However, problems arise when a party attempts to force a reluctant counterparty to provide large quantities of documents that have not been verified prior to production, arguing that there is a minimal burden in such production because the documents do not need to be reviewed if there is a « quick glance » or « salvage » agreement. Many companies do not want to accept such an agreement and should not accept it, because not all privileged documents can usually be seized by searches and once they are released, the bell can no longer be rung. In addition, in today`s environment of increased data security, it is dangerous for companies to share large amounts of data with parties that may not have strict security procedures in place and where many documents may contain personal data such as social security numbers and proprietary information. Fortunately, the courts were reluctant to impose this type of agreement on a reluctant party. See Good v. Bin. Water Works Co., Inc., 2:14-01374, 2014 WL 5486827, *1, 3 (S.D. W. Va. October 29, 2014) (refusal to force the producing party to refrain from reviewing documents for the sake of timeliness and to allow the producing party to take a « more cautious approach » to discovery); And Mgmt.
Comp. Group Lee, Inc.c. Okla. State Univ., No. Civ. 11-967, 2011 WL 5326262, *4 n.6 (W.D. Okla. November 3, 2011) (rejection of the « quick glance » provision « of a reluctant party »).
The court did not accept the AEI`s argument, noting that the disclosure of privileged documents to experts is « outside » the parties` recovery agreement and fre 502. The court found that it was irrelevant whether the documents had been inadvertently disclosed due to the light line disclosure rule of FRCP 26. Quick overview agreements generally stipulate that when a party receives documents that appear to be privileged, it must inform the producing party in writing and identify the material. Similarly, rapid review agreements often stipulate that if the producing party becomes aware of preferred materials in production (through the receiving party or otherwise), it must resolve the issue quickly. Since documents created under the Quick-Peek agreements are not reviewed prior to production, the parties must agree to keep the documents strictly confidential, thus prohibiting the disclosure of the information to third parties, except in very limited circumstances. As we saw in a previous article, due to the amount of electronically stored information (ESI) that parties must consider in modern litigation, litigants often enter into « salvage » agreements that provide for the return of privileged information that goes into the production of documents. The power for collection agreements is often federal Rule of Evidence 502, which provides for the return of privileged information inadvertently created by counsel and client. Rule 502 also allows « quick peek » agreements, another type of eDiscovery agreement that requires feedback from inside information contained in the creation of a document.
Arguing that it had inadvertently disclosed the privileged documents to its expert, the AEI sought to apply the recovery principles of FRE 502 to the disclosure of experts under Rule 26(a). But the court easily broke through this argument, concluding that the collection agreement does not apply because it applies to party-to-party disclosures, not disclosures to experts. FRCP 26 regulates disclosure to experts, and the disclosure of privileged documents to experts waives privilege, whether it is disclosed intentionally or accidentally. In litigation, parties faced with overly broad discovery requests and large amounts of data are often tempted to bring anything that encounters search terms to the other side without looking at them or for minimal searches. The idea is that it avoids discovery battles, shifts the cost of verification to the other side, and buries it with data. Opposition lawyers will find it difficult to complain because they have asked for it. Parties in this situation often consider « quick glance » or « recovery » arrangements to avoid renouncing privileges. See Fed. R.
Civ. P. 26(b)(2) Note by the Advisory Committee, 2006 amendments. The Quick Peek process involves a party providing the requesting party with certain requested documents and allowing the requesting party to review all the data within a specified time frame and select the documents to be formally created. See id. The parties agree that a privilege in this set of documents is not devoid of purpose. The producing party then checks the more limited set of documents selected for privileges and creates the documents in the usual way. See id. A collection agreement is an agreement whereby, when privileged documents are presented, the producing party can « recover » them without sacrificing privilege. As mentioned earlier, when using quick preview agreements, there is little, if any, verification of pre-production documents. However, parties responding to requests for documents should conduct at least a minimum privilege check to identify clearly privileged records. B for example by performing basic keyword searches for the names of lawyers and law firms.
Conducting a review of the minimum privilege precludes the argument that the producing party did not take steps to prevent the disclosure of privileged information. This is important because, as we have seen in this case, failure to take reasonable steps to maintain the confidentiality of privileged information could lead to claims of waiver of privilege. Therefore, the defendants should conduct a certain level of privilege review, and the Quick Peek agreement should reflect the fact that a review has taken place. The agreement could also require the defendant to establish a record of retained documents and also stipulates that if the defendant conducts at least a minimum privilege check and provides a privilege protocol, these measures will be considered reasonable precautions to prevent the accidental disclosure of privileged material. A federal district court ruled that the alleged inadvertent disclosure of privileged documents by a lawyer to testifying experts resulted in a waiver of privileges. The waiver took place although the parties had already signed an anti-waiver recovery agreement that regulated unintentional disclosures. Great-West Life and Ann. Dans. Co. v Am. Economy Ins. Co., 2013 WL 5332410 (D.
Nev. 23 September 2013). With few exceptions, paragraph 26(b)(4) of the IRMP protects a lawyer`s communication with an expert who testifies against discovery. However, the rule does not protect privileged documents that are provided to the expert for the preparation of reports. In most cases, it is not advisable to create large amounts of documents without reviewing them and without being subject to a « quick glance » or « retrieval » agreement. And fortunately, many courts will not impose this type of agreement on a producing party without any wrongdoing. .