Rule Limiting Privilege Log Practice to Take Effect, by Suevon Lee, New York Commercial Litigation Insider Blog

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In an age of exploding electronic discovery that has multiplied the cost and scope of document review, litigants in New York’s Commercial Division will soon have the benefit of revised privilege log practice.

Starting September 2, new Rule 11-b, signed Tuesday by Chief Administrative Judge Gail Prudenti, will instruct parties to meet at the outset of the case and afterward to discuss the scope and parameters of privilege review. It also will strongly encourage using categorized designations for documents as opposed to itemized listings to help streamline the process.

Parties who resist the categorized approach may be subject to attorney fees upon a showing of good cause by the other side or a protective order from the judge.

Modeled after guidelines set forth in such jurisdictions as the Southern District of New York and Delaware Court of Chancery, the rule offers ‘a meaningful way for courts and parties to assess the assertion of privilege,’ said David H. Tennant, a partner at Nixon Peabody, who co-drafted the language with Jonathan Lupkin, of Rakower Lupkin. They are members of an advisory group charged with proposing changes to Commercial Division practice to offer a more efficient and cost-effective forum for litigants and their business clients. . . .