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Decision Rejects Use of “Quick Peek” Agreements Under Federal Rule of Evidence 502

January 1, 0001

 

A recent order by U.S. District Court Judge Karen Humphreys of the District of Kansas calls into question the viability of “quick peek” nonwaiver agreements under Federal Rule of Evidence 502. Spieker v. Quest Cherokee, LLC.[1] If followed, the ruling could limit the extent to which Rule 502 enables parties to achieve cost savings in privilege reviews, one of the Rule’s stated purposes.[2]

In Spieker, plaintiffs in a proposed class action involving disputed mineral interests moved to compel the production of emails. Defendant argued that the requested production would impose undue burden and cost, including an estimated $250,000 in attorneys’ fees to review the emails for privilege and relevance.[3]

To reduce the asserted costs, plaintiffs proposed that if defendant turned over all of the requested emails with no privilege review whatsoever, plaintiffs would agree to return any privileged documents without asserting waiver — also known as a “quick peek” agreement.[4] Plaintiffs argued that defendant would thereby be relieved of the cost of its attorneys’ time spent reviewing documents for privilege.

Nonwaiver agreements between parties are contemplated by Rule 502(d) and (e). Rule 502(d) provides that “[a] Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other Federal or State proceeding.”[5] Rule 502(e) provides that “[a]n agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.”[6] The Advisory Committee Note to Rule 502(d) specifically identifies “quick peeks” as one form of agreement envisioned by the Rule:

For example, the court order may provide for return of documents without waiver irrespective of the care taken by the disclosing party; the rule contemplates enforcement of “claw-back” and “quick peek” arrangements as a way to avoid the excessive costs of pre-production review for privilege and work product.[7]

The Spieker court, however, did not consider plaintiffs’ proposal under Rule 502(d) or (e). Instead, the court reviewed the proposal under Rule 502(b), which governs the inadvertent production of privileged documents. Rule 502(b) requires parties to take “reasonable steps to prevent disclosure” as well as “reasonable steps to rectify” an inadvertent production, in order to avoid a finding of waiver.[8] The court opined that under 502(b), producing documents with no prior privilege review would be per se unreasonable:

The difficulty with [plaintiffs’ proposal] is that Rule 502(b) preserves the privilege if “the holder of the privilege or protection took reasonable steps to prevent disclosure” of the privileged material. Simply turning over all ESI materials does not show that a party has taken “the reasonable steps” to prevent disclosure of its privileged materials and plaintiffs’ proposal is flawed.[9]

Although the court indicated that the reasonableness of steps taken to protect privilege is best determined on a “case-by-case basis,” it found that “some effort to protect privileged materials” is required to satisfy Rule 502(b).[10] Ultimately, the court granted the motion to compel, finding that defendants’ cost estimates were inflated.

The analysis in Spieker exposes a possible tension between Rule 502’s encouragement of nonwaiver agreements and its requirement of reasonable measures to protect privilege. One could argue that producing documents under a “quick peek” agreement should not require a reasonableness analysis under Rule 502(b), since it would appear to reflect a voluntary — rather than an accidental — production of privileged information. Otherwise, Rule 502(b) would restrict the types of nonwaiver agreements available to parties under Rule 502(d) and (e).

On the other hand, Spieker did not involve a true nonwaiver agreement, but rather one party’s unilateral proposal that the other party did not accept. Nevertheless, if followed by other courts, Spieker may mean that even true nonwaiver agreements must contain at least some privilege-protecting measures in order to satisfy the reasonableness standard of Rule 502(b) while promoting the cost-saving aims of Rule 502(d) and (e).


[1] Spieker v. Quest Cherokee, LLC, No. 07-1225-EFM, 2009 WL 2168892 (D. Kan. July 21, 2009).
[2] FED. R. EVID. 502 advisory committee’s note.
[3] Spieker, 2009 WL 2168892, at *2-*3.
[4] Id. at *3.
[5] FED. R. EVID. 502(d).
[6] FED. R. EVID. 502(e).
[7] FED. R. EVID. 502(d) advisory committee’s note.
[8] FED. R. EVID. 502(b).
[9] 2009 WL 2168892, at *3.
[10] Id. at *3, n.6.