"New York Commercial Division Adopts Rule to Curb Discovery Costs"

Discovery can be both the most important and the most expensive step in the litigation process. Cases can be won or lost based on what comes out in discovery. Discovery, however, has long been an expensive undertaking, and with the advent of electronically stored information ("ESI"), these costs have become so burdensome that parties may choose to settle just to avoid the expense. It has been estimated that, in federal cases, discovery accounts for half of all litigation costs. Privilege determinations and privilege logs are frequently at the forefront of discovery disputes, and the creation of privilege logs can require attorneys to log thousands of individual entries, with the concomitant expense.

New York courts took a giant leap forward in curbing the costs of discovery by adopting a Rule in New York Supreme Court's Commercial Division designed to lessen the burden of producing privilege logs. Rule 11-b of Section 202.70(g) of the Uniform Rules for the Supreme and County Courts (Rules of Practice for the Commercial Division) ("Rule 11-b"), which went into effect on September 2, 2014, establishes a preference for "categorical" privilege logs.

This Stroock Special Bulletin discusses Rule 11-b, which is intended to "promote more efficient, cost-effective pretrial disclosure by establishing a 'preference' in the Commercial Division for use of 'categorical designations' rather than document-by-document logging."