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Proper Procedure Where Ostensibly Relevant Documents Are Not Provided in Discovery Explained

The Second Department explained the proper procedure when ostensibly relevant documents requested in discovery are withheld. The remedy for failure to follow the correct procedure here was the creation of a privilege log and in camera review of the log:

Pursuant to CPLR 3122(b), “[w]henever a person is required . . . to produce documents for inspection, and where such person withholds one or more documents that appear to be within the category of the documents required . . . to be produced, such person shall give notice to the party seeking the production and inspection of the documents that one or more such documents are being withheld. This notice shall indicate the legal ground for withholding each such document, and shall provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information: (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” (CPLR 3122).

Here, the defendant did not comply with the requirements of CPLR 3122(b), as it failed to identify the type of document being withheld, the general subject matter of each document, and the date of the document … . Under the circumstances of this case, the appropriate remedy for the defendant’s failure to produce an adequate privilege log is to allow the defendant to produce an adequate privilege log and, thereafter, for the Court of Claims to review in camera the allegedly privileged documents, along with the privilege log … . Stephen v State of New York, 2014 NY Slip Op 03505, 2nd Dept 5-14-14

 

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