Page 7 - Complex Litigation

NYLJ.COM |
Complex Litigation | MONDAY, JUNE 2, 2014 | S7

privilege logs in fact were deicient, explaining it departs from the concept of a document-by-
Voted:
that the log should “identify each document document log, but proposes two safeguards:
THE BEST
and the individuals who were parties to the (1) the submission of a statement by the party
communications, providing suficient detail or its attorney “certifying to the facts support-
Economic to permit a judgment as to whether the docu- ing the privileged or protected status of the
ment is at least potentially protected from information included within the category;”
Damages disclosure . . Even under this approach, how- and (2) the requirement that a “responsible
ever, if the party invoking the privilege does attorney” be involved in actively overseeing
not provide suficient detail to demonstrate the privilege review.19
Firm
fulillment of all the legal requirements for Notwithstanding the foregoing protections,

application of the privilege, his claim will be the question remains whether, in practice,
rejected.”13 The Second Circuit observed that the recipient of a categorical privilege log will
“We Peel the Onion...” respondents’ log supporting their assertion of have suficient information to assess claims
TM
attorney-client privilege only contained “a cur- of privilege, such that it will not feel the need
sory description of each document, the date, to seek a document-by-document log. The
author, recipient, and ‘comments,’” and held new rule appears to contemplate this likely
that “[t]hese general allegations of privilege problem as well, and provides for potential
[were] not supported by the information pro-

Excelling at Complex Litigation
vided” and “[t]he descriptions and comments
simply do not provide enough information to
support the privilege claim.”14
The proposed rule is one of a
· Business divorce & fair value · Insurance defense
These cases suggest that federal and series of recent changes to
state courts in New York historically have
· Intellectual property
· White-collar defense & tax controversy often required a high level of speciicity, on the Commercial Division Rules
a document-by-document basis, in order to
· Mergers & acquisitions
· Employment & civil rights
sustain a claim of privilege.15
recommended by the Advisory
· Real estate
· Professional malpractice defense
The Proposed Commercial Division Rule.
Council following the June

· Estates & trusts
· Bankruptcy/Insolvency
As noted earlier, the new Commercial Division 2012 Report and Recommen-
· Damages & valuation
Rule relating to privilege log practice seeks to
“promote more eficient, cost-effective pretrial dation of the Chief Judge’s Task
disclosure by establishing a ‘preference’ in Force on Commercial Litigation
Cipolla & Co.
the Commercial Division for the use of ‘cat-
NJ: 212-495-0400 egorical designations’ rather than document- in the 21st Century.
by-document logging.”16 As the Task Force
[email protected] remarks, this rule will join the ranks of other
www.cipollacpa.com
recently-implemented rules and guidelines
Certiied Public Accountants & Litigation Consultants
aimed at minimizing the burden on litigants of cost-shifting in the event a party insists upon
privilege logs—against a background of case a document-by-document log from its adver-
law that has at times required document-by- sary. Moreover, to the extent a party insists
document logs in order to support privilege upon a document-by-document privilege
claims.
log, as contemplated by CPLR 3122, the rule
The proposed rule also requires that par- provides further guidance as to how email
ties meet-and-confer at the outset of a case, chains should be logged. It requires that “each
and as necessary thereafter, to discuss “the uninterrupted e-mail chain shall constitute

scope of privilege review, the amount of infor- a single entry” which is required to include
mation to be set out in the privilege log, the (i) an indication that the e-mails “represent
use of categories to reduce document-by- an uninterrupted dialogue”; (ii) beginning
document logging, whether any categories and ending dates and times of the dialogue;
of information may be excluded from the (iii) the number of emails within the dialogue;
logging requirement, and any other issues (iv) the names of all authors and recipients;
pertinent to privilege review.”17 Thus, the and (v) information suficient to identify each
new rule, much like its counterpart in the person such as name of employer, job title,
Southern District of New York pilot program, and role in the case.20 This is essentially the

contemplates that certain categories of docu- same rule adopted by the Southern District’s
ments such as communications exclusively pilot program with respect to email threads.
between a party and its trial counsel may not It is worth noting that the rule regarding doc-
need to be logged at all.
ument-by-document logging has very speciic
Of course, a categorical approach to privi- requirements, explicitly to “allow for a consid-
lege logs departs from the requirements of ered assessment of privilege issues”—begging
CPLR 3122(b) (which will still be in effect, the obvious question of whether a categorical
even with the new Commercial Division rule) approach to privilege logs can in fact provide
and arguably the speciicity required by cer- suficient information for an adequate assess-

tain cases such as Jane Doe and Construction ment of privilege.
Products. In fact, one of the Commercial Divi- In support of the new rule, the Subcom-
sion Justices in New York County adopted mittee on Procedural Rules to Promote Efi-
Individual Rules that require a privilege log to cient Case Resolution (a Subcommittee of
“identify all redacted and completely withheld the Commercial Division Advisory Council)
documents by bate-stamp numbers, dates, cited a decision by the U.S. District Court for
authors, and recipients, the general subject the Southern District of New York in Assured
matter of the document if it will not waive the Guar. Mun. v. UBS Real Estate Securities, Nos.

privilege, and shall state the privileges being 12 Civ. 1579(HB)(JCF) and 12 Civ. 7322 (HB)
asserted.”18 To preemptively deal with this (JCF), 2013 WL 1195545, at *9-10 (S.D.N.Y.
inherent tension between existing case law March 25, 2013). This case arose out of the
and the need for procedural eficiency, the inancial crisis and involved inancial guaranty
proposed rule precludes a party from object- policies on residential-mortgage-backed secu-
ing to a categorical log solely on the basis that
rities. Vast amounts of electronic » Page S12