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SDNY Order Provides That Special Master Review 3,300 Page Privilege Log

Posted on June 18th, 2018

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In Winfield v. City of New York (Case No. 15-cv-05236, (S.D.N.Y. May 10, 2018), New York Magistrate Judge Katherine H. Parker denied Plaintiff’s request to take a “quick” look at Defendant’s 3,300-page privilege log. Instead, the judge ordered that a special master review the documents.

Winfield involves plaintiffs who are seeking redress for alleged discrimination in public housing offered by the defendant. Through discovery, Plaintiffs sought various documents from the city’s housing and planning departments to support their claims. In June 2017, Defendant sought return of a privileged document which had been accidentally produced in court. This return was requested pursuant to the terms of a stipulated Clawback Agreement. Defendant’s clawback request further prompted discussion between the parties and the court about whether the Defendant had been overly inclusive in designating documents as privileged.

In July 2017, the plaintiffs were directed by the court to identify certain documents from the Defendant’s privilege log that the Defendant had withheld due to deliberative process privilege. The Defendant was allowed to re-review these documents to determine whether it should maintain its claim of privilege for each document.

Following this review, the Defendant claimed privilege as to 27 of the documents and withdrew privilege designations from 51 other documents. The court ordered the Defendant to submit all documents in question to the court for review to determine the validity of the privilege designations.

The Plaintiffs contested the defendant’s failure to respond (per objection) to certain questions during depositions on the basis of privilege, including attorney-client privilege, work product privilege and deliberative process privilege. Plaintiffs then submitted a letter seeking privilege rulings on 20 of the deposition questions (questions where the Defendant’s witnesses were instructed by counsel not to respond.)  Privilege objections were withdrawn from six of these 20 questions and the Defendant provided answers to these six questions to the Plaintiffs.

The court granted Defendant’s Clawback Demand in February 2018. The Plaintiffs’ motion to compel production of certain documents was granted in part and denied in part.

In April 2018, the Plaintiffs voiced concerns about the amount of documents that the Defendant had designated as privileged, totaling near 3,300. The Plaintiffs’ requested a “quick peek” at these 3,300 privileged documents, stating that they only required a few weeks to review them. Judge Parker denied the request, instead stating that a special master should be retained to conduct the privilege review of these documents.

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