Major changes in NY privilege log practice should save time and money

In this age where e-discovery increased the cost of litigating, New York’s Commercial Division will benefit from Rule 11-b, otherwise known as the revised privilege log practice, starting from September 2, 2014.

According to the order issued on July 8, 2014, Rule 11-b will require parties to meet before and throughout litigation to discuss the “scope of privilege review, the amount of information to be set out in the privilege log, the use of categories to reduce document-by-document logging, whether any categories of information may be excluded from the logging requirement, and any other issue pertinent to privilege review”. The rule encourages methods to simplify the process, by suggesting the use of the categorical approach to reduce time and expenses related to the preparation of privilege logs.

Should a party insist on a document-by-document listing on the privilege log, costs may be allocated to the requesting party upon good cause shown. Furthermore, in case of document-by-document listing, Rule 11-b requires each uninterrupted e-mail chain to constitute a single entry. The court continues by specifying the items to be described with these types of entries: (i) indication that chain constitutes an uninterrupted dialogue; (ii) beginning and ending time of the dialogue; (iii) number of e-mail constituting dialogue; and (iv) names of author and recipient.

Finally, the rule encourages parties to share the costs of hiring a special master to sort out issues over privilege logs and to designate a lawyer who will supervise the process.

Referenced Authorities:

  • Rule 11,b, Section 202.70(g), Uniform Rules for the Supreme and County Courts

The full text of the order is available at: http://pdfserver.amlaw…

Administrative Order Adopting Rule 11-b


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