Often in litigation, parties faced with overbroad discovery requests and
large amounts of data are tempted to produce everything that hits on search
terms to the other side without looking at it, or after performing minimal
searches. The idea is that this will avoid discovery battles, shift the costs of
the review to the other side and bury them with data. Opposing counsel will be
hard-pressed to complain, since they asked for it. Parties in this situation often consider “quick peek” or “clawback” agreements to avoid waiver of privilege. See Fed. R. Civ. P. 26(b)(2) advisory committee’s note,
2006 amendments. The quick peek process involves one party making certain
requested material available to the requesting party and allowing the requesting
party to review all the data within a set period of time and select the
documents to be formally produced. See id. The parties agree that any
privilege in this set of documents is not subject to waiver. The producing party
then screens the more limited set of documents chosen for privilege and produces
the documents in the usual fashion. See id. A clawback agreement is an
agreement that if any privileged documents are produced, the producing party may
“claw” them back without waiving the privilege.
Problems occur, however, when one party tries to force an unwilling opposing
party to produce large volumes of documents that have not been reviewed prior to
production by arguing that there is minimal burden in such a production, because
the documents need not be reviewed if a “quick peek” or “clawback” agreement is
in place. Many companies do not want to agree to such an arrangement, and should
not agree to it, as privileged documents usually cannot all be caught by
searches and once they are released, the bell cannot be unrung. Further, in
today’s environment of heightened data security, it is dangerous for companies
to release large volumes of data to parties who may not have stringent security
procedures and where many of the documents may include personal information such
as social security numbers and proprietary information. Fortunately, courts have
been averse to forcing this type of arrangement on an unwilling party. See
Good v. Am. Water Works Co., Inc., 2:14-01374, 2014 WL 5486827, *1, 3 (S.D.
W. Va. Oct. 29, 2014) (refusing to force producing party to forego an
eyes-on-document review in the interest of speed and allowing producing party’s
more “cautious approach” to discovery); and Mgmt. Comp. Group Lee, Inc. v.
Okla. State Univ., No. Civ. 11-967, 2011 WL 5326262, *4 n.6 (W.D. Okla. Nov.
3, 2011) (declining to impose “quick peek” provision “on an unwilling party”).
A long-recognized principle of discovery is that it is the producing party’s
right to determine what is responsive to the litigation out of its own
documents. See Fed. Deposit Ins. Corp. v. Bowden, No. CV 413-245, 2014 WL
2548137, *8 (S.D. Ga. June 6, 2014) (noting that “[w]hile the [plaintiff] must
respond to defendants’ discovery and inspect its own records to do so, it need
produce only those documents that are responsive to the opposing party’s
requests”) (citations and quotations omitted); In re eBay Seller Antitrust
Litig., No. C07-01882, 2010 WL 2836815, *4 (N.D. Cal. July 19, 2010)
(refusing to allow receiving party to identify relevant documents out of a set
of documents produced by eBay in a separate action and noting that this would be
an “abnormal process that reversed the role of who searches for and identifies
relevant material”); and McCormick v. City of Lawrence, Kan., No.
02-2135, 2007 WL 38400, *4 (D. Kan. Jan. 5, 2007) (refusing to allow receiving
party to “serve as the filter for determining the relevant footage” out of
producing party’s voluminous video recordings).
Indeed, the requesting party has no right to possess documents that are not
relevant to its requests for production. See Gen. Elec. Co. v. United
States, 3:14 cv 00190, 2015 WL 4478294, *2-3 (D. Conn. July 22, 2015)
(finding that receiving party “has no right to over-production of materials
beyond the scope of its subpoenas” and noting that a low percentage of documents
produced out of the total documents collected was not sufficient evidence to
infer that a party “failed to produce responsive documents”).
Some cases are more troubling, however. See Stambler v. Amazon.com,
Inc., No. 2:09 cv 310, 2011 WL 10538688, *10-11 (E.D. Tex. May 23, 2011). In
Stambler, the parties initially agreed to search terms, however the terms
returned more data than anticipated by the defendants. Id. at *9. The
court offered the defendants the option of reviewing all of the documents for
relevancy and privilege or simply running potentially privileged terms across
the document set and producing everything else. Id. at *10-11 (noting the
parties had an adequate clawback provision for this type of review). The court
reasoned that because the defendants agreed to search terms they were in a
position no worse than if they ultimately had decided to review the documents,
and also noted that the defendants had expressed no concern of confidential or
proprietary information in the data. Id. at *10. The court stated that
the plaintiff now “bears some of the risk that the agreed upon search terms are
overbroad, thereby burdening Plaintiff with unwarranted search and review
costs.” Id. at *11. The court stated, “[i]f, in light of this ruling, the
parties wish to confer and revise their agreed upon search terms to reduce the
burden on all parties, presumably they are free to do so.” Id.; see also
Murphy Oil USA, Inc. v. Fluor Daniel, Inc., No. Civ. 99-3564, 2002 WL
246439, *9-10 (E.D. La. Feb. 19, 2002) (providing option for producing party to
review documents itself or provide backup tapes to receiving party for initial
responsiveness review), disagreed with by Zubulake v. UBS Warburg LLC,
217 F.R.D. 309, 318 n.48 (S.D.N.Y. 2003) (suggesting that it is improper to
assume that “an undue burden or expense may arise simply because electronic
evidence is involved”). Parties should be very careful, when agreeing upon
search terms or search parameters to include a caveat that if the terms will
retrieve an unduly burdensome number of hits, the producing party reserves the
right to amend the terms to a more reasonable set of terms.
Producing large volumes of documents without reviewing them and subject to a
“quick peek” or “clawback” agreement is not advisable in most cases. And,
fortunately, many courts will not force this type of agreement on a producing
party without a finding of prior discovery wrongdoing. Where the quick peek
approach is a genuine option, counsel should be well-educated on what type of
confidential and proprietary information may be disclosed through the process.
If a party wishes to enter into a “quick peek” or “clawback” arrangement, it is
advisable to obtain a court ordered stipulation so that the Order will be
enforceable as against others who are not parties to the agreement and so that other
courts will honor the non-waiver agreement. See Hopson v. Mayor and City
Council of Baltimore, 232 F.R.D. 228, 235 n.10 (D. Md. 2005); and Fed. R.
Likewise, before the receiving party agrees to essentially take the burden of
discovery costs on itself, counsel should have good reason to believe the
opposing party is not capable of effectively evaluating relevancy and producing
the same. Ultimately, it is still the producing party’s right to determine which
of its own documents are relevant to the dispute.