The New York Supreme Court’s Commercial Division has proposed sweeping changes to privilege logs that could bring simplicity and efficiency to what has long been viewed as a tedious, frustrating, and needlessly costly practice. The proposal, published for comment on April 3, 2014, would require litigants in the Commercial Division to “agree, where possible, to employ a categorical approach to privilege designations” rather than a “document-by-document log.” Under the current requirements, New York’s Civil Practice Law and Rules mandates that a party withholding documents on the basis of privilege produce a privilege log which: “(i) contains a separate entry for each document being withheld; (ii) provides ‘pedigree’ information for each such document; and (iii) sets forth the specific privileges or immunities that insulate the document from production.” As anyone involved in electronic discovery in complex litigation matters knows, this can translate to a large team of attorneys devoting hundreds of hours to recording detailed information about tens of thousands of documents, one document at a time. As recognized in the Commercial Division proposal, “the segregation, review, redaction, and document by-document logging of privileged communications is both time-consuming and costly,” and this cost is rarely justified by the “potential benefits a privilege challenge may have on the outcome of the litigation.”
To address the cost vs. benefit disparity, the proposed change would encourage litigants “to consider . . . employing categorical designations for privileged documents, as opposed to document-by-document entries.” The proposal would add discussion of categorical privilege logs to the lengthy list of topics required for a pre-discovery meet-and-confer under Rule 8 of the Rules of the Commercial Division of the Supreme Court. While technically optional, the rule would effectively be self-enforcing, as a party unreasonably refusing to accept a categorical privilege log could be required to pay attorney’s fees to the producing party to offset the cost of logging individual documents.
As to the details of what a categorical privilege log will contain, that information remains somewhat unclear. The proposed rule leaves the designation of categories to the parties, but notes that for each category, the producing party must make a written certification “setting forth with specificity those facts supporting the privileged or protected status” as well as describing “the steps taken to identify the documents so categorized, including . . . whether each document was reviewed or some form of sampling was employed . . . .” Notably, that certification must be signed by a responsible supervising attorney actively involved in the review and not, as the Commercial Division phrases it, “a newly minted attorney or paralegal.”
Whether the proposed adoption of categorical privilege logs will be beneficial remains to be seen. In light of the high costs and inefficiency frequently associated with traditional privilege logs, however, it is no surprise that changes have been proposed. For anyone interested in providing comments on the proposed rule, submissions can be made by e-mail to firstname.lastname@example.org. The comment period ends on June 2, 2014.