Page 12 - Complex Litigation

S12 | MONDAY, JUNE 2, 2014 | Complex Litigation
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Privilege
to Local Rule 26.2 “possibly to be followed law requiring a high level of speciicity to 10. Id. at 469.
11. Id. at 468.
by more particular itemization of documents meet that burden. It may be that categorical 12. Id.
in a subset of those categories”); Chevron v. logs are best used as a irst step in a dialogue 13. Id. at 473 (citations omitted).
« Continued from page S7
Salazar, No. 11 Civ. 3718 (LAK)(JCP), 2011 WL between the parties, to identify categories 14. Id. The “cursory description” and comments in-
discovery were generated in the litigation. In 4388326 (S.D.N.Y. Sept. 20, 2011) (holding that of documents presumptively privileged that cluded “(a) ‘Fax Re: DOL Findings’ with comment ‘cover sheet;’ (b) ‘Fax: Whistleblower article’ with comment
the case, Magistrate Judge James C. Francis where the manner in which a category log need not be logged and other categories that ‘Self-explanatory;’ (c) ‘Letter Re: Customer Orders’ with
granted the defendant’s motion to identify its was implemented obscured the documents must be logged on a document-by-document comment ‘Re: Five Star Products;’ (d) ‘Summary of En-
privileged documents by category. In doing being withheld, the party subsequently was basis. The documents that parties insist on closures’ with comment ‘Self-explanatory;’ etc.” Id. at
so, he speciically noted that Federal Rule of required to produce an itemized privilege being logged individually may be those most 474.
Civil Procedure 16 as well as the committee log).In fact, in the 2013 Southern District vulnerable to attack, including documents 15. Cf. Securities and Exchange Commission v. Thrash-
21 er, No. 92 CIV 6987 (JFK), 1996 WL 125661 (S.D.N.Y. March 20, 1996) (holding that in appropriate circum-
note to Local Civil Rule 26.2 recognize the case Fleisher v. Phoenix Life Insurance Com- shared with third parties such as a banks, stances, the court may permit the holder of withheld
burden of document-by-document privilege pany, the court recently held that a categori- accountants, and inancial advisors. Given the documents to provide summaries of the documents by
logs and he pointed out that several judges cal log fell “far short” of being acceptable current case law, parties agreeing to exchange category or otherwise to limit the extent of disclosure);
in the Southern District have endorsed a cat- where it listed only four “broad classes of categorical privilege logs should be prepared In re Rivastigmine Patent Litig., 237 F. R.D. 69 (S.D.N.Y.
egorical approach.
documents.”22 Moreover, the court noted that in any event to complete a document-by- 2006) (noting that an itemized privilege log is required but that a categorical log may be used where “a docu-
Southern District Local Rule 26.2(c) spe- only one category identiied individual docu- document log, and should consider how to ment by document listing would be unduly burdensome
cifically states “when asserting privilege ments “but even there, the description that provide suficient information so as to avoid and (b) the additional information to be gleaned from
on the same basis with respect to multiple purports to apply to all of them is exceedingly the ire of a court forced to undertake an in a more detailed log would be of no material beneit to
the discovering party in assessing whether the privilege
documents, it is presumptively proper to general and unhelpful.”23 In what some may camera review of documents in response to claim is well-grounded” and thereafter inding the “vast majority of the categorical justiications provided” were
provide information required by this rule characterize as a harsh result, the court held a privilege dispute.
inadequate and therefore all corresponding documents
by group or category” and mandates that a that the defendant had forfeited any claim
•
were required to be produced).
party receiving such a privilege log “may not 24
of privilege or work product protection. In
•••••••••••••• •••••••••••••• 16. Memorandum from John W. McConnell to: All
object solely” on the basis that it departs from another recent decision in McNamee v. Cle- 1. Memorandum from John W. McConnell to: All Inter- Interested Persons, Proposed Amendments to the
a document-by-document or “communication- mens, the U.S. District Court for the Eastern ested Persons, dated April 3, 2014, available at https:// Statewide Rules of the Commercial Division Regarding Privilege Logs, dated April 3, 2014, available at https://
by-communication” listing. Instead, a party District of New York upheld the opinion of www.nycourts.gov/rules/comments/PDF/PCPacketPrivi- www.nycourts.gov/rules/comments/PDF/PCPacketPrivi-
may object “if the substantive information Magistrate Judge Cheryl L. Pollak, inding that legeLogs.pdf.
2. Report and Recommendations to the Chief Judge legeLogs.pdf.
required by this rule has not been provided defendant Roger Clemens waived privilege of the State of New York, The Chief Judge’s Task Force 17. Id.
on Commercial Litigation in the 21st Century, June 2012 18. Practice in Part 54, Judge Shirley Werner Korn-
in a comprehensible form.” But this rule and where he submitted a categorical log consist- (Report and Recommendations), http://www.nycourts. reich, available at http://www.nycourts.gov/courts/com- div/PDFs/Part_54_Practices.pdf.
the cases purporting to endorse a categori- ing of “one-sentence assertions of privilege.25 gov/courts/comdiv/PDFs/ChiefJudgesTaskForceOnCom- 19. Id. at Subcommittee Proposal and Exhibit A.
cal approach again highlight the question of The district court deemed the log “wholly mercialLitigationInThe21stpdf.pdf.
3. Report and Recommendations at 1. 20. Id. at Exhibit A.
whether a categorical approach will ever pro- inadequate,” inding that it contained “unhelp- 4. Id. at 2-3.
21. Cf. Automobile Club of New York v. Port Authority
vide enough information for the party receiv- ful” and “vague” descriptions, which “seri- 5. Id. at 17.
of New York and New Jersey, 297 F.R.D. 55 (S.D.N.Y. 2013)
ing the log to fully and properly evaluate the ously impeded” the court’s examination.26
6. Id. at 17-18.
(noting that a “categorical privilege log is adequate if it provides information about the nature of the withheld
assertion of privilege.
Practical Implications. Implementation 7. In re Subpoena Duces Tecum to Jane Doe, 99 documents suficient to enable the receiving party to
Indeed, several recent opinions, including of the new Commercial Division rule with N.Y.2d 434, 443 (2003); see also In the Matter of Nassau County Grand Jury Subpoena Duces Tecum Dated June make an intelligent determination about the validity of
some that post-date the start of the S.D.N.Y. respect to privilege logs has the potential to 24, 2003, 4 N.Y.3d 665, 679 (2005) (citing Jane Doe and the assertion of privilege” and holding that a categori-
noting that in responding to a subpoena issued by the cal log was suficient with the exception of the manner
Pilot Program, suggest that once a category go a long way toward giving parties lexibility attorney general, “nothing prevent[ed] appellants from in which defendant had broadly described the authors
log has been provided, it may be necessary and easing the burden of traditional docu- compiling a privilege log and asserting the privilege as to particular documents in the grand jury proceedings”); and recipients of the withheld documents and therefore requiring a supplemental and mores speciic explanation
or prudent for the parties to agree on spe- ment-by-document privilege logs. However, Zheng v. Bermeo, 114 A.D.3d 743 (2d Dep’t 2014) (citing of such individuals for each category).
ciic categories of documents that should be practitioners would be wise to proceed with CPLR 3122 and Jane Doe and holding that the Supreme 22. Fleisher v. Phoenix Life Insurance Company, No. 11
logged on a document-by-document basis. caution and consider how they can provide Court “improvidently exercised its discretion” in grant- Civ. 8405(CM)(JCF), 2013 WL 42374, at *3 (S.D.N.Y. Jan.
See, e.g., American Broadcasting Companies suficient detail in categorical logs in order to ing plaintiff’s motion to compel disclosure of documents 3, 2013).
v. Aereo, No. 12 Civ. 1540(AJN), 12 Civ. 1543, meet the burden of demonstrating the privi- without irst requiring an in camera review and produc- tion of a detailed privilege log).
23. Id.
24. Id.
2013 WL 139560 (S.D.N.Y. Jan. 11, 2013) (sub- leged nature of the documents being withheld. 8. Id.
25. McNamee v. Clemens, No. 09-CV-1647(SJ)(CLP),
9. United States v. Construction Products Research, 73 2014 WL 1338720, at *3 (E.D.N.Y. April 2, 2014).
mission of categorical privilege logs pursuant
They also should be cognizant of existing case
F.3d 464, 473-74 (2d Cir. 1996).
26. Id.