Effective September 2, 2014, the New York Supreme Court implemented a major change to the Commercial Division rules governing privilege logs submitted during the course of litigation. (See New York Supreme Court, Administrative Order of the Chief Administrative Judge of the Courts: Rule 11-b (July 8, 2014)). Previously litigants were required to produce a traditional “document-by-document” privilege log that included a separate entry for each document being withheld, pedigree information for that document, and the specific privileges insulating the document from production. Under Rule 11-b of the Rules of Practice for the Commercial Division, Litigants can instead produce “categorical” privilege logs. Categorical privilege logs designate privileged documents by category, rather than in an item-by-item list.
In its proposal submitted for comment before the rule was adopted, the New York Supreme Court recommended a model similar to the one formulated by U.S. Magistrate Judge John Facciola and former Sedona Conference chair Jonathan Redgrave. (See State of New York Unified Court System, Proposed Adoption of a New Rule of the Commercial Division (22 NYCRR § 202.70(g)), Relating to the Privilege Log Practice in the Commercial Division of the New York Supreme Court (April 3, 2014).) Under the framework proposed by Facciola and Redgrave, parties are directed to structure logs by identifying categories “into which the withheld documents can be arranged in order to understand (a) the basis for withholding the document, and (b) the general subject matter of the documents in the category.” (See Hon. John M. Facciola & Jonathan M. Redgrave, Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework, 4 Fed. Ct. 19 at 46 (2009).) Judge Facciola and Mr. Redgrave recommended both that litigants select their own privilege categories and that they agree upon certain categories of documents that will be eliminated from privilege review because they are either clearly privileged or clearly not privileged. The New York Supreme Court did not explicitly adopt the Facciola-Redgrave framework in Rule 11-b. Thus, the details of what a categorical privilege log should look like under the new rule will remain murky until parties receive further guidance from Commercial Division Justices interpreting the new rule.
Rule 11-b does substantially alter the responsibilities of litigants tasked with creating privilege logs. For each category of documents withheld, the producing party must provide a certification that sets forth “with specificity those facts supporting the privileged or protected status of the information included within the category,” and details the steps taken to identify the categorized documents, including whether each document was reviewed or whether some type of sampling was performed. The certification must also be signed by a “Responsible Attorney” who is “actively involved in establishing and monitoring the procedures used to collect and review documents to determine that reasonable, good faith efforts are undertaken to ensure that responsive, non-privileged documents are timely produced.” If an opposing party insists upon receiving a document-by-document privilege log, the producing litigant may apply for the allocation of costs, including attorneys’ fees, incurred with respect to preparing the more detailed log.
Rule 11-b also offers the benefit of cost savings by simplifying the historically painstaking task of describing emails in a privilege log. Whereas prior practice required litigants to treat each email as a unique document for purposes of creating a privilege log, Rule 11-b treats “each uninterrupted email as a single entry.” This rule reduces the volume of entries in a privilege log, and is particularly useful for litigants dealing with a large quantity of electronic documents.
If implemented appropriately, Rule 11-b offers potential improvements to the laborious and costly process of generating and assembling privilege logs, and the cost-shifting provision of the Rule indicates that the New York Supreme Court is committed to promoting efficiency in this area of litigation. Ultimately, seeing Rule 11-b in practice will reveal the scope of the cost savings and efficiency that the rule was designed to provide, and demonstrate whether there is a need for any additional systematic improvements in the future.