On February 11, 2025, the First Department issued a decision in ROAM Capital, Inc. v. Asia Alternatives Mgt. LLC, 2025 NY Slip Op. 00798, holding that documents withheld as privileged but not recorded on a privilege log must be produced, explaining:
Supreme Court did not improvidently exercise its discretion in ordering production of the approximately 71,000 documents picked up by the privilege screen and withheld but not included on any privilege log. Although the parties agreed that privileged documents created after a certain date need not be logged, plaintiff has not demonstrated that the unlogged documents fell into this category. There is no affidavit explaining what these documents are, whether they were ever manually reviewed, or why they were withheld and not logged. Counsel’s unsworn statements are insufficient. Because the burden of proof is on the proponent of the privilege, the unlogged documents were properly ordered produced.
(Internal citations omitted).