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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.”
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A colleague and I recently published an article in BNA’s Digital Discovery & e-Evidence® discussing the recent sanctions against Quinn Emanuel Urquhart & Sullivan LLP, in Apple, Inc. v. Samsung Electronics Co. Ltd, et. al., 5:11-cv-01846 (N.D. Cal. Jan. 29, 2014). Our article, “Protecting Confidential Information: Lessons from the Apple v. Samsung Firestorm,” tells a