“Taking a Page from Litigation: Curbing Discovery Costs in Arbitration”

A common complaint these days is that arbitration is becoming more like litigation. Protracted motion practice surrounding discovery disputes has become the norm in the arbitration arena. Privilege determinations and privilege logs, which can involve thousands of individual entries, have been at the forefront of discovery disputes in both litigation and arbitration.

New York courts are taking 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 goes into effect on September 2, 2014, establishes a preference for "categorical" privilege logs. Rule 11-b 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."