On September 25, 2024, the Second Department issued a decision in Joseph v. Rassi, 2024 NY Slip Op. 04548, holding that a party may not unilaterally elect to use a categorical privilege log, explaining:
Pursuant to CPLR 3122(b), whenever a person is required to produce documents for inspection, and where such person withholds one or more documents that appear to be within the category of the documents required to be produced, such person shall give notice to the party seeking the production and inspection of the documents that one or more such documents are being withheld. This notice shall indicate the legal ground for withholding each such document, and shall provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information: (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; and (4) such other information as is sufficient to identify the document.”
Here, the defendants did not comply with the requirements of CPLR 3122(b), as their privilege log failed to individually identify each type of document being withheld, the general subject matter of each document, and the date of each document. Contrary to the defendants’ contention, Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70 [g]) rule 11-b(b) does not authorize the defendants’ unilateral use of categorical designations in their privilege log, absent an agreement by the parties to employ a categorical approach or the issuance of a protective order. Under the circumstances of this case, the Supreme Court should have granted that branch of the plaintiff’s motion which was to compel the defendants to produce a document-by-document privilege log in conformity with CPLR 3122(b).
(Internal quotations and citations omitted).