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

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).

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