Just when you thought it was safe to enter into “quick peek” and “clawback” agreements, along comes Spieker v. Quest Cherokee, LLC. The decision’s comments concerning the application of recently enacted Federal Rule of Evidence 502 seem entirely at odds with the purpose and history behind the adoption of Rule 502. One can only hope other courts adopt a more limited reading of Spieker, No. 07-1225-EFM, 2009 WL 2168892 (D. Kan. July 21, 2009).
A major goal of the 2006 amendments to Rules 16 and 26 of the Federal Rules of Civil Procedure and new Federal Rule of Evidence 502 was to reduce the cost of electronic discovery by minimizing pre-production privilege review of electronically stored information through the endorsement of “quick peek”[FOOTNOTE 1] and “clawback”[FOOTNOTE 2] agreements in those cases where the parties jointly agreed to such procedures.
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