Electronic discovery was originally viewed as a much more efficient way of collecting documents in the course of discovery. That ease of storage, search, and retrieval, however, led to the exponential growth of the volume of data being collected and reviewed. This has led to more burdens and more discovery disputes. Grappling with the associated delays and discovery motions, courts have fashioned more creative discovery processes. One such mechanism is the “quick-peek” agreement. Viewed as a mechanism for parties to exchange data quickly without the fear of waiving privilege or its subject matter, courts started to consider the mandatory use of the quick-peek to streamline discovery in 2014.

On Oct. 29, 2014, Judge John T. Copenhaver of the Southern District of West Virginia issued an interesting order that set forth the court's authority to order the “quick-peek” of privileged documents over a party's objection under Federal Rule of Evidence (FRE) 502. Good v. Am. Water Works Co., No. 2:14-01374, 2014 WL 5486827 (S.D. W.Va. Oct. 29, 2014). In Good, the parties had agreed to use technology assisted review to outline the scope of data to be produced. Id. at 2. Plaintiffs requested a quick-peek order to prevent defendants from engaging in a privilege review prior to production. Id. at 1. The court found, however, that a quick-peek order was not yet necessary—that defendants had not shown any signs of delaying discovery as a result of their privilege review, and there was not yet a dispute over documents being withheld as privileged. Id. at 3. In its dicta, however, the Good court emphasized the value of a quick-peek order as a means to hasten discovery, expressly noting it was within the court's inherent power to enter such an order even over objection of a party. Id.

After Good, only one other federal district court issued a quick-peek order over a party's objection as an alternative to issuing a discovery sanction where it found the defendant's privilege log inadequate and that the defendant had refused to cooperate with plaintiff. Other than the Summerville decision, there was no decision taking that position—until October 2017. Summerville v. Moran, No. 14-cv-2099, 2016 WL 233627 (S.D. Ind. Jan. 20, 2016).

In Fairholme Funds, the U.S. Court of Federal Claims ordered the government—over the government's objection—to produce 1,500 documents for a quick-peek, which had been withheld under the “deliberative process and bank examination privileges.” Fairholme Funds v. United States, No. 13-465 MMS, 2017 WL 4768385, (U.S. Fed. Cl., Oct. 4, 2017). Unlike Summerville, where the quick-peek was ordered as an alternative to sanctions, the Fairholme court recognized that “plaintiff does not allege and the court does not find that the government has failed to satisfy its discovery obligations …” Id. at 8. Instead, the court ordered a quick-peek as a method for moving the case and discovery along more quickly. Noting that previous motions to compel had resulted in additional disclosures, the Fairholme court found “and the government concedes, the government's production of documents in this case has been piecemeal.” Id. In a pragmatic fashion, the court reasoned that “if the court were to deny plaintiffs' request …, plaintiffs would file another motion seeking the court's in camera review of all of the remaining 1500 documents.” Id. at 9. Essentially deciding that it would rather have plaintiffs' counsel conduct the review than the court, the Fairholme court ruled that “[g]iven the court's heavy caseload and limited resources, the use of the quick-peek procedure is a much more viable and attractive option.” Id. To support this result, the court stated that, “[f]irst and foremost, it is 'axiomatic that a trial court has broad discretion to fashion discovery orders.'” Id. The court then rejected the government's argument that requiring a quick-peek would run afoul of Rule 502(d) of the Federal Rules of Evidence: “[T]he purpose of the rule was to address two issues not relevant to the current dispute—the need to provide protection for inadvertently disclosed materials and the need to address the high cost of discovery in cases involving large quantities of ESI … .” Id. Likewise, the court rejected the government's argument that allowing its adversary to review the content of privileged documents would destroy the protection of the privilege. The court's rationale on this point elides the fact that information will inevitably become known by the adversary. Rather, the court focuses on the idea that there is a clawback mechanism for the documents and that the protective order prohibits parties from using privileged information: “Thus, although there is no way to unring a bell that has already been rung, both parties can be assured of the fact that pursuant to the protective order already in place, protected information—which includes both confidential and privileged information—is just that.” Id. at 10. In rejecting the government's reference to the position taken by The Sedona Conference, the court concluded by stating, “The court's sole purpose in utilizing the procedure is to bring jurisdictional discovery to an end so that the case may move forward.” Id. at 11.

There is no dispute that the costs and burdens associated with electronic discovery and especially the care of privileged materials are growing. And it is generally accepted that courts have the discretion to fashion their discovery protocols. But, due to the unintended consequences of such non-consensual quick-peek orders, courts should remain close to the teachings of the Sedona Conference, which find that “although a court may enter a Rule 502(d) order allowing the parties to engage in a 'quick-peek' process, the court cannot [or should not] order a quick-peek process over the objection of the producing party” as this “might implicate due process concerns.” The Sedona Conference, “Commentary on Protection of Privileged ESI,” 17 Sedona Conf. J. 99, 140 (2016). They further observed that FRE 502 “was designed to protect producing parties, not to be used as a weapon impeding a producing parties' right to protect privileged material.” Id. Other than its concern about the added burden to the court in having to conduct an in camera review, the objectives of the Fairholme court could have been accomplished by having the court—or a neutral discovery master—conduct the quick-peek rather than opposing counsel. In that way, the discovery dispute could be quickly advanced without the risk of adversaries learning protected information. And no bell would need to be “unrung.”

Thomas Rohback is a partner and Brooke Oppenheimer is an e-discovery attorney at Axinn, Veltrop & Harkrider.