The opinion of the court was delivered by: Bernard G. Skomal United States Magistrate Judge
ORDER REGARDING DISCOVERY DISPUTE
On October 8, 2010, Plaintiffs The Jumping Turtle Bar and Grill, Matthew Hall, and Laura Mouradian and Defendants City of San Marcos and Susie Vasquez filed a joint motion for determination of discovery dispute regarding waiver of the attorney-client privilege by Defendant City of San Marcos (the "City"). (Doc. No. 41.) The Court, having considered the parties' joint motion, finds that Defendants did not waive the attorney-client privilege by producing the privilege log more than 30 days after service of the request for production. As such, the Court denies Plaintiffs' request to compel production of the documents identified in the privilege log on the basis of waiver.
Plaintiffs brought suit against the City and Defendants Susie Vasquez and Glenn Giannantonio, asserting causes of action for deprivation of civil rights and related claims concerning the operation and permitting of The Jumping Turtle Bar and Grill. On June 22, 2010, Plaintiffs served Requests for Documents on the City pursuant to Fed. R. Civ. Pro. 34. (See Doc. No. 41-1, Ex. 1.) On July 22, 2010, the City served its initial responses to Plaintiffs' requests. (Id.) In its initial responses, the City did not assert the attorney-client privilege or the work product doctrine. (Doc. No. 41-1, Ex. 1.)
On September 3, 2010, Plaintiffs' counsel sent a meet and confer letter regarding the production of documents, and noting that no attorney-client or work product privileges had been asserted and that they were therefore waived. (Doc. No. 41 at 1.) Counsel for Plaintiffs and counsel for the City met and conferred in person on September 10, 2010. (Id.) The City produced at the September 10 meet and confer a privilege log listing over 150 documents withheld on the basis of the attorney-client privilege. (Id.) On October 7, 2010, Plaintiffs received, via email, amended responses from the City asserting that the City was withholding documents responsive to the request for production based on the attorney-client privilege and attorney work product doctrine.*fn1 (Id. at 2.)
Plaintiffs argue that the City has waived the attorney-client privilege by failing to properly raise the attorney-client privilege and work product doctrine in its written responses to Plaintiffs' requests for documents. (Id. at 3.) The parties filed a joint motion for determination of discovery dispute in order for the Court to resolve this issue.
Plaintiffs argue the City waived the attorney-client privilege by (1) failing to assert it in its initial responses and (2) by producing a privilege log more than 30 days after the service of the requests for production. Under Fed. R. Civ. Pro. 34(b)(2), "the party to whom the request is directed must respond in writing within 30 days after being served." "For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons." Fed. R. Civ. Pro. 34(b)(2)(B). Rule 26(b)(5) provides that, when claiming a privilege, a party must:
(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
Fed. R. Civ. Pro. 26(b)(5).
In analyzing how Rule 34 and Rule 26(b)(5) interact, the Ninth Circuit in Burlington Northern & Santa Fe Ry. Co. v. United States, 408 F.3d 1142 (9thCir. 2005) held that, "boilerplate objections or blanket refusals inserted into a response to a Rule 34 request for production of documents are insufficient to assert a privilege." Id. at 1149. However, the Burlington court rejected a "per se waiver rule that deems a privilege waived if a privilege log is not produced within Rule 34's 30-day time limit." Id. at 1149. Instead, the Ninth Circuit instructed district courts, using the 30-day period of Rule 34 as a default guideline, to "make a case-by-case determination" using 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 (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient);
(2) the timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a ...