As discussed in a previous post, as a result of the volume of electronically stored information (ESI) parties must review in modern litigation, litigants often enter into “clawback” agreements providing for the return of privileged information slipping through into document productions. The authority for clawback agreements is often Federal Rule of Evidence 502 which provides for the return of inadvertently produced attorney client privileged information. Rule 502 also permits “quick peek” agreements, another species of e-discovery agreement requiring the return of privileged information contained in a document production.
Quick peek agreements differ from clawback agreements in that they are used when there is no document-by-document review prior to production. Unlike quick peek agreements, under clawback agreements, documents are reviewed prior to production and the clawback provision is utilized for the return of privileged information falling through the cracks during the review process. Quick peek agreements are generally used in cases with voluminous ESI that, as a practical matter, cannot be reviewed in its entirety. As a result, the producing party collects and produces documents with little or no review based on the understanding that any privileged material will be returned. Often under quick peek arrangements, the requesting party reviews the documents and informs the producing party which documents it deems responsive and relevant to the case.
If faced with a quick peek agreement, here are a few considerations to keep in mind:
Is any review required at all?
As noted, when using quick peek agreements, there is little, if any, document review before production. However, parties responding to document requests should conduct at least a minimal privilege review to identify obviously privileged documents such as running basic keyword searches for names of counsel and law firms. Conducting a minimal privilege review prevents argument that the producing party took no steps to prevent disclosure of privileged information. This is important because as discussed in this case, failure to take adequate steps to preserve confidentiality of privileged information could give rise to assertions of privilege waiver. Accordingly, responding parties should conduct some level of privilege review and the quick peek agreement should reflect the fact that a review occurred. The agreement might also obligate the responding party to create a log of material withheld, and also state that if the responding party conducts at least a minimal privilege review and provides a privilege log, such steps are deemed to be adequate precautions to prevent inadvertent disclosure of privileged material.
No waiver of parties’ rights to advance or challenge privilege designations.
Quick peek agreements should also specifically state that disclosure of privileged material does not waive any applicable privilege. Concomitantly, the agreement should also state that entering into the agreement in no way prevents parties from challenging privilege designations made by producing parties.
Address the parties’ obligations regarding production of privileged materials.
Quick peek agreements generally state that if a party receives documents that appear privileged, they must alert the producing party in writing and identify the material. Similarly, quick peek agreements often state that if the producing party becomes aware of privileged materials in the production (via the receiving party or otherwise), they must address the issue promptly.
Quick peek documents are generally designated highly confidential.
Because documents produced under quick peek agreements are not reviewed prior to production, parties should agree to treat the documents as highly confidential thereby prohibiting disclosure of the information to third parties except under very limited circumstances.
Address irrelevant material.
Quick peek agreements also often require receiving parties to return irrelevant documents and, if a dispute arise over what is relevant, they must meet and confer about the issue in good faith before raising the issue with the court.
Include language to prevent against document dumps.
To ensure that document collections produced under quick peek agreements contain relevant information, parties should consider language requiring a producing party to have a good faith belief that information produced is likely to contain information responsive to the requesting party’s discovery requests.
Obviously, quick peek agreements are not suited for all cases and, if utilized, counsel should thoroughly vet the language contained in the agreement.