As most litigants are painfully aware, document review – even when managed efficiently and cost-effectively – often is the most expensive component of discovery. And in many cases the “second-pass” review of relevant documents for privilege, and the capture of information about privileged documents for the privilege log, becomes the most costly aspect of document review. But as of September 2, 2014, litigants in New York’s Commercial Division will enjoy the benefit of a new rule that simplifies and streamlines the privilege log requirement.
New Rule 11-b (which resides in section 202.70(g) of the Uniform Rules for the Supreme and County Courts) requires parties to meet at the beginning of the litigation to discuss:
- The scope of privilege review,
- What information must be set out in the privilege log (and whether any categories of information may be excluded from the log),
- Whether a Special Master might assist the parties in resolving complex issues around privilege, and
- The use of category-based logging rather than document-by-document itemized logging.
Following the approach adopted in the Southern District of New York and several other jurisdictions around the country, the rule expresses a preference for categorized logging. This aspect of the rule will generate the most dramatic benefits for litigants, as the category-based logging greatly reduces the time and cost of preparing privilege logs. A litigant that resists the categorized approach may be required to bear its opponent’s costs to prepare the privilege log, including attorneys’ fees.
But what if you’re not litigating in a jurisdiction that has expressly adopted a rule allowing streamlined, category-based privilege logs? Consider using the “Facciola-Redgrave Framework,” so named for an excellent article by District of Columbia Magistrate Judge John Facciola and Jonathan Redgrave, in which they advocated a category-based method of creating privilege logs. They suggested a framework for handling privilege logs that “should replace, in many, if not the majority of cases, the traditional document-by-document privilege log process.” Their approach encourages parties to take advantage of the flexibility afforded by Rule 26(f), and reach agreement regarding simplified, categorized privilege logs. These agreements become memorialized in a court order pursuant to Rule 16. The framework could also be used in state courts with similarly flexible rules.
To fully realize the benefits of category-based privilege logs, litigants must finalize the details of the logging requirements before beginning document review. If the document review team understands the logging protocol from the outset, all of its work with privileged documents, including the specific coding of information about each privileged document, can be leveraged for the automatic generation of a draft privilege log. The ability to at least partially automate the process yields substantial savings of time and cost. And in our view, a more efficient and less expensive privilege log definitely qualifies as a better privilege log.