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Northern District of California - Privilege Log Not Too Burdensome If No Meet & Confer

On Wednesday, Judge Donna Ryu issued a decision in Porter v. City & County of San Francisco, No. 16-cv-03771-CW (DMR), 2018 U.S. Dist. LEXIS 151349 (N.D. Cal. Sept. 5, 2018) granting the Plaintiff's motion for spoliation sanctions and the Plaintiff's motion for production of documents based on the failure to submit a privilege log. This case concerns a wrong death action brought against a hospital in San Francisco. A hospital staff member lost track of a psychiatric patient while she was being brought to a different building for treatment. A nurse named Mark Okupnik reported the missing patient to the police. The defendants failed to produce an audio recording of a call made by a nurse to the San Francisco Sheriff's Department about the patient's disappearance. They stated that it had been erased pursuant to their retention policy.

The Defendants argued that they should not be sanctioned because they had not intentionally erased the call, and because no prejudice resulted to Porter. While FRCP 37(e) does not define intent, Judge Ryu acknowledged other decisions which showed that the intent requirement is satisfied when, "a party purposefully destroyed evidence to avoid its litigation obligations." Id. at *8.

The Court ruled that spoliation had occurred for the following reason:

1. The recording was erased in 2017, after the claim was filed in 2015 which triggered a duty to preserve.

2. The Defendants did not take reasonable steps to preserve the recording.

3. The recording could not be restored or replaced.

Judge Ryu's opinion states that, "The Okupnik call is the only contemporaneous record of what information was reported to the SFSD about Nuriddin's disappearance,and could contain facts not otherwise known about her disappearance and CCSF's response. Additionally, the call is relevant to a jury's assessment of Okupnik's credibility. Okupnik was acting within the scope of his employment with CCSF when he made the call to SFSD about Nuriddin's disappearance. A jury could find Okupnik more or less credible based on what he said and how he sounded during the call." Id. at *11.

The Court declined to issue an adverse inference instruction because the evidence was not deleted intentionally. It did however order that the jury be read a statement addressing the spoliation of evidence and noting that while the defendants had a duty to preserve the call they failed to do so.

The defendants based their failure to produce a privilege log on the fact that the requests for production were overboard and would make the preparation of the log burdensome.

The Court noted case law stating that privilege can be waived if a log is not produced. The Ninth Circuit has rejected a per se waiver rule in favor of a case by case determination weighing the extent to which the basis for withholding privilege can be determined; the timeliness of the objection; the size of the document production; and the difficulty of responding to discovery. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1148-49 (9th Cir. 2005). Judge Ryu ruled that each factor weighs in favor of waiver. The defendant only made boilerplate objections . The Court rejected the contention that the RFPs were overboard and made discovery burdensome, because the Defendants failed to meet and confer to narrow their scope, and because they should have responded to those RFPs which were valid and submitted privilege logs for just those sections.

The Court noted the Defendant's prior failure to respond to request for a privilege log, and ordered production with the exclusion of communications with counsel that took place after the complaint was filed.

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