Procedure
June 3, 2025
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 § 3122(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:
- 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.
- 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:
- the facts which support the privileged or protected status of the information contained within each category;
- 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
- 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.
May 20, 2025
By Laura Trachtman
There are times when you’ve brought a motion before a judge, and you strongly believe that the judge wrongly ruled against your client. When this happens, you have a couple of options. You can notice an appeal (which must be done within 30 days of the filing of the Notice of Entry), you can make a motion to reargue, and you can make a motion to renew. Please note that these are conjunctives, not disjunctives, so you can take all of these steps if you can satisfy the requirements.
Why are there so many different options? Great question. Each serves a different purpose.
The appeal is simple – you’re going to ask the appellate court to review the lower court’s decision and see if it was properly decided.
- The pros of appealing is that your claim will be reviewed by a panel of appellate division judges, and I have usually been fairly impressed with their legal acumen.
- The cons are that it’s both expensive and time consuming. I once waited for 18 months to have an appeal decided after it was fully briefed and oral argument was made before the panel.
- Also, if you request oral argument, you’d better bring your A game, because the judges on the appellate division do not play around and the oral arguments are livestreamed, so you can make a fool of yourself in front of everyone tuning in to spectate.
The motion to reargue is based on CPLR § 2221(d), and applies where a judge misapprehended a matter of fact or law. In other words, if you think the judge misunderstood something in their Decision + Order, you can make this argument and see if this second bite at the apple helps them to better understand the point you’re trying to make.
- The pros of making a motion to reargue is that it costs no more than the filing fee for the motion.
- The cons are that I find making a motion to renew to be a bit awkward. You’re literally telling the judge that you think they were wrong, which doesn’t always go over so well – especially if you’re going to continue to appear before the same judge.
- The other sticky wicket on a motion to reargue is that there’s no appeal from the decision on a motion to reargue, so your best bet is to both file an appeal and a motion to reargue as a belt-and-suspenders approach, and withdraw the appeal if you win the motion to reargue.
The motion to renew is based on CPLR § 2221(e), and is based on new information not previously known to the movant at the time the motion was made: either the law has changed or new facts have emerged. In other words, if you learned new information after you submitted your motion, you can make a motion to renew. You must also provide a reasonable justification for why the new information included in the motion to renew was not included in the prior motion to ensure that the new information is actually new.
- The pros of a motion to renew are that it can be very effective, and in my experience, a judge is more likely to grant a motion to renew than one to reargue. Like its statutory sibling, the motion to renew is also cheap: the cost of a motion filing fee.
- The cons are that elements of a motion to renew are much more stringent than a motion to reargue. You must have new information — either a new legal argument or new facts, and you must be specific in both making your argument about the new information and explaining why this information had not previously been submitted. In fact, the court lacks discretion to grant renewal without a justifiable excuse for the failure to present new facts on the prior motion – in other words, the court literally cannot grant renewal if you haven’t satisfied the prerequisites.
- You can appeal the decision on a motion to renew, which gives you a little extra time to pull yourself together if you end up losing and you haven’t submitted an appeal on the underlying motion.
Both the motion to renew and reargue must be clearly labeled by the movant, and that can be a bit tricky composition-wise, as often facts pertain to both a motion to renew and one to reargue. I personally love drafting CPLR § 2221 motions because they are so persnickety, and I find rising to the challenge of clear and careful drafting eminently satisfying.
April 22, 2025
By Laura Trachtman
A Notice to Admit is, IMO, a largely overlooked litigation device that can be very useful. It has some particular uses that can lighten an attorney’s load and ease the general prosecution or defense of a client’s case.
First: what is a Notice to Admit? A Notice to Admit, which is authorized by CPLR § 3123, is a written request for the other side to admit something. It is designed to put to rest smaller factual issues, such as questions relating to dates, or the genuineness of documents, including photographs.
So why am I talking about it?
We all know that discovery takes up the most time, effort and expense of any litigation, excepting trial. Due to the 2021 updates to the CPLR and the NYCRR, a party may now only take 7 hours to depose another party or another witness, absent good cause shown. By serving a Notice to Admit upon the other party, you can supplement the Interrogatories (which are now also limited to 25 per party) and Requests for Discovery and Inspection without taking valuable time in a deposition that could be spent on more important issues. This is particularly the case if a party has served documents with conflicting information. For example, if the other side produced documents memorializing different dates for a contract, for example, or the date of hire, the Notice to Admit can be submitted to clear up the misunderstanding.
The true beauty of the Notice to Admit, however, is that unlike other discovery devices, if opposing counsel doesn’t timely respond, all topics contained within the Notice to Admit are automatically deemed admitted. So, if opposing counsel doesn’t seem to be as diligent as she should be, this device can be incredibly useful. Also, it can be served any time up until 20 days before trial, which is great because if there’s something you forgot to ask about during discovery and trial is coming up, you can still resolve the issue.
If opposing counsel does respond and denies, for example, the genuineness of a document, and the document is later determined to be genuine, the statute authorizes a motion for the expenses incurred, including attorney’s fees, in resolving this dispute. Furthermore, this remedy is available regardless of whether your client prevails on the merits.
Naturally, it does have its limits. You cannot use a Notice to Admit to get to the issues at the heart of a dispute: If you serve a Notice to Admit stating “Plaintiff admits that it breached its contract with Defendant” and Plaintiff’s counsel fails to respond within the statutory time period, the Court won’t allow the entire case to be resolved. The Notice to Admit can only be used for the matter in which it was served; it won’t serve as the basis for a res judicata motion down the line.
In sum, the Notice to Admit is a very handy device that can be used at basically any point in a litigation before trial, and that has potentially very high benefits at a very low cost.
April 8, 2025
By Laura Trachtman
The first thing that my dad made me do after I was admitted to practice was to register as a notary public with the State. Why? Because in order to file sworn documents with the Court, lo those many years ago, said document needed to be witnessed by a notary public. The exception, according to the older version of CPLR § 2106, was for lawyers, doctors, osteopaths, or dentists, all of whom were allowed to affirm, but when our clients needed a document submitted, it had to be notarized. Hence, my father’s insistence.
The answer to the obvious question of “what is a notary public?” will be abbreviated, because the history goes back to Cicero, and nobody wants that. Suffice to say that the notary public basically attests that you are who you say you are and that you have sworn under penalty of perjury that what you are saying is true. In actuality, the notary public would just check your identification to make sure you are who you say you are, and leave the perjurers to be relegated to the Eighth Circle of Hell, malebolge, which is reserved for those who commit crimes of fraud. Oh Dante, you never get old.
Perhaps realizing that trying to find a notary public in today’s day and age is like trying to find someone who uses a typewriter (they exist, but are challenging to locate), the Legislature amended CPLR § 2106 to allow anyone to affirm the truth of a document, not just the aforementioned professionals. Aside from making life a little bit easier for all involved, this amendment was also designed to bring New York Practice more in line with federal practice – a recent trend which shall pop up every so often in these blog posts.
It’s important to note that just because anyone can now make an affirmation, that privilege must not be taken for granted. For example, in Zhou v. Cent. Radiology, PC, 84 Misc. 3d 410, 418–19, 220 N.Y.S.3d 580, 586–87 (N.Y. Sup. Ct. 2024) (emphasis supplied), the litigants were not as meticulous as they should have been. The Honorable Tracy Catapano-Fox, addressed in some depth the seriousness of ensuring conformity with the language of CPLR § 2106:
It is first noted that plaintiff’s expert affirmations failed to comply with the requirements of CPLR § 2106. Plaintiff submitted documents titled “expert affidavit” from Dr. Englander and Dr. Papish, both physicians who were not licensed to practice medicine in New York. While the newly amended statute permits parties to submit affirmations rather than notarized affidavits, plaintiff’s out-of-state experts failed to affirm by the specific language of the statute. Instead, both “affidavits” merely state that the witness hereby affirms under the penalties of perjury, which is not in substantial compliance with CPLR § 2106. (See generally Nelson v. Lighter, 179 A.D.3d 933, 116 N.Y.S.3d 360 [2d Dept. 2020].) This Court recognizes that defendants did not oppose plaintiff’s motion on this ground. However, it is incumbent on the Court to uphold the integrity of the laws of New York, and ensure compliance by all parties. Further, the amendment to the statute was not made in an effort to lessen the seriousness of the affirmation and the consequences of making false statements, but instead was meant to reduce the burden of seeking a notary public to obtain a properly sworn affidavit. In reviewing the documents submitted, it is clear that they lack compliance with CPLR § 2106 in both form and substance. This error is not harmless or ministerial, as the brief language affirmed to by Dr. Englander and Dr. Papish did not demonstrate their acknowledgement of the import and seriousness of their statements made in the document as required by statute, and therefore cannot be considered by the Court. (CPLR § 2106 Advisory Committee Notes [“While attorney always have a professional duty to state the truth in papers, the affirmation under the proposed rule gives attorneys adequate warning of the possibility of prosecution for perjury for a false statement”].)
However, in Gao v. Coconut Beach/Hawaii, LLC, 83 Misc. 3d 1223(A), 212 N.Y.S.3d 815, at *3 (N.Y. Sup. Ct. 2024) (emphasis supplied), the Honorable Richard Reed, J.H.O., specifically wrote in his Decision and Order granting leave to enter a default judgment dated June 26, 2024, that “[t]he court notes that plaintiff submits with this motion an affirmation of plaintiff dated May 23, 2024, verifying his complaint. CPLR 2106, as amended on January 1, 2024, permits affirmations to be made by “any person” as long as it is stated “to be true under the penalties of perjury.” Because the affirmation is in conformity with the amended CPLR 2106, the complaint constitutes admissible proof for the purposes of this motion.” This is very straightforward: Because the affirmation is in the correct form as set forth in the statute, the Court accepted it.
This is a sobering morality tale of what happens to attorneys who do not bother to read the language of the statutes they rely upon. In today’s age of copy and paste, there is literally no excuse not to take the proper language straight from the statute itself. And in today’s age of “false news” and “deepfake,” the Courts are wise to take potentially perjurious submissions extremely seriously.
In sum, the amendments to CPLR § 2106 making it easier to submit documents from everyone are most welcome, but it appears as though the courts are on the lookout for those who submit papers failing to comply with the amendments. For that reason, it may be wise to have the text of CPLR § 2106 bookmarked until you’re able to memorize it.
Special thank-you to Professor Michael Hutter of Albany Law School and his wonderful CLE, 2025 CPLR Update, held through the auspices of the New York State Academy of Trial Lawyers, which I find to be a wonderful organization. Prof. Hutter drew special attention to this statute in that program, inspiring me to write this blog piece.
March 25, 2025
By Laura Trachtman
One of the questions I get most often from panicked clients is this: “I got served with a subpoena. What do I do??” Usually, it’s a tempest in a teapot, but sometimes it’s not. Let’s break it down a little bit.
There are many, many different types of subpoenas: subpoenas in criminal matters, in civil matters, in administrative matters. There are also different types of subpoenas: subpoenas asking the recipient to produce documents, and subpoenas asking the recipient to testify. For brevity’s sake, I’m going to address the singular most common subpoena to cross my desk: the subpoena duces tecum in a civil matter in the New York State courts.
I was about to reach for my father’s copy of Black’s Law Dictionary to get the actual Latin definition of the term, but no one wants that. [If you want that, subpoena is Latin for under penalty, and subpoena duces tecum is Latin for under penalty you shall bring with you.] A subpoena duces tecum is a subpoena asking the recipient to produce documents or evidence that is in their custody (i.e., they have them at their home or office) or control (they don’t possess the documents but can get hold of the documents). The form of the subpoena can shift a wee bit, but that’s what the subpoenaing party wants from the person being subpoenaed.
Who is the subpoenaing party? I’m glad you asked. Chances are good that it’s an attorney representing a client who is currently a party to a matter in the state courts. If it is, that’s the best option for the person being subpoenaed. Attorneys are allowed to issue subpoenas on behalf of their clients during a case. Here’s the catch: Attorneys do not have enforcement power, so that subpoena is a paper tiger.
Most serious is when the subpoena is issued by a judge. The courts naturally imbue their justices with enforcement power, but enforcing a So-Ordered subpoena, which is a subpoena that a judge has reviewed and signed and thus carries the weight of the court behind it, can be a real pain.
Finally, some jurisdictions allow a clerk of the court to issue a subpoena, and New York Supreme Court is one of those, but like the subpoenas issued by an attorney, this is without teeth. If you really want to be able to enforce your subpoena, you must convince a judge to sign it.
I’ve discussed enforcement of the subpoena, but what does “enforcement power” really mean? Broadly speaking, it means that if the judge tells you to do something (or don’t do something), you’d better obey, or else the judge can punish you by, among other things, holding you in contempt of court. (I was once banned from a courtroom for life, but that’s a story for another time.) The penalties associated with being held in contempt of court include a fine and a term of imprisonment. Best not to make that judge angry by disobeying the judge’s order.
In sum: what you do when you’re served with a subpoena really depends on who has issued the subpoena, and whether disobeying the subpoena means you’re going to get hauled into Court to face an irate judge, or whether absolutely nothing will happen to you.
