Protecting privileged documents—and the often resource-intensive process of properly logging those materials—is a necessary yet often frustrating aspect of a complex commercial litigation practice. Recognizing this reality, the New York State Commercial Division Advisory Council recently recommended the adoption of a new rule designed to allow litigants to streamline privilege log practice. The newly proposed Commercial Division rule relating to privilege log practice (22 NYCRR §202.70(g)) is intended to “promote more efficient, cost-effective pretrial disclosure by establishing a ‘preference’ in the Commercial Division for use of ‘categorical designations’ rather than document-by-document logging.”1 In light of existing federal and state case law, however, it is unclear whether and to what extent the rule will in fact lessen the burden on practitioners.

Task Force on Commercial Litigation in the 21st Century Considers Procedural Reforms. The proposed rule is one of a series of recent changes to the Commercial Division Rules recommended by the Advisory Council following the June 2012 Report and Recommendation of the Chief Judge’s Task Force on Commercial Litigation in the 21st Century (the Task Force).2 As the Task Force acknowledged in its report, the “judges of the Commercial Division adjudicate thousands of cases and motions that include some of the most important, complex commercial disputes being litigated anywhere.”3 The Advisory Committee set out to provide recommendations, including a variety of procedural reforms, to directly confront the weighty demands of a high volume of complex cases.4 One such reform is a new rule governing privilege logs. Indeed, the Task Force rightly recognized what commercial litigators know to be a truism, and what many other commentators have observed:

Creation of privilege logs has become a substantial expense in complex commercial litigation matters. Often, the cost outweighs their value because the logs are not reviewed or used in any way by the parties. There is demonstrable need to limit unnecessary costs and delay in the creation of these logs while preserving the ability of the parties and court to police unwarranted withholding or redaction of documents in discovery.5