A proposed rule issued by the Office of Court Administration Thursday would modify privilege log practice in the Commercial Division to streamline the process and ease the burden and costs on litigants.
Under New York Civil Practice Law & Rules 3122, parties who wish to withhold privileged documents must prepare a log containing a separate entry for each document, the date of the document, who it was sent to from whom and the reason for asserting privilege.
In a complex commercial case, these entries can run hundreds of pages long. Preparing a privilege log, therefore, can cost clients up to hundreds of thousands of dollars in a complex case—even when this cost may outweigh the stake of litigation on a whole.
The proposed change, which is open for public comment, addresses this problem of disproportionality by limiting the privilege log while still preserving its benefits.
“The goal here was to provide a requesting party with enough information on the log so that it can make an appropriate judgment about the validity of the other side’s privilege claim, but to do so using a more efficient and less cumbersome process,” said Jonathan Lupkin of Rakower Lupkin. He helped draft this amendment with David Tennant, Rochester-based partner at Nixon Peabody.
Both are members of an advisory council formed by Chief Judge Jonathan Lippman last year to suggest changes that will spur positive growth in the Commercial Division and raise its profile.
The privilege log amendment allows parties to group entries by category while encouraging parties to meet and confer at the outset of the case, and at appropriate points thereafter, to discuss the scope of privilege review. It also proposes a way to redistribute the costs of document-by-document entry onto the party who objects to the categorized approach, upon a showing of good cause by the other side.
It also counts a continuous, uninterrupted email chain as a single document in a nod to the explosion of electronic discovery in recent years.
“Privilege logs tend to be a poor value proposition for clients because they can incur substantial legal costs for a document that often sits on a shelf and never gets used,” said Tennant. “We tried to come up with something faster, cheaper and smarter that basically will be respectful of proper assertions of privilege but will handle the compiling and review of privileged materials to make it less onerous and time-consuming.”
Lupkin said the amendment will make it easier for parties to determine the legitimacy of a privilege assertion.
“While there are frequently privilege issues in a litigation, the problem is the need for an item-by-item log,” he said. “Is such detail necessary to determine the bona fides of a privilege claim, or is it being insisted upon as part of an expensive scorched earth approach?”
“The logs would contain enough information to allow for some analysis of whether or not the asserted privilege appears to be facially plausible,” Lupkin said.
This rule would bring the Commercial Division more in line with jurisdictions such as the Southern District of New York and Delaware Court of Chancery, whose practices served as a model for this recommendation.
The amendment is the latest proposal OCA has released for public comment based on a recommendation from the advisory council, which is chaired by Robert Haig, partner at Kelley Drye & Warren.
Other proposals introduced in recent months include a pilot mandatory mediation program in New York County; accelerated adjudication procedures; a new preliminary conference form; and the use of retired litigators to handle discovery matters.
The public comment period for the rule on privilege logs is open through June 2. The entire proposal and instructions for submitting a public comment are available on the OCA website found here.