New York Codes, Rules and Regulations › Title 22 - JUDICIARY › Subtitle A - JUDICIAL ADMINISTRATION › Chapter II - UNIFORM RULES FOR THE NEW YORK STATE TRIAL COURTS › Part 202 - Uniform Civil Rules for the Supreme Court and the County Court › Section 202.70 - Rules of the Commercial Division of the Supreme Court › Rule 202.70.11-b - Privilege Logs

Current through Register Vol. 46, No. 28, July
					 10, 2024
(a) Meet and Confer: General. Parties
					 shall meet and confer at the outset of the case, and from time to time
					 thereafter, to discuss the scope of the privilege review, the amount of
					 information to be set out in the privilege log, the use of categories to reduce
					 document-bydocument logging, whether any categories of information may be
					 excluded from the logging requirement, and any other issues pertinent to
					 privilege review, including the entry of an appropriate non-waiver order. To
					 the extent that the collection process and parameters are disclosed to the
					 other parties and those parties do not object, that fact may be relevant to the
					 Court when addressing later discovery disputes.
(b) Categorical Approach or
					 Document-By-Document Review.
(1) The preference in the Commercial
					 Division is for the parties to use categorical designations, where appropriate,
					 to reduce the time and costs associated with preparing privilege logs. The
					 parties are expected to address such considerations in good faith as part of
					 the meet and confer process (see paragraph (a) above) and to agree, where
					 possible, to employ a categorical approach to privilege designations. The
					 parties are encouraged to utilize any reasoned method of organizing the
					 documents that will facilitate an orderly assessment as to the appropriateness
					 of withholding documents in the specified category. For each category of
					 documents that may be established, the producing party shall provide a
					 certification, pursuant to 22 NYCRR §
												130-1.1a, setting forth with
					 specificity those facts supporting the privileged or protected status of the
					 information included within the category. The certification shall also describe
					 the steps taken to identify the documents so categorized, including but not
					 limited to whether each document was reviewed or some form of sampling was
					 employed, and if the latter, how the sampling was conducted. The certification
					 shall be signed by the Responsible Attorney, as defined below, or by the party,
					 through an authorized and knowledgeable representative.
(2) In the event the
					 requesting party refuses to permit a categorical approach, and instead insists
					 on a document-by-document listing on the privilege log, then unless the Court
					 deems it appropriate to issue a protective order pursuant to CPLR 3103 based
					 upon the facts and circumstances before it, the requirements set forth in CPLR
					 3122 shall be followed. In that circumstance, however, the producing party,
					 upon a showing of good cause, may apply to the court for the allocation of
					 costs, including attorneys' fees, incurred with respect to preparing the
					 document-by-document log. Upon good cause shown, the court may allocate the
					 costs to the requesting party.
(3) To the extent that a party insists
					 upon a document-by- document privilege log as contemplated by CPLR 3122, and
					 absent an order to the contrary, each uninterrupted e-mail chain shall
					 constitute a single entry, and the description accompanying the entry shall
					 include the following:
(i) an
					 indication that the e-mails represent an uninterrupted dialogue;
(ii) the beginning and ending
					 dates and times (as noted on the e-mails) of the dialogue;
(iii) the number of e-mails
					 within the dialogue; and
(iv) the names of all authors and recipients - together with
					 sufficient identifying information about each person (e.g., name of employer,
					 job title, role in the case) to allow for a considered assessment of privilege
					 issues.