Clawback and quick peek agreements are no longer considered the Gold Standard for protecting against the inadvertent waiver of privilege.

March 16th, 2009 | By Steve Puiszis

On a recent flight, I read the February/April, 2009 edition of Litigation Support Today magazine. Under the banner of Best Practices, was an article: “Slashing Ediscovery Costs in a Digital Universe.” One of the author’s recommendations was to negotiate a “quick peek” agreement with opposing counsel. However, care must always be exercised with quick peek and clawback agreements.

Fed. R. Evid. 502(e) confirms that a clawback or quick peek agreement only binds the parties to the agreement “unless it is incorporated into a court order.” Clawback and quick peek agreements provide no protection as to third parties. Thus, while you may avoid a claim of waiver as to information inadvertently produced to a party who signed such an agreement, other parties in that litigation who are adverse to you, and who were not signatories to your agreement, as well as parties in other cases, can claim that your quick peek agreement is not enforceable against them. They will argue that allowing your opponent to potentially view privileged documents without taking any precautions to ensure that privileged information was not reviewed by opposing counsel (other than simply entering into the quick peek agreement) waived attorney-client privilege and the work-production protection as to them. For further insight into the use of quick peek and clawback agreements, see Hopson v. City of Baltimore, 232 F.R.D. 228, 244 (D.Md. 2005).

At one time, quick peek and clawback agreements were the best available option when seeking protection against the inadvertent waiver of privilege. However, they are no longer the only game in town. Non-waiver orders under Fed. R. Evid. 502(d) have supplanted the use of clawback and quick peek agreements as the gold standard to follow.

Rule 502(d) authorizes a federal court to enter a non-waiver order, and once entered, a disclosure of privileged information in that proceeding does not constitute a waiver of attorney-client privilege in any other state or federal proceeding. Moreover, the agreement of the parties is not a prerequisite to the entry of a non-waiver order under Rule 502(d), nor to the enforceability of such an order. Fed. R. Evid. 502 requires no particular showing be made before a non-waiver order is entered, and seemingly, a district court should be able to enter such an order in a given case sua sponte under its inherent authority to supervise the course of discovery and to control its documents.

Where a state court order provides that the disclosure of privileged information or work product does not constitute a waiver of those protections, that order should be enforceable in a federal proceeding by virtue of 28 U.S.C. §1738. However, Rule 502 does not address the impact which the inadvertent disclosure of privileged information in one state court proceeding has on subsequent state court proceedings. That still is exclusively governed by state law.

So what’s the bottom line? While they are not fool proof, use non-waiver orders in your cases whenever possible. Clawback and quick peek agreements should be relegated to state court litigation where the judge is unwilling to enter a non waiver order.

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