L.P., 266 F.Supp.2d 1144, 1147

(C.D. Cal. 2003)(dealing with work product privilege); N.

Pacifica, LLC v. City of Pacifica, 274 F.Supp.2d 1118, 1122 (N.D.

Cal. 2003)(dealing with deliberative process privilege). To meet

this burden, the party asserting a privilege must produce more

than just “boilerplate objections or blanket refusals” in

response to a request for production of documents. Burlington N.

v. United States Dist. Court For the Dist. of Mont., 408 F.3d

1142, 1149 (9th Cir. 2005). The burden may be met by the

submission of a detailed privilege log, but only if such log is

submitted in a timely manner. Id. at 1147. The log must also

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1 Claims of Privilege or Protection of Trial Preparation

Materials. When a party withholds information

otherwise discoverable under these rules by claiming

that it is privileged . . . , the party shall make the

claim expressly and shall describe the nature of the

documents, communications, or things not produced or

disclosed in a manner that , without revealing

information itself privileged . . . will be enable

other parties to assess the applicability of the

privilege. . . .

Fed. R. Civ. P. 26(b)(5). 

3

contain supporting affidavits or other competent evidence to

prove the applicability of asserted privileges. In re Heritage

Bond Litig., 2004 WL 19700058 *2 (C.D. Cal. 2004). 

In Burlington, a case decided just this year, the Ninth

Circuit explained how district courts are to determine whether a

privilege log was submitted in a timely manner. 408 F.3d at 1149. 

In deciding the issue, the Burlington Court first noted that

Federal Rule of Civil Procedure 34 sets a 30-day deadline for

responding to a discovery request in writing. The court

concluded that Rule 34 thus “imposes a bright-line rule” defining

timeliness, but found that it contains no explicit prohibition

against boilerplate objections or assertions of privilege. Id.

at 1147. The court went on to note, however, that Federal Rule

of Civil Procedure 26(b)(5)1 does require that a proper assertion

of privilege be more specific than a generalized, boilerplate

objection. The court acknowledged that Rule 26(b)(5) does not

“specifically correlate this [specificity] requirement with Rule

34's bright-line rule for timeliness, nor does it explicitly

articulate a waiver rule.” Id. However, in examining the notes

accompanying the relevant paragraph to Rule 26(b)(5), the court

found that waiver of privilege would be appropriate where Rule

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26(b)(5)’s requirements were not met. Id. 

The Ninth Circuit then acknowledged that no Circuit has

explicitly weighed in on the precise relationship between the

requirements of Rule 26(b)(5) and Rule 34's deadline, and noted

that a survey of district court cases revealed “a mixed bag,”

ranging from a permissive approach where boilerplate objections

were accepted at any time to a strict approach finding waiver

where a party failed to meet a more strict construction of Rule

26(b)(5) within Rule 34's 30-day time limit. Id. at 1148. “In

order to honor the spirit of the Rules,” the court then concluded

that it would “chart a middle road through the wide spectrum of

caselaw regarding discovery by reading Rules 26(b)(5) and 34

together. . . .” Id. at 1149. 

The Ninth Circuit held that boilerplate objections or

blanket refusals in response to a Rule 34 request for production

of documents are insufficient to assert a privilege. However, it

rejected a per se waiver rule that would deem a privilege waived

if a privilege log intended to meet Rule 26(b)(5)’s requirements

were not produced within Rule 34's 30-day time limit. Id. The

court then held that district courts are to use the 30-day

deadline for responding to document requests contained in Federal

Rule of Civil Procedure 34 as a “default guideline” to make a

“case-by-case determination” of timeliness for meeting Rule

26(b)(5)’s requirements by considering several factors. Id. The

factors are: (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

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about the withheld documents; (3) the magnitude of the document

production; and (4) other particular circumstances of the

litigation that make responding to discovery unusually simple or

unusually difficult. Id. 

The Burlington factors are generally to be applied “in

the context of a holistic reasonableness analysis,” aimed at

preventing needless waste of time and manipulation of the

discovery process. Id. Though the Ninth Circuit stopped short

of providing a bright-line rule, the Burlington Court did

specifically note that “in the absence of mitigating

considerations,” a district court would be justified in finding

that a party had waived its asserted privileges by submitting a

privilege log five months after the Rule 34 deadline. Id. 

The instant case seems to be just the sort of case the

Ninth Circuit had in mind with that observation. Plaintiffs

served their first request for production of documents on May 13,

2004. Defendants responded on June 21, 2004, in part by making

numerous assertions of privilege without submitting a

contemporaneous privilege log. Defendants correctly point out

that plaintiffs have failed to cite any source indicating that

such a log “must be tendered contemporaneously with the privilege

based objection.” (Defs.’ Reply Brief Re: Privileged Materials

Submitted Under Seal at 3). However, defendants readily

acknowledge that they did not produce a privilege log until

November 10, 2004, “approximately six months after [p]laintiffs

served their first set of document requests, and approximately

two months after plaintiffs served their second set of document

requests.” (Id.)(emphasis added). Under Burlington, defendants’

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delay in adequately responding to plaintiff’s first request for

document production is thus presumptively untimely absent

mitigating considerations. 

Nor does it help defendants’ case in this regard for

them to point out that they submitted a declaration of campus

counsel Steve Drown in support of their claims for attorneyclient privilege and work product immunity. (Id.). Defendants

fail to mention that the declaration was not signed until August

9, 2005 and not submitted until August 10, 2005, at least a year

after the Rule 34 deadline had passed for either set of

plaintiffs’ document requests. (Id. Ex. A (Drown Decl.)). This

late submission only compounds defendants’ delay. The same must

be said for the declaration of Larry N. Vanderhoef, chancellor of

the University of California campus at Davis. That declaration,

which attempts to invoke the deliberative process privilege and

to provide a factual context for invoking the privilege, was also

not signed until August 9, 2005, and not submitted to the court

until August 10, 2005. (Id. Ex. B (Vanderhoef Decl.)). The

court further observes that defendants have not referred it to a

single declaration to establish their other privacy-based

privileges. 

The fact that defendants felt compelled to submit the

declarations they did submit to supplement their November 10,

2004 privilege log is also an implicit admission that, without

them, the privilege log was insufficient to establish defendants’

claimed privilege. See In re Heritage Bond Litig., 2004 WL

19700058 at *2(party asserting privilege must support application

of privilege with competent evidence). This means that the

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privileges asserted in response to both plaintiffs’ requests for

production of documents were not adequately supported until

August 10, 2005, well beyond the point under Burlington where

defendants were required to present mitigating considerations for

their delay. 

Further, defendants have failed to present any

mitigating considerations for their delay, apparently relying on

plaintiffs’ failure to provide relevant citation or, as it turns

out, to point them to Burlington. This is unacceptable. The

court will not neglect to apply the appropriate legal standard

simply because the parties have overlooked it. See United States

Nat’l Bank v. Indep. Ins. Agents of Am., 508 U.S. 439, 446

(1993)(“[W]hen an issue or claim is properly before the court,

the court is not limited to the particular legal theories

advanced by the parties, but rather retains the independent power

to identify and apply the proper construction of governing

law.”)(citation omitted). Defendants delayed demonstrating the

applicability of their asserted evidentiary privileges for too

long. Nor have they presented any mitigating circumstances for

their delay. Therefore, the court finds that defendants have

waived their privileges. See Burlington, 408 F.3d at 1149.

Defendants appear to be particularly concerned about

documents allegedly protected by the deliberative process

privilege. Defendants represent that the documents in question

are unrelated to their decision to terminate plaintiff Michael

Burch. (See Defs.’ Reply Re: Privileged Materials Submitted

Under Seal at 8). Therefore, defendants should not be alarmed

that plaintiffs will be able to review these documents in

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preparing their case. Defendants’ primary concern would thus

appear to be that the documents at issue contain private

correspondence among University personnel regarding University

policy - much of it regarding the University’s public response to

allegations of discrimination - that defendants do not wish to

have publicly disclosed. If this is truly defendants’ concern,

defendants may seek a protective order for any documents for

which defendants asserted a deliberative process privilege. 

IT IS THEREFORE ORDERED that defendants produce all

documents requested in plaintiffs’ May 31, 2005 motion to compel

for which defendants’ have asserted attorney-client, work

product, deliberative process, or privacy-based privileges by

September 12, 2005. 

DATED: August 30, 2005

 

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