Sep 29, 2009 0
Clawbacks, Quick Peeks and Cost Shifting
Not sure what to make of this, but there is a very real distinction between “clawback” and “quick peeks.”
So, if I can interpret a little bit what I think C. Spizzirri is getting at here:
Certainly, there are clawback provisions in this order, but the production of documents without review is what makes this a quick peek. The two are often presented as alternative means of protecting privilege waiver in eDiscovery, but it seems that clawback protects privilege while quick peek shifts costs. So quick peek is really clawback plus cost-shifting?
It’s not clear what In Re: Waddell & Reed Financial, Inc., No. 4602-CC (Del. Ch., June 12, 2009), has to do with this issue, but ACS State Healthcare, LLC v. Wipro, Inc. and Wipro, Ltd., No. 4385-VCP ( Del. Ch., July 23, 2009) talks about the quick peek stipulation:
The Stipulation permits the parties to the action to produce documents, without first engaging in a page-by-page review and without risk that such production would constitute a waiver of attorney client privilege.
I’m not sure that there OUGHT to be a distinction. The question is of risk is an area where transparency is important and deserving of more than cursory acknowledgment. The focus should be, first, on protecting the client’s interests, and THEN protecting counsel.
The protections in the FRCP are largely to protect counsel [e.g. from malpractice claims], not the client, so counsel should always pursue clawback protection, –whether or not production is pursuant to a “quick peek” arrangement. Further, I would argue that even quick peeks should be subject to negotiation as to prior searches, that can be used to unilaterally pull documents that bear a “high probability of retention.”
This class of documents includes any document which bears universally understood indicia of irrelevance or privilege such that the risk to the client of production is unbearable. Which means that consultation with the client is imperative, prior to accepting any level of broad production regime. Stuff like travel schedules and Amazon receipts need to go through, as I argue, so that he opposing party has the ability to decide upon relevance.
This can take place at the meeting between the parties to negotiate search terms, with a difference: the searches run are not those for production in general, but those, specifically, that address open and obvious “non-producability.” Maybe all counsel does is pre-tag them, but something more needs to happen than a mere data dump.
And, therefore, discovery should NEVER be produced without at least a baseline series of queries. The difference is that the cost of a comprehensive review is not needed to protect the client’s interests, because the risk of loss (producing critical documents that ought to have been held back) can be somewhat mitigated.
Clawbacks aren’t there to protect stupid-but-inadvertent disclosures [i.e. all emails from counsel marked "Contents are for C-Level eyes only from counsel subject to attorney-client privilege" really ought to be pulled, clawback or no].
Similarly, quick peeks should not reward the diligent at the expense of the lazy: design the quick peeks to protect the client’s interests,–don’t just turn stuff over.
Does anyone reallyt just dump files in total reliance of clawbacks and quick peek protections? I hope not!