New York’s Rule 11-b: the Categorical Approach to Privilege Logs

CERN Globe of Science and Innovation - inside 2010-07-01

Summary of the Rule
An innovative New York civil procedure rule which became effective on September 2, 2014 embraces a more practical and cost-effective style of privilege log. The new rule encourages parties to depart from the traditional “document-by-document” type of privilege review in favor of more economical categorical designations. This categorical approach allows the parties “to utilize any reasoned method of organizing the documents that will facilitate an orderly assessment” of the documents being withheld.

The stated purpose of the rule is “to reduce the time and costs associated with preparing privilege logs” as compared to the labor-intensive traditional approach that requires the logging of each individual withheld document, which often results in thousands of privilege entries and logs comprising hundreds of pages. In the categorical approach, the producing party sets forth the facts supporting their privilege claim for discrete categories of documents, and under appropriate circumstances, can even employ sampling rather than linear review of the potentially privileged documents.

A party that refuses to allow the other side to use this categorical approach may be subjected to an allocation of costs upon showing of good cause by the producing party. And, in cases where document-by-document review is insisted upon by a party, the rule relaxes the traditional logging requirements by allowing for single entries for each email chain, as opposed to separate entries for every individual email.

My Take
As other commentators have rightly pointed out, a detailed document-by-document privilege log is a significant cost component of document review, and in my view, the benefits of such logs are fairly minimal.

While privilege log descriptions can vary greatly in terms of style and substance, the fictional example below should pass most people’s threshold for adequate substance and detail:

Confidential email from Acme executive S. Diggs to in-house counsel J. Dixon requesting legal advice regarding draft marketing materials relating to widget 2.0 product release.

The purpose of the individual log entry is to give the opposing side sufficient information to evaluate, and potentially challenge, the assertion of privilege. But do entries like the above really accomplish that? The entry identifies who is asking whom for legal advice, but otherwise simply asserts the key issue here—that this is a confidential request for legal advice. If it wasn’t– for example– if it was seeking business rather than legal advice, or if it didn’t even contain any request at all—what in the description would alert the recipient that such was the case? In my experience, the overwhelming majority of privilege log entries contain bald assertions that “this document contains a request for legal advice,” or “this document reflects rendering of legal advice,” and on and on and on, and the receiving party has little basis or cause to challenge those assertions.

Of course, under some circumstances you might find further clues in the description—such as, if the cited in-house counsel was known to offer only business advice, or if the marketing of widget 2.0 was a known issue in which the legal department was not consulted. But these types of context clues are the exception, not the rule.

All of which is why the categorical approach is such a useful tool— not only does it eliminate the time-consuming and expensive step of drafting (often useless) document-by-document log entries, but it encourages the parties, via meet and confers, to directly address the specific privilege issues in dispute. So, if on a given topic, certain in-house counsel were serving as business advisors and not legal advisors—well, that’s a privilege category to discuss. If a certain series of events were not related to the legal issues that were discussed with counsel— that’s another category. The parties can then negotiate these general categories in advance, and once agreement is reached (or an order issued), the producing party can wholly exclude the types of agreed upon documents, without a repetitive and costly listing of each of those documents with a customized log description. Whether documents are withheld in aggregate categories or individually logged, the receiving party is essentially taking the producing party’s privilege assertion on faith.

An Alternative
For those jurisdictions wanting to ease the burden of privilege review, but who aren’t ready to scrap the document-by-document privilege log, I have another solution: keep the document-by-document approach, but get rid of the privilege description field. Drafting privilege descriptions is easily the most time consuming and costly part of the privilege review process, and they rarely provide enough information to give the receiving party a basis to question individual documents. The items that do offer valuable hints toward the possible content of a document — such as document date, custodian, document title, document type, and to and from information—are objective data that can be generated automatically by most review software, with little to no additional attorney time. In my opinion, this would capture the majority of the benefits of the document-by-document approach at a fraction of the cost.

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