New York State Court Recognizes a General Privilege Rule, But The S.D.N.Y. Carries It To An Astoundingly Impractical Extreme: Part Il

March 23, 2022

Last week’s Privilege Point described a New York state court’s unsurprising articulation of the nearly universally-applied “primary purpose” standard, and listing of the usual type of documents that fail to satisfy that standard. Most courts do not apply that test on a micro level, but some courts do.

In Enechi v. City of New York, No. 20-CV-08911 (AT) (BCM), 2022 U.S. Dist. LEXIS 14596 (S.D.N.Y. Jan. 26, 2022) (Moses, J.), the court allowed defendant to withhold “a series of emails” the court had reviewed in camera. But the court then took an ultra-literal approach – ordering production of the following phrases in those emails: “Good morning”; “Thank you, Maria”; “Good Day Maria”; “Thank you”; “Good Afternoon”; “Thanks again, and enjoy the weekend!”; “Good Evening”; “Sorry to bother you all about this again”; and “Thank you, Maria.” Id. at *3.

Presumably most courts apply a “no harm no foul” approach, allowing the withholding of such immaterial verbiage. It is easy to imagine the logistical nightmare of going through thousands or more emails — redacting around such inconsequential phrases.