Rule 11-b, which amends Section 3122 of the New York Civil Practice Law and Rules to allow parties in commercial litigation to log privileged documents in categories instead of as separate entries.
Section 3122 requires any litigant who withholds responsive documents to provide the requesting party with a privilege log that details each withheld document as a separate entry that includes the legal justification for withholding, what type of document is being withheld, the general subject matter of the document and the document’s date. In complex commercial litigation with a large number of privileged documents, this process is often time-consuming and expensive for litigants.
Rule 11-b now allows for privilege logs to be created using categories rather than separate entries. The new rule requires that litigants confer at the beginning of the case to discuss the privilege review scope, how much information is required to be recorded in the privilege log, what categories will be used — including those that will be excluded — and other pertinent issues.
Rule 11-b also states that a categorical approach to privilege logs should be used only “where appropriate” and “where possible,” in recognition that it may not always be desirable in every case. The new rule also states, “[t]he preference in the Commercial Division is for the parties to use categorical designations…to reduce the time and costs associated with preparing privilege logs.”
If the requesting party refuses to use a categorical approach, the Court allows the producing party, upon a showing of good cause, to apply for shifting the costs of preparing a separate entry log, including attorneys’ fees, to the requesting party.
PIB Law represents national banks, retailers, reinsurers/insurers, mortgage lenders and financial services companies from its offices in New Jersey, New York City, Chicago, Boston, San Antonio, and Philadelphia. For more information, contact PIB Law at 908-725-9700.