Current through Register Vol. 46, No. 39, September 25, 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.
(c) Special Master. In complex matters likely to raise significant
is- sues regarding privileged and protected material, parties are encouraged to
hire a Special Master to help the parties efficiently generate privilege logs,
with costs to be shared.
(d) Responsible Attorney. The attorney
having supervisory responsibility over the privilege review shall be actively
involved in establishing and monitoring the procedures used to collect and
review documents to determine that reasonable, good faith efforts are
undertaken to ensure that responsive, non-privileged documents are timely
produced.
(e) Court
Order. Agreements and protocols agreed upon by parties should be memorialized
in a court order.
