Page 6 - Complex Litigation

S6 | MONDAY, JUNE 2, 2014 | Complex Litigation
| NYLJ.COM

similarly advocates a categorical approach

to privilege review accompanied by coopera-
tion among counsel and signiicant judicial
involvement; (3) the pilot program for com-
plex civil cases in use by the U.S. District
Court for the Southern District of New York
since October 2011, which makes available, at
either party’s request, in camera sampling of
assertions of privilege along with limited let-
ter brieing and swift judicial resolution; and

(4) the approach adopted by the Delaware
federal court limiting log entries to commu-
nications generated before the complaint is
iled, excluding discovery communications
related to document preservation, requiring
non-waiver orders for the return of inadver-
tently produced privileged communications
and instructing parties to confer on the nature

and scope of privilege logs.6
The General Rule on Privilege Logs: CPLR
3122(b). Practitioners litigating cases in New
York state courts are required to exchange
privilege logs pursuant to New York Civil Prac-
tice Law & Rules §3122(b). This rule—which
will co-exist with the new Commercial Division
rule—requires parties who wish to withhold posed
privileged documents to prepare a log con- e newly pro
Delve into th.
taining a separate entry for each document, Division rule
including (1) the type of document; (2) the Commercial
general subject matter of the document;
(3) the date of the document; and (4) such
other information as is suficient to identify
the document. This requirement comports
with the directive of the New York Court of
Appeals in In re Subpoena Duces Tecum to
Jane Doe, in which it recommended that “a

party seeking to protect documents from dis-
closure compile a privilege log in order to aid
the court in its assessment of a privilege claim
and enable it to undertake in camera review.”7
Moreover, in that case, the Court of Appeals
stated that a privilege log “should specify
the nature of the contents of the documents,
who prepared the records and the basis for

the claimed privilege.”8 This directive works
in conjunction with the oft-cited proposition
that the burden of establishing privilege rests
on the party asserting the privilege. See, e.g., OCK
Spectrum Sys. Intl v. Chem. Bank, 78 N.Y.2d GST
371, 377 (1991) (“Obvious tension exists BI
between the policy favoring full disclosure
and the policy permitting parties to withhold
relevant evidence. Consequently, the burden

a ‘preference’ in the Commercial Division for ume of complex cases.4 One such reform is a of establishing any right to protection is on
BY LAUREN E. AGUIAR use of ‘categorical designations’ rather than new rule governing privilege logs. Indeed, the the party asserting it.”).
AND JULIE E. COHEN
document-by-document logging.”1 In light of Task Force rightly recognized what commer- In making this suggestion regarding the
P existing federal and state case law, however, it cial litigators know to be a truism, and what description of privileged documents, the
rotecting privileged documents—and is unclear whether and to what extent the rule many other commentators have observed: New York Court of Appeals relied upon the
the often resource-intensive process will in fact lessen the burden on practitioners.
Creation of privilege logs has become
earlier decision of the Second Circuit Court of
of properly logging those materials—
Task Force on Commercial Litigation a substantial expense in complex com- Appeals in United States v. Construction Prod-
is a necessary yet often frustrating aspect in the 21st Century Considers Procedural ucts Research, in which a party’s privilege log
of a complex commercial litigation prac- Reforms. The proposed rule is one of a series mercial litigation matters. Often, the cost was held to be deicient.In that case, a federal
outweighs their value because the logs 9
tice. Recognizing this reality, the New York of recent changes to the Commercial Division are not reviewed or used in any way by agency issued an administrative subpoena
State Commercial Division Advisory Council Rules recommended by the Advisory Council the parties. There is demonstrable need to two companies that refused to comply,
recently recommended the adoption of a new following the June 2012 Report and Recom- to limit unnecessary costs and delay in prompting the United States to ile a petition
rule designed to allow litigants to streamline mendation of the Chief Judge’s Task Force on the creation of these logs while preserv- to enforce the subpoena.10 The district court
privilege log practice. The newly proposed Commercial Litigation in the 21st Century (the ing the ability of the parties and court adopted the magistrate judge’s recommenda-
Commercial Division rule relating to privi- Task Force).2 As the Task Force acknowledged to police unwarranted withholding or tion, granting the petition and holding that
lege log practice (22 NYCRR §202.70(g)) is in its report, the “judges of the Commercial redaction of documents in discovery.5
respondents’ claim of privilege be rejected
intended to “promote more eficient, cost- Division adjudicate thousands of cases and as a general defense to enforcement of the

effective pretrial disclosure by establishing
motions that include some of the most impor- In light of this, the Task Force initially subpoena.11 On appeal, the respondents
tant, complex commercial disputes being liti- suggested four alternative methods for continued to withhold certain documents on
gated anywhere.”3 The Advisory Committee improving the process: (1) application of the grounds of attorney-client privilege, and
set out to provide recommendations, includ- the Sedona Principles for classifying privi- argued that the district court erred in holding
LAUREN E. AGUIAR is a partner and JULIE E. COHEN is ing a variety of procedural reforms, to directly leged documents by category; (2) the so- that they had failed to establish privilege.12
an associate at Skadden, Arps, Slate, Meagher & Flom.
confront the weighty demands of a high vol-
called Facciola-Redgrave framework, which
The Second Circuit held that Respondents’