Court Orders Production of Withheld Documents Where Boilerplate Privilege Assertions and a Deficient Privilege Log Failed To Carry the Party’s Burden

Posted: September 2, 2026 / Written by: Channing J. Turner / Categories Discovery/Disclosure, Evidence

Court Orders Production of Withheld Documents Where Boilerplate Privilege Assertions and a Deficient Privilege Log Failed To Carry the Party’s Burden

On August 3, 2026, in Python Financial Solutions, Inc. v. SDCK I LLC, Index No. 653659/2025, Justice Robert R. Reed of the New York County Commercial Division ordered plaintiff to produce two documents it had withheld on privilege grounds due to insufficiently describing the privilege in written objections.

After a Rule 14 status conference, the parties submitted the dispute over two withheld documents for in-camera review, together with a privilege log and unredacted copies of the documents. The Court reiterated that the attorney-client privilege is narrowly construed, that the party asserting it bears the burden of establishing entitlement to it, and that C.P.L.R. 3122 requires the grounds for the assertion to be set forth in a privilege log or in an affidavit of a person with personal knowledge. In ordering production, the Court explained:

Here, a review of the in-camera submission makes clear that plaintiff fails to assert anything more than boilerplate claims of privilege, which are insufficient as a matter of law. CPLR 3122 requires that plaintiff adequately set forth grounds to assert a privilege, either in a privilege log, or by an affidavit of a person with personal knowledge. Here, plaintiff does neither and it is unclear to this court which specific privilege or other protection is being asserted. Plaintiff fails to identify the nature of the privilege being asserted and the privilege log fails to provide the general subject matter of the documents as required by CPLR 3122 (b). Further, in the submission provided to the court for in-camera review, plaintiff fails to submit an affidavit attesting to the authenticity of the documents and confirming the factual basis for the privilege claim or any other claimed protection.

The Court added that communications do not automatically become privileged merely because they are created by, involve, or are communicated by an attorney, and directed production within ten days.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning privilege logs and the burden of establishing the attorney-client privilege in discovery.

To read more about a party’s burden to substantiate claims of privilege, see Schlam Stone & Dolan’s related Commercial Division Blog posts on a decision imposing sanctions, though not striking the pleadings, where a party failed to list withheld documents on an updated privilege log and a decision holding that a business valuation obtained through counsel but prepared primarily for estate tax purposes was not protected by the attorney-client privilege.