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. When faced with a quick deal, here are some considerations to consider: As discussed 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 passes through document productions. 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. The circumstances of this case will determine whether “reasonable” efforts were made to prevent the production of privileged information. Counsel should consider (1) reaching an agreement with opposing counsel on the necessity and scope of a privilege review, and (2) negotiating an appropriate “quick glance” or “recovery” agreement. As part of a quick agreement, the requesting party first reviews the referring party`s documents and determines what needs to be submitted. The producing party then conducts a lien check and asserts its claim to privilege. Under a “salvage” agreement, the producing party performs its verification of privileges prior to production and reserves the right to request the return of accidentally produced privileged communications. In federal court, the agreement should be part of a confidentiality order under F.R.E.

502(d) for maximum protection of privilege in subsequent proceedings in federal or state courts. Quick Peek agreements differ from recovery agreements in that they are used when there is no document-by-document review prior to production. Unlike quick preview agreements, recovery agreements review documents before production and the retrieval provision is used to return inside information that falls through the cracks during the review process. Quick overview agreements are generally used in cases where SEAs are large and virtually cannot be verified in their entirety. Therefore, the producing party collects and produces documents with little or no examination, based on the understanding that the preferred material is returned. Often, in the context of quick agreements, the requesting party examines the documents and indicates to the producing party the documents it considers relevant and relevant to the case. Quick overview agreements should also explicitly state that disclosure of privileged material does not waive applicable privileges. At the same time, the agreement should also state that the conclusion of the agreement does not in any way prevent the parties from challenging the resulting designations of privilege made by the parties. Instead, the defendants relied on keyword search technology to create a series of responsive, non-privileged documents. When the defendants discovered that their productions contained privileged communications, they sent the plaintiffs an amended production and a protocol of privilege, as well as a request for the return of previous productions. The applicants refused to return previous productions. In response to the defendant`s request to force the return of protected documents, the court sided with the plaintiffs.

In deciding the application, the court applied the well-known five factors test for unintentional production under the federal law. The court only had to consider the first factor, “the relevance of the precautions taken”, to dismiss the defendants` claim. The “sheer volume” of production greatly increased the likelihood of unintentional production and “indicated the need for more than minimal effort” to protect the defendants` privileged communications. The court concluded that the defendants` full use of technology was inappropriate in the circumstances. The Court quickly concluded that it had not adopted a clear rule requiring a review of privilege in each case. He noted that there might be circumstances in which an expedited investigation would preclude the review of privilege and suggested that, in such cases, “quick glance” or “recovery” arrangements would be appropriate. 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. Obviously, quick deals are not suitable for all cases, and if they are used, the lawyer should carefully check the wording of the agreement. 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. In order to ensure that collections of documents prepared under rapid overview agreements contain relevant information, parties should consider language that requires a producing party to believe in good faith that the information produced is likely to contain information that responds to the requesting party`s requests for investigation. Rapid review agreements often require receiving parties to return irrelevant documents, and if a dispute arises about what is relevant, they must meet and deliberate in good faith on the issue before raising the issue in court. In Blythe v. Bell, the defendants produced two large productions of emails and attachments to the plaintiffs. To create the productions, the defendants did not check any documents for responsiveness or privileges.

.