PRE-2024 COMMITTEE NOTE
With the advent of electronic discovery and the proliferation of e-mails and e-mail
chains, traditional document-by-document privilege logs may be extremely expensive
to prepare, and not really informative to opposing counsel and the Court. There is a
growing literature in decisions, law reviews, and other publications about the need to
handle privilege claims in new and more efficient ways. The Committee wishes to
encourage parties to cooperate with each other in developing efficient ways to
communicate the information required by Local Civil Rule 26.2 without the need for a
traditional privilege log. Because the appropriate approach may differ depending on
the size of the case, the volume of privileged documents, the use of electronic search
techniques, and other factors, the purpose of Local Civil Rule 26.2(c) is to encourage the
parties to explore methods appropriate to each case. The guiding principles should be
cooperation and the “just, speedy, and inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. 1. See also The Sedona Cooperation Proclamation, available
at www.TheSedonaConference.org, whose principles the Committee endorses.
2024 COMMITTEE NOTE
A reference to the potential use of metadata and categorical logs has been added,
consistent with the approach of this local civil rule to explore and create privilege logs
appropriate to each case. The Advisory Committee Notes to the 1993 amendment to
Rule 26(b)(5) described withholding documents “by categories.” Subsection (b) has
been modified to state that the log should be provided at or about the time of the
Joint Local Rules, S.D.N.Y. and E.D.N.Y.
Effective January 2, 2026
response to the discovery request, but provides that the parties can agree otherwise,
supplementing the existing authority of the court to dictate otherwise. Finally,
subsection (c) encourages the parties to discuss the type of privilege log to be used and
the information fields that should be disclosed and explicitly recognizes that a
categorical or metadata log may be used. Subsection (c)(3) adds that when the parties
use a categorical or metadata log, they are encouraged to discuss whether to allow the
requesting party to request a document-by-document log for a limited number or
percentage of the logged documents. In addition, the presumption that categorical
assertions of privilege are permissible has been modified to recognize that the court
may provide otherwise through the presiding judge’s individual practices or by order.
