June 3, 2025

Privilege Log: Categorical Approach v. Document-by-Document Approach

By Laura Trachtman
Most clients know that their communications with their attorneys are protected by attorney-client privilege.  In New York State, this protection is enshrined in CPLR § 4503. However, as with all things in the law, privilege isn’t that simple. 

Why are we talking about this? Because in the discovery phase of litigation, when a party produces documents to the other side, the attorney must also disclose the documents that she is not producing. This is called a privilege log and, in New York State courts, is governed by CPLR § 3211(b), which specifies what the privilege log must include: “(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 for a subpoena duces tecum.”

However, there are exceptions to that rule, such as those set forth in the Commercial Part Rules as enshrined in 22 NYCRR 202.70, Rule 11-b(b), which allows for a categorical approach, as opposed to document-by-document approach, which lists every.single.document in the privilege log.  

What is a categorical approach to a privilege log? Is it defined as “any reasoned method of organizing the documents that will facilitate an orderly assessment as to the appropriateness of withholding documents in the specified category.” OK, but what does that mean?  The NYC Bar Association has issued this document which helpfully provides both guidance and a model privilege log for those who remain confused. Generally speaking, a categorical approach to a privilege log means sorting documents into broad categories and identifying them by using a date range, the names of individuals who sent or received the communications, and a general description of what the documents are (“communications with outside counsel”) (“communications with in-house counsel”). 

Boy howdy does this seem like a reasonable way of organizing documents, and is a big time-saver, to boot. For anyone who’s ever wanted to gouge out their eyeballs while drafting a spreadsheet accounting for each and every document withheld on the basis of privilege, a/k/a a document-by-document privilege, the categorical approach might seem like a god-send.  

But if I’ve learned nothing else in writing this blog, I’ve learned that there are rules to every shortcut.  And accordingly, here are the rules:

  1. An attorney can’t unilaterally decide that she wants to use the categorical approach – counsel for all parties must agree upon the approach, although the Commercial Division’s preference is for categorical designation.  
  2. When counsel for all parties do agree upon the categorical approach, each privilege log must be accompanied by a certification pursuant to 22 NYCRR § 130-1.1 specifying:
    1. the facts which support the privileged or protected status of the information contained within each category; 
    2. The steps taken to identify the documents – whether each document was reviewed or whether documents were “sampled” (a couple of documents were inspected at random); and
    3. If the documents were sampled, how the sampling was conducted. 

Rule 1: parties must agree.  This is going to be tough to start, because the plaintiff is going to want to know exactly what documents are going to be withheld and based on what privilege.  

  • HOWEVER No. 1, if the requesting party refuses to agree to the categorical approach, AND the court refuses to issue a protective order, upon good cause shown, the court can allocate costs for the document-by-document approach to the party who refused to allow the categorical approach.  (Rule 11-b(3)). 
  • HOWEVER No. 2, even with the document-by-document approach, the court allows for the following shortcut for email chains:  “​​(i) an indication that the e-mails represent an uninterrupted dialogue; (ii) the beginning and ending dates and times (as noted on the e-mails) of the dialogue; (iii) the number of e-mails within the dialogue; and (iv) the names of all authors and recipients – together with sufficient identifying information about each person (e.g., name of employer, job title, role in the case) to allow for a considered assessment of privilege issues.”   

Rule 2: categorical designation must be certified. The first important note is that 22 NYCRR 130-1.1 is the statute that governs sanctions.  In other words, if you make this certification and you’re being untruthful and the court finds out, both you and your client could suffer significant consequences. 

Rule 2a: facts which support the category. The certification must state why the documents are privileged – “communications involved attorneys” or something similar. 

Rule 2b: Steps taken to identify the documents. How were these documents, out of all of the documents involved in the case, selected as privileged? “Search of attorney’s email inbox for client’s name” seems like it would be a good start.

Rule 2c: If sampled, describe how. Simply state the steps taken to populate the sample. “Every 5th email was reviewed to see whether it was attorney-client privilege.” 

As always, while the categorical approach is an excellent shortcut, the attorney must be careful when utilizing it, or else the attorney can expose both herself and her client to sanctions. Similarly, the rules encourage the parties to work together on discovery issues, which is in line with the court’s general requirements, the ethical suggestions re: civility, and general good practice for attorneys. I’m all for raining hellfire down on opposing counsel when they need an attitude check, but it’s just as important to remember that we’re all doing our jobs and sometimes we need to catch a break.